YAN Hailiang*

 

Abstract: To practice the constitutional provision that “The state respects and protects human rights”, we should clarify its connotation. The understanding of human rights is a natural requirement and the key. In domestic academia, human rights are considered natural rights and interpreted as “moral rights that everyone should enjoy as a human being”, hoping to provide theoretical support for the development of the system centered on the basic rights of citizens in China.Although it reveals the universal moral connotation of human rights, it does not cover the normative connotation of human rights as common international standards. Therefore, it is impossible to fully clarify the functional significance of the provision. It is conducive to scientifically clarifying the relationship between human rights and basic civil rights, better improving the institutional protection of human rights in China, and promoting the building of a community with a shared future for mankind to interpret human rights as common international standards that everyone should enjoy for human dignity based on the development of the international legal order under the Charter of the United Nations since the end of the World War II.

 

Keywords: human rights · constitutional rights · international law · common standards

 

 

The formulation and implementation of the Constitution is a sign of the progress of human civilization and an institutional requirement for the protection of human rights. As early as 2004, China included “The state respects and protects human rights” in Paragraph 3 of Article 33 of its Constitution. But in the basic context of the international legal order, it has always been the basic issue of China’s socialist human rights cause how to accurately understand and implement the normative meaning and functions of the constitutional provisions from the perspective of human rights practice.

 

In the Chinese academic circle today, the mainstream view holds that human rights, as the name implies, refer to the rights that people should enjoy as human beings, and are a universal moral right that transcends all kinds of regional cultures. Thus, the constitutional meaning of the clause “The state respects and protects human rights” is clarified. It is believed that this clause is a general clause of the Constitution,¹ does not have many details about basic rights,² clarifies the basic value on which the state depends,³ is the basic principle of the Constitution, and has established the constitutional obligations of the state.⁴ Meanwhile, some scholars understand human rights from the perspective of international common standards based on international law, believing that the constitutional provisions on human rights have made “the human rights system we have set more open” and made international and domestic standards unified,⁵ that international human rights standards should be understood in the context of “human rights principles”.⁶ Some scholars even directly understand human rights as “the rights that human beings should enjoy based on the inherent dignity of human beings and embodied in international human rights conventions (mainly the nine core conventions, especially the International Charter of Human Rights)”. They also advocate that “human rights” should replace “fundamental rights” as the basic category of constitutional law.⁷

 

It is reasonable and undeniable that there are different understandings of the concept of human rights in the era of multicultural globalization. But if it is included in the normative interpretation of the human rights provisions of China’s Constitution, it will have different functional significance for the state to fulfill its obligation to respect and protect human rights. For this reason, this paper aims to provide a better normative understanding of the protection of human rights in China through a comparative analysis of the two ways of interpreting the concept of human rights in the Constitution and their functions. To be specific, first, from the view of natural rights, this paper analyzes the normative meaning and limitation of the interpretation of constitutional human rights as natural rights. Second, following the historical changes in the concept of human rights, this paper clarifies the necessity of interpreting human rights in the Constitution as “the rights that everyone should enjoy as a common international standard based on human dignity”. Third, from the approach of international law, this paper clarifies the legal connotation of the concept of human rights in the Constitution, as well as the relationship between human rights and basic rights. Last, based on the basic connotation of human rights, this paper further clarifies the functional significance of human rights in the Constitution.

 

 

 

When China wrote “the state respects and safeguards human rights” in the Constitution in 2004, the meaning of human rights was not clarified. The academic community mainly understood it from the perspective of moral rights. According to the general theory of academia, human rights exist based on the basic requirements of morality, indicating that the basic qualification of human survival refers to the freedom or qualification that human beings should enjoy as human beings. The “human rights” refer to the rights that people should enjoy as human beings.⁸ From a historical perspective, human rights originated from the long tradition of natural law in the West, originated in the period of the bourgeois revolution in the West, accompanied human society from modern times to this day, and evolved into a global discourse⁹. From a “comparative perspective”, some scholars believe that China also “has natural laws that are expressed in its own language and functionally similar to Western natural laws, and accordingly have its natural rights”.¹⁰ However, in any case, if human rights are regarded as the rights that everyone should enjoy because of their origin, it is understood from the approach of natural rights. Human rights are another expression of natural rights.¹¹

 

As a natural right, first, human rights are natural rights or moral rights based on human nature and linked with categories such as humanity and nature.¹² Although they have legal attributes due to their close combination with citizenship and national will, legal rights are only their manifestation. Although they may depend on the protection of the state and the law, they are “external” to the state and the law. Second, since human rights are the rights that people should enjoy as human beings, they are inherent rights, universal rights that people in all times and places are born with. They are not different due to the difference of time, place, and race, and cannot be arbitrarily taken away by the state and law. Last, human rights are “self-evident” rights without the burden of proof. “Just as the head, hands, feet, heart and lungs and other organs on a person are organic parts of the body that need not be proved by us, human rights are also the self-evident and inalienable rights of a person”.¹³

 

According to the understanding of the domestic academia, especially the constitutional academia, when interpreting human rights in the Constitution from the natural rights approach, the constitutional human rights clause is considered to have specific normative meanings and both positive and ultra-positive meanings.¹⁴ On the one hand, the human rights clause means the constitutional positivization of universal moral rights. On the other hand, human rights constitute the basic value of the Constitution and become the ultra-positive value concept of the constitutional order. Specifically, when human rights become specific norms in the Constitution, they have at least the following functions.

 

First, human rights constitute the general provisions of fundamental rights.¹⁵ Human rights relate to the moral requirements we attribute to human beings, “which are connected with certain moral theories and possibly with certain anthropology”. When human rights exist in a certain legal order, because they are “subject to the specific nature of ‘local’ decisions and collective interpretations”, they “experience some legal transformation and express themselves through the institutionalized fundamental rights belonging to a certain legal system”.¹⁶ Therefore, in terms of the relationship between human rights and fundamental rights, if human rights are the source of fundamental rights, then fundamental rights are regarded as constitutionalized human rights,¹⁷ which are “rational, scientific, customary and institutional human rights in a country”.¹⁸ In this case, when human rights are written into the Constitution of China, it is natural that they are regarded as the general provisions of fundamental rights.¹⁹ For one thing, they are embodied in a series of fundamental rights stipulated in the Constitution. For another, they are also a source of unenumerated fundamental rights that the state must protect. “The part of rights that are not written in the Constitution but are inseparable from human dignity and value, such as the right to life, the right to strike, the right to appeal, etc., shall be interpreted from the human rights provisions”.²⁰

 

Second, human rights define the basic values of the country. In terms of logical form, human rights are mainly represented as a value concept that precedes the Constitution and the government, which embodies the moral ideals of all members of society and expresses the basic requirements of human dignity. As an empirical norm, human rights themselves not only define the basic value on which a country depends, but also become the highest goal of the formulation and revision of the Constitution.²¹ Therefore, from the perspective of the relationship between human rights and the Constitution, the provisions and institutional arrangements of the Constitution on basic rights and state power are carried out around human rights. Human rights are not only the source of basic rights but also the legitimacy basis of state power. The basic values carried by human rights norms are also realized through the protection of the basic rights system by the national power mechanism. On the one hand, “the doctrinal system of fundamental rights can only guarantee the unity and consistency of the constitutional system in the specific application of fundamental rights through ‘human rights clauses’ with substantive value connotation”. On the other hand, “only through the doctrinal system of fundamental rights can ‘human rights’ be effectively guaranteed and be concrete”,²² and the state’s ideology of respecting and protecting human rights can be shaped and realized.

 

Third, human rights establish the state’s obligation to protect them. When human rights are written into the Constitution, the basic principles of human rights protection are also established in the Constitution.²³ This means that “the obligation of the state to respect and protect human rights is not only a requirement of political morality but also a requirement of norms that restrict all state powers. It is a legal obligation, which occupies the core position in the whole constitutional normative system and has the highest legal effect”²⁴ For one thing, as a general provision, it provides a solid constitutional normative basis for the presumption and protection of basic rights not yet enumerated. For another, as a constitutional obligation, the protection of human rights by the state can be achieved through the legislation of the legislature on basic rights, but the key is to establish an effective constitutional review system to prevent the excessive restriction of human rights by legislative organs and other state powers, so as to ensure the effective enjoyment of human rights by everyone.²⁵

 

 

Although the interpretation of human rights in the Constitution from the approach of natural rights provides an important theoretical basis for improving the institutional protection of basic rights in China, this interpretation inevitably has a series of limitations when in the context of international law based on human rights practice.

 

First, it cannot scientifically clarify the relationship between human rights and fundamental rights in China’s Constitution. Since the 1950s, “in terms of the nature of fundamental rights, the basic view of scholars is that fundamental rights are a kind of rights granted by the state, and ‘the result of the revolutionary fight of the Chinese people’s long and heroic struggle’.”²⁶ This understanding of fundamental rights was further confirmed in the Report on the Draft Amendment to the Constitution of the People’s Republic of China made by Peng Zhen in 1982. The provisions of the draft amendment to the Constitution on the fundamental rights and obligations of citizens are an extension of the provisions of the General Principles on the national system of the people’s democratic dictatorship and the socialist social system. China’s national and social systems ensure that its citizens enjoy a wide range of true freedoms and rights in law and fact. This recognition fundamentally denies the “innate” nature of fundamental rights and affirms the decisive role of state power on fundamental rights. With such recognition, it is impossible to regard human rights as the source of fundamental rights, nor to understand fundamental rights as the constitutionalization of human rights.

 

Even if human rights were written into the Constitution in 2004 and interpreted along the lines of natural rights, it is unlikely to change the relationship between human rights and fundamental rights. The reason is that fundamental rights “reflect the social and political ideals and legal system concepts of a country and a nation in essence”.²⁷ “The kind of deliberate demonstration of fundamental rights from the perspective of the universality of values”, that is, the so-called basic conditions of human beings, “is untenable”.²⁸

 

The reason why Western academia understands human rights from the natural rights approach is derived from the natural law tradition of their own culture. It is from their natural law tradition that they regard fundamental rights as the natural rights of individuals. They are not gifts from society or any government, nor the Constitution, but existed before the Constitution.²⁹

 

Although China’s cultural tradition contains the idea of natural law, it has never played an important role in history, let alone nurtured the concept of rights in modern society.³⁰ Therefore, when some scholars try to demonstrate human rights from the socalled natural law tradition in China, they do not accurately understand the historical uniqueness of the West’s understanding of human rights as natural rights. Not to mention that human rights have been established in a series of international documents, including the International Charter of Human Rights, and there is no need to obtain a universal understanding of its legitimacy through the natural rights approach. In the discourse of international human rights, interpreting human rights from the natural rights approach is only one of many approaches.³¹

 

Even if human rights are interpreted as universal moral rights enjoyed by everyone as human beings from the perspective of natural rights, the relationship between human rights and fundamental rights in China’s Constitution will still face difficulties in interpretation. The reason is that China’s fundamental rights not only have negative rights to freedom, including the right to personal freedom and the right to freedom of expression, but also have social and economic rights that rely on the state to provide positive assistance, such as the right to work, the right to education, and the right to material aid. In a basic sense, the latter rights are hardly regarded as the constitutionalization of natural rights.³² In addition, what is more problematic is the citizens’ right to supervision stipulated in Article 41 of the Constitution. It is a basic right that Chinese citizens enjoy in accordance with the basic political system of China to supervise state organs and their staff. It is impossible to interpret it as a natural right of human beings.

 

Besides, it does not fully explain the basic value of human rights for the country. The interpretation of human rights in the Constitution from the perspective of natural rights means that whether the “human nature” on which human rights are based is understood as human freedom, initiative, need, or dignity, it is impossible to “achieve a more accurate and specific definition of what human rights are intended to protect”.³³ Therefore, the connotation of human rights must be uncertain.³⁴ Even if human rights in the Constitution are regarded as general provisions of all fundamental rights, and the connotation of human rights is determined and implemented through this system of fundamental rights, it does not mean that human rights as universal moral rights constitute the basic value of a country. Because when the people of a country formulate a Constitution to establish fundamental rights, although it incorporates the universal moral meaning of human rights, it is determined based on their cultural traditions and practices in the final analysis, reflecting the basic requirements of individual citizens living in the national community.

 

Following this logic, perhaps more importantly, although human rights are considered to establish the legitimacy basis of state power, when interpreting human rights in the Constitution only from the natural rights approach, the determination and realization of the connotation of human rights are entrusted to the hands of the state, and a series of state power institutions established in accordance with the Constitution. No matter whether the institution is the legislature which claims to represent public opinion, the judicial organ which claims to be neutral, or the constitutional review organ, whether and to what extent the value contained in human rights can be realized through the system of fundamental rights is completely left to the control of the state authority, so that the normative value of human rights for the state is not fully recognized.

 

Since the end of the World War II, human rights have not only been established as the purpose of the Charter of the United Nations but also become the common standard that countries should abide by through the Universal Declaration of Human Rights and a series of core international human rights conventions formulated thereafter. As stated in the Preamble of the Universal Declaration of Human Rights, human rights are “a common standard of achievement for all peoples and all nations” from the very beginning of their establishment, aiming to “secure the universal and effective recognition and observance of these rights and freedoms, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.” Therefore, although the state has the right of discretion in how to implement human rights through the Constitution and laws, it still needs to be bound by the common standards established by international law.

 

Last but not least, it does not provide sufficient support for the institutional guarantee of human rights. When the human rights in the Constitution are regarded as the moral rights that everyone should enjoy as a person from the approach of natural rights, the interpretation fails to fully realize that human rights are also the common standards that the state should abide by, and are legal rights established through a series of international human rights documents. Therefore, as a constitutional norm, “human rights” is not an uncertain concept, but a collective concept of all kinds of basic human rights that should be observed by the state as a common international standard. Although in the normative sense, the state mainly fulfills its human rights obligations by guaranteeing fundamental rights, this does not mean that fundamental rights are the constitutionalization of human rights, and the human rights clause in the Constitution is the normative basis for fundamental rights not enumerated.

 

As for how to infer fundamental rights not enumerated through the interpretation of constitutional norms, some scholars have pointed out that it is Article 51 of the Constitution rather than the human rights clause that can play the role of legal source of fundamental rights not enumerated.³⁵

 

Moreover, the state cannot fully fulfill the constitutional obligation of human rights protection by improving the constitutional review system. With respect to the approach of natural rights, since the human rights in the Constitution are equivalent to the general provisions of fundamental rights, to make the norms of “the state respects and protects human rights” become realistic norms is essentially equivalent to that the state ultimately needs to realize the protection of various fundamental rights through the effective exercise of the constitutional review power. As a result, whether the state’s human rights obligations are fulfilled and how effective they depend ultimately on the authoritative interpretation of the constitutional review body, so it is not fully recognized that the state’s protection of human rights through the constitutional review system is important and necessary, but not sufficient, because it lacks the dimension of international law in human rights protection.

 

 

Today, although the theory of natural rights still has extensive influence, it is inevitably questioned and criticized.³⁶ From a practical point of view, “the approach of human rights argumentation based on natural law and natural rights had a great impact as early as before World War II, but it did not successfully prevent the Nazis from trampling on human rights”.³⁷ After the changes in the order of international law since the end of the two world wars, international legal human rights theorists have pointed out that if human rights and their practice established based on the Charter of the United Nations are still interpreted with the idea of natural rights, it will not only distort the intention of the founder of modern human rights but also misunderstand human rights.38 Because “they are not reflected in the natural state or the general social principles abstracted from time and space, but the principles used in the global public political life in the modern world”.³⁹

 

 

In terms of expression, although in contemporary China, “natural rights”, “rights of man” and “human rights” are usually translated as renquan (or human rights), there are differences between the three English terms. Originating from the common tradition of natural law, “natural rights” is a concept produced and used during the European Enlightenment in the 17th and 18th centuries, while “rights of man” is the expression of “human rights” in France’s Declaration of the Rights of Man and of the Citizen in 1789.

 

Unlike the previous two, the use of “human rights” is relatively late. As a response to the two world wars and the Nazi atrocities, especially the Holocaust, it was first clearly defined in the Charter of the United Nations promulgated in 1945 and then further popularized.⁴⁰ Regarding the change of concept, although there seems to be a clear historical continuity between the three, “recent historical studies have placed this continuity in fundamental doubt”.⁴¹

 

From historical practice, whether it is “natural rights” or “rights of man”, on the one hand, it provides an absolute argument for the legitimacy of individual rights; on the other hand, it is used to describe the boundaries of state power, attempting to limit the exercise of government monopoly coercive power. “They are theoretical tools by which legitimate and illegitimate exercises of power can be distinguished. And they make sense only against the background assumption that the central issue of political life is the protection of individual freedom against foreseeable despotism or oppression.”⁴² This was true of the US Declaration of Independence in 1776 and the French Declaration of the Rights of Man and of the Citizen in 1789. As far as the French Declaration of the Rights of Man and of the Citizen in 1789 is concerned, Sieyès pointed out the difference between the rights of man and the rights of the citizen: “The former is to maintain and develop the rights which constitute the society, while the latter is the right on which society is organized. For the accuracy of language, it is better to call the former category negative rights and the latter positive rights.”⁴³ In other words, the rights of man are natural rights that should be enjoyed based on the universal moral identity of human beings. To ensure these rights better, people form a political body and become a member of it through social contracts, and thus enjoy the rights of the citizen based on membership.⁴⁴ In this sense, “rights of man” is about an entire ethnic group merging itself into a country. What is related to them is the meaning of citizenship”.⁴⁵ Therefore, in many ways, although both the “natural rights” and the “rights of man” have the universal moral connotation of transcending the sovereign state, they essentially serve the construction of a nation-state and are linked with a new type of powerful country that took off in that era. The history of both “is also about the history of the country”.⁴⁶

 

In contrast, “human rights” is considered to have an element of international law lacking in “natural rights” or “rights of man”. “The unique concept of the modern human rights cause is to set standards in international law for how all countries treat those under their jurisdiction. These standards of international law are primarily, though not solely, based on the legal rights of individuals.”⁴⁷ In the international legal order established since the end of the World War II, “human rights” was first established as the basic purpose and value basis of the United Nations, and gave the UN members the universal obligation to respect and observe human rights, and then made further clear provisions in a series of international documents based on the Universal Declaration of Human Rights. From the perspective of the function and role of human rights in the international law order, on the one hand, it tries to correct the defect of absolute national sovereignty by giving the state the obligation to provide basic social and economic benefits to all people under its jurisdiction; on the other hand, it tries to overcome the limitations of national protection of individual rights by providing backup and international relief mechanisms for domestic individual rights.

 

Therefore, the emergence of international legal human rights is precisely to fill the gap brought by the absolute national sovereignty established by the Westphalia Peace Treaty,⁴⁸ prevent the recurrence of tragedies similar to those that occurred during the Second World War, play a public role similar to the principle of justice in a world of moral differentiation, and guarantee the dignity of everyone living in a globalized world. This is also consistent with the expectations of all major moral cultures in the world. Based on this, human society attempts to use international law to set universal standards for how the states treat people under their jurisdiction, including (1) preventing harm imposed by the state or abuse of government power; (2) recognizing the fundamental equality of all; (3) to guarantee the conditions necessary for all people to live a decent or minimum good life, or, as an option, to ensure that each state performs its basic welfare state functions. “Most, if not all, of the rights contained in the Universal Declaration of Human Rights and subsequent human rights treaties can be viewed as fulfilling one or more of these three functions.”⁴⁹ From the perspective of ideological sources, although the theory of natural rights has an important impact on human rights, it is only a cultural tradition to understand human rights in a multicultural world. It is a misunderstanding to “regard human rights we encounter in contemorary global political discussions as coming from a unified natural rights model and enjoying the same characteristics”⁵⁰

 

It can be seen that in the contemporary world, there may be at least two human rights concepts. One is the concept of human rights as a universal moral right that everyone has, whether they are recognized in domestic law or international law. The other is international legal human rights.⁵¹

 

The basic difference between these two concepts of human rights is that if “natural rights” or “rights of man” are intended to serve the construction of a nation-state, then “human rights” has tried to define rights into a legal right that provides normative guidance for all nation-state sovereignty from the beginning.⁵² The theory of natural rights has been constructed for a very different purpose and in a very different historical context. For example, within the framework of Hobbes, the language of natural rights has been used to replace the natural law and social concepts of Christianity, and an alternative view of political authority has been established on it. In contrast, the concept of human rights established in international law since the end of the World War II represents a more ambitious, secular plan, which aims to adjust international practice and provide a public standard for people wherever they live. There was almost no connection between the reason for turning to the language of natural rights to provide legitimacy for the construction of a nation-state in the early modern era and the common standards that should be observed by the international community with the national sovereign state as the basic unit through human rights today.⁵³

 

Therefore, in the contemporary era, if human rights are really “the only political and moral concept that has been universally accepted”,⁵⁴ as Louis Henkin said, and its violation is a matter of common concern to the international community, then it is clear that human rights law, rather than any philosophical or similar moral human rights theory, is the authoritative universal language of modern human rights practice.⁵⁵ So why do many people still understand human rights from the perspective of natural rights? The reason may be that the mind seeks a simplified model. “In the absence of a better alternative model, we should not be surprised that philosophers insist on human rights as natural rights. This model is integrated and familiar, and makes full use of the historical continuity between the human rights movement and the earlier efforts to improve the ‘rights of man’. However, as we can see, there is a price to accepting this model: it reduces and distorts the expectations of international human rights doctrine.”⁵⁶

 

 

Although the domestic academia mainly interprets the human rights provisions in the Constitution along the route of natural rights, there are also a few scholars trying to study the route of international legal human rights.⁵⁷ Due to their respective themes, these studies have not been able to fully illustrate the necessity of interpreting human rights in the Constitution from the perspective of international law, nor have they been able to accurately grasp the normative connotation of the concept of international legal human rights, thus indicating the unique normative functions and requirements of the human rights clause.

 

As early as 2004, when human rights were first written into China’s Constitution, Wang Zhaoguo, vice chairman of the Standing Committee of the National People’s Congress, said that “making a declaration of respect and protection of human rights in the Constitution” is “conducive to our exchange and cooperation in the cause of international human rights”,⁵⁸ which to some extent provides guidance for us to interpret human rights in the Constitution from the perspective of international law. Specifically, the reasons for interpreting human rights in the Constitution from the perspective of international law are mainly the following.

 

First, it is the normative requirement of the international legal order created by China with other countries. After the end of the World War II, based on the Charter of the United Nations, the international community established an international legal order with respect for human rights as its basic value. The Preamble of the Charter of the United Nations clearly states, “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.” The text of the Charter of the United Nations clearly stipulates the purpose of “promoting and encouraging respect for human rights and for fundamental freedoms for all”, and establishes the obligation of “all Members pledge themselves to take joint and separate action in co-operation with the Organization” to achieve “universal respect for, and observance of, human rights and fundamental freedoms for all”,⁵⁹ “laying the political and legal foundation for international human rights protection”, and “the world has therefore entered the ‘era of rights’“⁶⁰ Since then, the Universal Declaration of Human Rights adopted by the UN General Assembly has been regarded as an authoritative interpretation of the meaning of “human rights” in the Charter of the United Nations,⁶¹ clarifying “the common standards that all people and all states strive to achieve”. Based on the Universal Declaration of Human Rights, the United Nations has further presided over the formulation and conclusion of a series of legally binding international human rights conventions.

 

As a permanent member of the UN Security Council, China itself is the founder and active participant in the international legal order with human rights as its basic value. As early as when the Charter of the United Nations was formulated, China, together with some other small countries and non-governmental organizations, worked hard for the adoption of articles on human rights, including Article 1, which states that human rights are one of the purposes of the United Nations, and Article 68, which requires the Economic and Social Council to establish a Commission on Human Rights.⁶² Since then, as a major participant, China has drafted the Universal Declaration of Human Rights, laying the cornerstone of the international human rights legal system. After the founding of the People’s Republic of China, although human rights have been criticized as bourgeois for a long time, China has not only actively participated in human rights activities of the United Nations since restoring its legal seat in the United Nations in 1971 but also actively integrated itself into the international legal order based on human rights.⁶³

 

When China wrote “the state respects and protects human rights” into its Constitution in 2004, it was carried out in the context of “human rights mainstreaming” initiated by the United Nations in the late 1990s, aiming at promoting and realizing human rights based on international human rights standards.⁶⁴

 

Therefore, the interpretation of human rights in China’s Constitution from the perspective of international law not only reflects the normative requirements of the order of international law but also the due meaning of China’s active development of human rights-related laws. From the perspective of international human rights practice, the basic reference for the UN Human Rights Council to carry out the universal periodic review of countries is: (1) the Charter of the United Nations; (2) the Universal Declaration of Human Rights; (3) human rights instruments joined by states (i.e. human rights treaties ratified by states); 4) voluntary pledges and commitments made by states (such as national human rights policies and/or implemented programs); and (5) applicable international humanitarian laws.⁶⁵ Among them, international legal human rights are the basic standard to judge the human rights situation of countries including China. Therefore, international legal human rights should also be the basic requirement for interpreting human rights in China’s Constitution.

 

Second, it is the internal requirement to further protect China’s basic rights. It is generally believed that the Constitution is a guarantee of civil rights. When China amended the Constitution in 2004, the main reason why “the state respects and protects human rights” was written in the first article of Chapter II, “The Basic Rights and Obligations of Citizens”, namely, Article 33, is that “it is convenient to link human rights with the basic rights of citizens and further strengthen the protection of the basic rights of citizens”⁶⁶ This means that from the perspective of the relationship between human rights and fundamental rights, the importance of human rights is to further strengthen the protection of fundamental rights.

 

From the historical context of the inclusion of human rights in the Constitution, the human rights clause of the Constitution not only reshaped the existing constitutional order of China based on the value of human rights, making China an integral part of the international human rights order but also effectively responded to the continuous criticism and attack of the Western countries on the human rights situation of China since the 1980s.⁶⁷ Among them, the landmark event was that the Chinese government released the first white paper on human rights in history, The Situation of Human Rights in China, to the world in 1991. It not only called human rights “the ideal pursued by mankind for a long time”, but also called it “the lofty goal required by Chinese socialism”, and stated the basic meaning of human rights for the protection of fundamental rights in contemporary China.⁶⁸ Since then, “the state respects and protects human rights” was written in the reports of the 15th and 16th CPC National Congress in 1997 and 2002, and was finally incorporated into the Constitution in 2004, making it an important part of the Constitution of China. In the context of globalization in which the international human rights system has already become a part of the constitutional systems of various countries, it is necessary to incorporate the perspective of international legal human rights to deeply understand how human rights can further strengthen the protection of China’s basic rights.⁶⁹

 

The interpretation of constitutional human rights from the perspective of international law can not only effectively overcome the drawbacks of the concept of natural rights, but also better meet the requirements of the protection of fundamental rights. This is mainly because the concept of international legal human rights shows that the human rights in the Constitution are not uncertain concepts based on human nature, but international common standards that all countries need to abide by to guarantee their fundamental rights. This means that the guarantee of fundamental rights by the state should be no less than the minimum core requirements established by international human rights standards. Moreover, the nature of international law of human rights also requires that the state not only fulfill its constitutional obligation to guarantee fundamental rights by improving various legal systems, including the constitutional review system but also further improve the institutional guarantee of fundamental rights by accepting the review and supervision of the UN Human Rights Council and international human rights treaty bodies.

 

Last, it is the basic requirement for building a community with a shared future for mankind. A community with a shared future for mankind is a global governance concept put forward by contemporary China to deal with various difficulties faced by human society. The community with a shared future for mankind, “as the name implies, is a community where the future and destiny of each nation and country are closely linked. We should share weal and woe, and strive to build the planet where we were born and raised into a harmonious family, and turn the aspirations of the people of all countries in the world for a better life into reality”.⁷⁰ Since the white paper China’s Peaceful Development first proposed the concept “community of shared future” in 2011, “promoting the building of a community of shared future for mankind” has not only been written in the Preamble of the Constitution in 2018, and has become an important part of China’s foreign policy, but also has been written in the resolutions of the United Nations General Assembly, the Security Council and the Human Rights Council, and has become the normative concept of the international community to improve global governance.

 

As a normative concept, the “community with a shared future for mankind” aims to inherit and carry forward the purposes and basic principles established in the Charter of the United Nations, safeguard the common values on which human society depends, and respond to the practical requirements of human governance in the era of globalization. There is no doubt that since human rights are the purpose of the Charter of the United Nations and the value basis of the international legal order, the construction of a community with a shared future for mankind must take respecting, protecting, and promoting human rights as its highest purpose and goal.⁷¹ As stated in the Vienna Declaration and Programme of Action, in the context of major changes taking place in the international arena, the people of all countries are eager to “achieve peace, democracy, justice, equality, the rule of law, pluralistic development, improve living standards and help each other in times of adversity” based on the principles of respect for human rights and fundamental freedoms for all, respect for equal rights and self-determination of peoples enshrined in the Charter of the United Nations.

 

As a normative requirement of the contemporary Chinese Constitution, the construction of a community with a shared future for mankind inevitably requires the interpretation of human rights from the perspective of international law. The reason is that although human rights are the common value of building a community with a shared future for mankind, the era of globalization is also an era of multi-cultural coexistence, which determines that the understanding of human rights by countries is bound to have different cultural traditions. When China builds a community with a shared future for mankind based on the normative requirements of the Constitution, it is bound to go beyond its cultural tradition and not regard human rights as a philosophy that depends on any special complete religious doctrine or human nature. Instead, it is required to understand human rights based on the Charter of the United Nations and from the rights as common standards stipulated in a series of international human rights conventions.⁷² When viewing human rights or demonstrating the legitimacy of human rights from one’s own cultural traditions, they will inevitably be rejected by other cultures, regarded as unique to a certain traditional culture, and as biased.⁷³

 

 

There are fundamental differences between international legal human rights theory and natural rights theory in understanding what human rights are. The theory of natural rights interprets human rights as the universal moral rights enjoyed by everyone as a person and believes that “international legal human rights” are only the reflection or embodiment of “natural rights” in international law, rather than a normative concept that can be fully justified by itself. In contrast, the international legal human rights theory regards human rights as the rights that were first established in the Charter of the United Nations after the end of the Second World War, and then clearly stipulated in the Universal Declaration of Human Rights and a series of international human rights conventions. It believes that human rights are the rights that everyone should enjoy as a common international standard based on human dignity.⁷⁴ In this sense, the theory of international legal human rights provides a human rights understanding paradigm that competes with the theory of natural rights.⁷⁵

 

 

According to the theory of international legal human rights, when interpreting human rights in the Constitution from the perspective of international law, it also contains the following basic meanings.

 

First, human rights are the rights that everyone should enjoy under international law based on human dignity. Although like the theory of natural rights, the theory of international legal human rights also understands human rights from the perspective of human dignity and believes that human rights are the rights that everyone should enjoy based on human dignity, the theory of natural rights is to provide human rights demonstration based on human dignity from the perspective of human nature, while the theory of international legal human rights holds an open attitude on how to demonstrate human rights from the perspective of human dignity, so as to avoid the continuous controversy caused by the establishment of human rights on any complete philosophical or religious doctrine in a pluralistic world.⁷⁶ It is for this reason that although Article 1 of the Universal Declaration of Human Rights recognizes the dignity of every person, “human dignity” itself is not based on some philosophical doctrine or religious doctrine, but on direct reflection on the disasters of the World War II, on the common intuition of people from different cultural traditions on how to treat people,⁷⁷ and on recognition and respect for the status of everyone living in this world as a human being.⁷⁸ In fact, from the perspective of the ideological source of “human dignity” in the Universal Declaration of Human Rights, it contains not only the concept of natural law in the Christian tradition, the Jewish or Old Testament tradition, the dignity concept of natural law,⁷⁹ but also the Confucian moral concept.⁸⁰ Therefore, the Universal Declaration of Human Rights does not and cannot provide any justification for human rights from the perspective of human dignity. As Maridan, one of the drafters of the Declaration, said, “Yes, we all agree with human rights, but only if no one asks us why.”⁸¹

 

Nevertheless, from the perspective of contemporary international human rights theory, in a basic sense, respect for human dignity is often regarded as respect for the basic interests that everyone should enjoy based on human status. Therefore, it is based on the interests of individuals under universal threat in the globalized world that international legal human rights theorists try to provide an uncontested and universal justification for international legal human rights.⁸² The establishment of human rights as a moral right is believed to be that when an interest is a sufficient reason for another subject to face a general or standard threat to the obligee, it must respect the interest.⁸³

 

Moreover, if the theory of natural rights only regards human rights as universal moral rights that everyone should enjoy, then the theory of international legal human rights not only regards human rights as universal moral rights that everyone should enjoy but also as rights in international law, a legal right. Therefore, not everyone’s universal moral rights are human rights, but only those recognized by international law are human rights.⁸⁴ The reason for this is that human rights are established as the common standard of how all countries should treat people. They are to adjust the rights with political and public moral nature between countries and individuals. They do not include those universal moral rights that are purely applicable to individuals. As international legal rights, human rights have been stipulated in the Charter of the United Nations and a series of international human rights documents based on the Universal Declaration of Human Rights from the very beginning. They are “universal” legal rights that everyone living in a globalized world should enjoy.⁸⁵ 

 

As international legal rights, human rights are a consensus requirement to safeguard human dignity in a global and diverse world. Although the theory of natural rights understands human rights as the rights that everyone has according to their nature, the natural law tradition on which the human rights argument is based is only one of the many cultures in the world. “There is no pre-theoretical concept of moral human rights widely held by people, nor is there any philosophical theory of moral human rights that enjoys such authoritative status”⁸⁶ From a practical point of view, human rights are not only considered as a requirement to guarantee the dignity of everyone in a multicultural world, but also established in international law as an overlapping consensus that transcends multicultural differences, and is specifically embodied as “the guarantee of the minimum conditions for the membership and status of all individuals in the international community”⁸⁷

 

As an international legal right, human rights are also a realistic need to better safeguard human dignity. If human rights are only universal moral rights, then after they are violated, although they provide legitimacy for a series of unique moral reactions, such as the condemnation of bystanders, the hatred of victims, the self-reproach, compensation, and repentance of rights violators, and in some cases, the punishment of the relevant political community,⁸⁸ these sanctions themselves are weak and not enough to guarantee human dignity. To better protect human dignity, as a universal moral right, human rights create a moral obligation for the political community to recognize and protect them through the law. The reason is that “in a political community composed of equal members, the law is the best and probably the only way to recognize those more important social interests”.⁸⁹ Historically, international legal human rights are the legal response of human society to the massive and systematic violations of the people during the World War II.

 

Second, human rights are the rights that everyone should enjoy against a country in accordance with international law. The theory of natural rights understands human rights as the universal rights of everyone against all others. Although the object of human rights obligations can also be interpreted as including the state, logically, there is no inevitable relationship between human rights and the state. However, “this is a moral misunderstanding of the legal nature of human rights”.⁹⁰ Because it fails to recognize that the unique feature of human rights violations is that “it is meaningful to mention human rights violations only when the violations are made or allowed by the state”, otherwise, it will become completely arbitrary to talk about human rights”.⁹¹ In contrast, the international legal human rights theory directly understands human rights as rights directed at the state, which is the constitutive norm of global practice and “the revisionist appendage of the global political order composed of independent countries”.⁹² Human rights are considered to be the rights directed at the state, which does not mean that the rights involved in human rights practice are not applied between individuals or between individuals and companies, but are mainly understood from the function of human rights in practice.⁹³ In the order of international law, which takes the state as the basic unit, “international human rights are born because the protection of individual rights by the state is considered inadequate”, and international human rights are regarded as providing additional international protection for individuals under national laws.⁹⁴

 

Since the establishment of the concept of state sovereignty by the Treaty of Westphalia, “the traditional and pre-human rights era international legal order has granted the country an impressive and extremely dangerous right and power, while at the same time only setting shocking minimum requirements for the country or a group considered to represent the country.” That is, it only requires “effective control over the territory with a relatively stable population and the ability to establish relations with other countries”, and does not “set any normative standards for what is a legitimate government.” “The international order, at least in its legal structure, does not even recognize that individuals can have rights on their own”.⁹⁵ Therefore, according to the international law order, within the territory of the state, the officials have almost total discretion in the conduct of the people, leaving the people at their disposal. However, “after the Holocaust (in the World War II), it became clear” that “since the void between moral evaluation and space for action created by the concept of national sovereignty is morally intolerable, human rights are intended to fill this void”.⁹⁶ The international community has set norms and standards on how the state should treat the people by clearly stipulating the rights of everyone based on human dignity in international law, and has set up a series of international mechanisms to monitor whether the state complies with these standards. It is in this sense that human rights are considered to be the rights enjoyed by everyone against the state, “a matter of global concern to be observed by the state as an obligation rather than a free choice”.⁹⁷

 

Last, human rights are the rights that everyone should enjoy as a common standard in accordance with international law. According to the theory of natural rights, since human rights are the rights enjoyed by everyone as a person, what rights everyone should enjoy depends on the understanding of human nature. However, “it is misleading, or at least inaccurate, to say that a person has human rights based on his human nature. One of the problems of the approach based on natural law is that what distinguishes human nature is highly controversial.”⁹⁸ Therefore, it is not clear what rights everyone should enjoy as a person. In contrast, the basic idea of the international legal human rights system is to develop an international law system for people who are considered social beings. Its main function is to provide a common standard for how states treat people under their jurisdiction.⁹⁹

 

The “common standards”, also known as the international standards of human rights or international human rights standards, refer to the norms and standards stipulated by international human rights law that countries should follow or gradually realize to ensure the dignity of everyone living within their jurisdiction, reflecting the common interests and coordinated will of the people of all countries.¹⁰⁰ As a common standard, at the minimum, human rights are embodied in various rights established by the international charter of human rights, namely the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, which are formulated on its basis. In a basic sense, human rights are embodied in the rights established in the nine core human rights conventions, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.101 These core conventions not only contain the basic content of human rights but also constitute the authoritative carrier of human rights.¹⁰²

 

Although some countries have not ratified or acceded to certain international human rights conventions, or have made reservations to some provisions of the conventions though they are parties to the conventions, due to their national conditions, we cannot deny the universal significance of human rights as a common standard established by international human rights conventions. This is because, as a common international standard, human rights are not completely equivalent to the provisions of the human rights conventions, but should be standards of behavior based on the provisions of the conventions and beyond the provisions of the conventions. It is not only a standard to be followed by the parties to the conventions, but also a standard that non-parties should strive to achieve, or seek guidance from.¹⁰³

 

As rights of common standards, human rights are designed to give equal protection to everyone in the globalized world and protect them from the threat of their own country degrading their status to a lower level.¹⁰⁴ Article 2 of the Universal Declaration of Human Rights stipulates that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other status. Furthermore, no distinction shall be made based on the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.” The Universal Declaration of Human Rights and a series of international human rights conventions formulated since then have provided the basic conditions for all people to live a decent or minimum good life by clarifying the fundamental rights required by everyone living in a globalized world.¹⁰⁵

 

 

When interpreting human rights in the Constitution from the perspective of international law, the relationship between human rights and fundamental rights must also be involved. It is generally believed that human rights and fundamental rights are based on the basic concept of respect for human beings, reflecting the normative requirements of a globalized world based on the Charter of the United Nations to jointly safeguard individual rights in both international and domestic dimensions. International human rights documents and Constitutions are often seen as substantiating the complementarity of the same right concept. “Individual rights are substantiated as fundamental rights so that ordinary individuals are given certain guarantees within their society. The purpose of substantiating the same rights in international human rights documents is to lead and guide each country to provide domestic guarantees and remedies.”¹⁰⁶

 

However, as two basic ways to protect individuals living in a globalized world, human rights and fundamental rights will inevitably differ. In a basic sense, fundamental rights adjust the constitutional relationship between citizens and their countries. They are the constitutional expression of the rights of each member of the national community based on their cultural traditions and practices, reflecting citizens’ normative requirements for the state. In contrast, human rights adjust the international legal relationship between individuals and the state, transcending the “widely differentiated value system” between countries.¹⁰⁷ They are the normative expression of the rights that everyone living in a globalized world should enjoy, reflecting the universal requirements of the international community for countries to respect and protect the dignity of everyone within the scope of their jurisdiction.

 

From the perspective of China’s Constitution, the differences between human rights and fundamental rights are further reflected in the following aspects.

 

First, there are differences between the subject and content of human rights and fundamental rights. Generally speaking, as a right guarantee law, although the Constitution also guarantees the rights of non-citizens, it mainly refers to the protection of citizens’ fundamental rights. Therefore, although Article 32 of the Constitution generally stipulates the rights of foreigners, not only “protecting the legitimate rights and interests of foreigners in China”, but also “granting the right of asylum to foreigners who seek refuge for political reasons”,¹⁰⁸ it is mainly about protecting the fundamental rights that citizens should enjoy through Chapter II, “Fundamental Rights and Obligations of Citizens”.

 

In contrast, since human rights refer to the rights enjoyed by everyone as a common international standard based on human dignity, from the perspective of human rights subject, it refers to everyone within the jurisdiction of a country, regardless of whether they are citizens, foreigners, or stateless persons. As the Human Rights Committee points out, “Those who should enjoy the rights stipulated in the Covenant are not limited to the citizens of the state party, but must include all individuals of any nationality or statelessness, such as asylum-seekers, refugees, migrant workers and others who happen to be in the territory of the state party or are under its jurisdiction.”¹⁰⁹ From the perspective of the relationship between human rights and fundamental rights, although some scholars believe that “human rights written into the Constitution” means that the subject of fundamental rights in the Constitution of China has expanded from “citizens” to “everyone” in the territory of China,¹¹⁰ “it is difficult to prove that the subject of “human rights” here has gone beyond the boundary of “citizens”, whether from the title of the chapter or the larger context of the Constitution”.¹¹¹

 

In terms of the content of rights, since “human rights” in the human rights clause of the Constitution refer to the rights established as common standards in international law, they not only refer to the rights stipulated in the Universal Declaration of Human Rights but also include the rights stipulated in a series of core human rights conventions. They not only refer to the rights stipulated in the core human rights conventions that have been ratified and entered into force in China but also include the fundamental rights stipulated in the core human rights conventions that have not been ratified and entered into force in China.¹¹² Although the international human rights conventions are still based on the consent of sovereign countries, the human rights clause in the Constitution indicates that, in a basic sense, the state still has the constitutional obligation to strive to guarantee the rights stipulated in the core human rights conventions that have not yet been ratified and entered into force.

 

In contrast, although the content of fundamental rights in China overlaps greatly with that of human rights, they are inevitably different from human rights because they are not the constitutional expression of human rights, but are derived from “the fruits of the struggle of all ethnic groups in China” and from the rights demands of the Chinese people in the process of social development. Specifically, China’s Constitution not only stipulates the citizen’s right to supervision that international human rights law does not have as an independent type of rights but also does not make clear provisions for all kinds of fundamental rights listed in the international human rights law, such as the right to life, the right to prohibit torture, the right to migration, the right to a fair trial, etc. Even if China’s Constitution stipulates the same fundamental rights as the international human rights law, there will be differences in the normative expression and adjustment of the content, such as the right to personal freedom and security, the right to freedom of expression, and the right to health.¹¹³

 

Second, there are differences in the protection mechanisms of human rights and fundamental rights. Generally speaking, there are two main ways to guarantee fundamental rights. One is the “protection by Constitution”, in which the constitutional review body created by the Constitution directly protects fundamental rights. The other is the “protection by law, which means that fundamental rights are guaranteed by legislation.¹¹⁴ By comparing these two ways, we can see that although legislation can make fundamental rights concrete for the real enjoyment and exercise of the people, it inevitably has the nature of restricting and even violating fundamental rights, so that the protection of fundamental rights ultimately depends on the effective operation of the constitutional review system. From a practical point of view, although China mainly protects fundamental rights through legislation, in recent years, it has improved the system and procedures related to constitutional review through a series of measures such as amending the Constitution and the Legislative Law, ¹¹⁵ which not only guarantees the unification of China’s legal system but also responds to the requirements to protect fundamental rights to a certain extent.¹¹⁶

 

In contrast, although human rights, as a common international standard, provide international norms and principles that can be invoked by the substantively vulnerable actors within the country, their implementation depends on the state. “The responsibility to protect individual rights and make violators accountable always depends on the state.” The state is the main bearer of human rights obligations.¹¹⁷ As for how a state should incorporate international human rights standards into its domestic law system and fulfill its obligations to protect human rights, it depends on the discretion of the state according to its system and practice. As the Committee on Economic, Social and Cultural Rights said, “In countries that have taken measures, existing laws are sometimes supplemented or amended to turn the Convention into domestic laws, but specific terms of the Convention are not quoted. But some countries adopt them or incorporate them into domestic laws, retain their terms as they are, and give formal recognition in the national legal order. In doing so, they often adopt constitutional provisions to make the provisions of international human rights conventions take precedence over any domestic laws that are inconsistent with them.”¹¹⁸ In China, following the principle of “the state respects and protects human rights” established in Paragraph 3, Article 33 of the Constitution, international human rights standards are mainly incorporated into China’s protection system based on fundamental rights through ordinary legislation to fulfill the national obligations of human rights protection.

 

Meanwhile, the international law attribute of human rights makes it a legal obligation for the state to guarantee the rights of all individuals within its jurisdiction and ultimately points to the international supervision and guarantee mechanisms that enable the state to perform these obligations. Specifically, they are reflected by the review and supervision of the human rights situation of countries including China by the UN Human Rights Council and the treaty bodies of the core human rights conventions. Of course, compared with domestic human rights protection mechanisms, international mechanisms are complementary. As pointed out by the Committee on Economic, Social and Cultural Rights in its general comment on international remedies for individual rights, “the rule requiring the exhaustion of domestic remedies emphasizes the primacy of domestic remedies in this regard. It is important to have and further develop international procedures for dealing with individual complaints, but these procedures can only supplement effective national procedures.”¹¹⁹ Nevertheless, the international human rights protection mechanisms undoubtedly mark a new stage in the development of the human social system.

 

Last, there are differences in the criteria for measuring whether human rights and fundamental rights are guaranteed. In a basic sense, since the human rights clause in the Constitution refers to the rights that the state respects and protects and that everyone should enjoy as a common international standard, these rights in turn constitute the standards to measure whether the state has fulfilled its human rights obligations. Because they take into account the reality of the cultural, institutional, and economic development of each country, these rights only reflect the general standards of the international community on the protection of human rights, so all countries can implement them.

 

As pointed out by the Committee on Economic, Social and Cultural Rights, “As far as the political and economic system is concerned, the Covenant is of a neutral nature. Its principles cannot be completely said to be based on the needs of the socialist or capitalist system, or the economic needs of a centrally planned economy or a free market economy, or both, nor can it be attributed to any other specific attributes. In this regard, the Committee reaffirms that the rights of the Covenant can be realized under various economic and political systems.”¹²⁰

 

In contrast, since fundamental rights are the constitutional expression of the rights that people of a country should enjoy based on specific historical and cultural traditions and practices, the national protection of fundamental rights is not necessarily consistent with international human rights standards. From the normative perspective, since international human rights standards are general standards, the level of national protection of fundamental rights may be higher or lower than these standards. For example, some scholars point out that the protection of fundamental rights in the German Basic Law has set higher standards and broader content than international human rights conventions.¹²¹ Compared with the International Covenant on Economic, Social and Cultural Rights, the provisions on citizens’ right to education in Articles 19 and 46 of the Constitution of China are more complete and detailed in some aspects.¹²² At the same time, the international human rights standards themselves are not always clear, which gives the states enough space for discretion. For example, Article 25 of the International Covenant on Civil and Political Rights stipulates civil and political rights. But in the contemporary era, because people have not reached a consensus on the essence of democracy, and for some decisive matters, there has not been a legally measurable measure. So, the state can only refer to its history and practice and rely on the provisions and understanding of its constitution.¹²³

 

From the perspective of the practice of human rights protection at the state level, since whether the state has fulfilled its human rights obligations ultimately depends on the authoritative understanding of the constitutional review body on fundamental rights, then the body will not necessarily meet international human rights standards. The reason is that no matter how independent the body is and how complete its implementation mechanism and procedures are, the fact that it is a national institution established by the Constitution cannot be changed. Therefore, it will inevitably be based on the history, culture, and practice of the community. On the one hand, it may have an understanding of fundamental rights that is contrary to international human rights standards. On the other hand, it may lead to insufficient protection of the rights of special groups in the community, such as women, the disabled, and gays.

 

Moreover, even if the national guarantee of fundamental rights meets international human rights standards, it is not necessarily necessary to fully protect the rights of non-citizens within the jurisdiction of the state. Although both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights allow sovereign states to discriminate between citizens and non-citizens in the enjoyment of certain rights based on reasonable and objective standards,¹²⁴ the ethical attribute of the constitution as a manifestation of the will of the people of a country determines that “even those countries that interpret fundamental rights as human rights may struggle when deciding whether to extend the subject of these rights to (legal or illegal) immigrants”.¹²⁵ Thus it is difficult to avoid making a distinction between citizens and non-citizens that violates international human rights standards.

 

 

When interpreting human rights in the Constitution from the perspective of international law, although there are differences from natural rights, both of them have made clear the basic value of human rights for the state to respect and protect human dignity in the functional sense, and made clear that human rights protection is the obligation of the state. Unlike the approach of natural rights, human rights as a concept of international law are not only internal affairs voluntarily undertaken by the state but also the normative requirements of the international community for the state. Although human rights, as an element of the order of international law, do not constitute the legitimate basis of state power, and human rights violations do not justify the overthrow of the government by revolution,¹²⁶ they are the basic standards that countries should abide by, and countries should be consistent with the recognized principles and rules of international human rights law and the international human rights treaties that are effective for them.¹²⁷

 

Nevertheless, as for the human rights clause of China’s Constitution, understanding human rights as common standards in international law will not make the national human rights protection system subject to the international supervision system or enable the international human rights supervision institutions to intervene in the internal affairs of China. The reason is that, first, in the international legal order with a sovereign state as the basic unit, although the international human rights system has already become a part of the context of the national constitutional system, how to incorporate human rights into the protection system of domestic Constitution, and how to interpret and implement human rights, always depend on the state. Second, compared with the protection of human rights within the country, the supervision of the international human rights institutions based on the Charter of the United Nations and the core human rights conventions is based on the consent of sovereign countries and is also subject to the clear provisions of the Charter, “the United Nations should not be considered authorized to intervene in matters that are essentially within the domestic jurisdiction of any state”.¹²⁸

 

However, different from understanding human rights as natural rights, interpreting human rights in the Constitution from the perspective of international common standards has the following functional significance.

 

First, it clarifies the connotation of the obligation of the state to respect and protect the enjoyment of all human rights by all persons within its jurisdiction. The constitutional clause “the state respects and protects human rights” means that the respect for and protection of human rights is not only the normative requirement of the people of the political community of the People’s Republic of China but also the constitutional obligation that the state must perform. Here, the “state” does not refer to the political community in the abstract sense, but refers to the general term of “all departments of politics (law enforcement, legislation, and justice) and public institutions or government agencies at the national, regional or local levels”.¹²⁹ Although the human rights clause in the Constitution indicates that the state, as an independent subject of international law, must promote the international protection of human rights by participating in the formulation, conclusion, and supervision of international human rights conventions, it mainly refers to the obligation in domestic law, which means that the state guarantees the human rights of all people within its jurisdiction through all public power institutions such as legislative, administrative and judicial organs established by the Constitution. The violation of human rights by these public authorities is regarded as a violation of national obligations. The state should take measures to protect the rights of the victims and assume and perform the responsibility for violating human rights obligations.

 

From the perspective of the subject of human rights respected and protected by the state, although the Constitution provides a basis for the state to fulfill its obligation to guarantee the rights of all people within its jurisdiction through the general provisions on the rights of foreigners in Article 32 of the General Principles and Chapter II “Fundamental Rights and Obligations of Citizens”, the “human rights” norms also contain the basic requirement for the state to respect and guarantee the rights of all people as international common standards in an equal and non-discriminatory manner. From the perspective of norms, as a concentrated expression of the will and interests of the people of a country, the Constitution has a natural structural bias and will inevitably be bound by the ethical demands of the community. As the antidote to the constitutional structural bias, the clause “the state respects and protects human rights” must require the state to, first, scientifically grasp and conscientiously implement the principle of “all citizens are legally equal” established in the Constitution, and ensure that all citizens enjoy the fundamental rights stipulated in the Constitution on an equal basis; and second, based on reasonable and objective standards, it is necessary to perform the obligation of equal protection for non-citizens to enjoy all basic human rights according to law.

 

Regarding the content of respect for and protection of human rights by the state, although China has guaranteed the vast majority of all kinds of fundamental rights through the Constitution and various laws, human rights as a common international standard mean that, at the minimum, the state should respect and protect all kinds of basic human rights established by the International Charter of Human Rights, whether civil rights, political rights or economic, social and cultural rights. For all these human rights, the constitutional obligation of the state to “respect and protect” them is mainly reflected in the following three aspects. First, the state has the obligation to respect them. No matter the legislative, administrative, judicial, or constitutional review activities, they should not be restricted by taking the initiative to directly violate the prohibitive provisions on human rights or go beyond the scope of restrictions on human rights.

 

Second, the state has the obligation to protect them. It should not only prevent and curb the violation of human rights by non-state actors, including individuals, through legislative, administrative, and judicial measures but also ensure that the individuals who have been violated receive appropriate relief and punish the perpetrators when the violation occurs. Third, the state has the obligation to realize the rights and create favorable conditions necessary for the full realization of human rights. This includes not only specific provisions on human rights through national legislation so that individuals can directly invoke and enjoy them, but also the establishment of necessary administrative and judicial institutions, and the establishment of necessary procedural systems, to enable individuals to assert and defend their rights in the event of infringement, and the adoption of economic, social, cultural and other institutional measures to create a better environment for the enjoyment and exercise of human rights.¹³⁰

 

Moreover, it sets the bottom line thinking that the state respects and protects the fundamental rights enjoyed by all people within its jurisdiction are not lower than the common international standards. Human rights are the rights that everyone living in this world should enjoy according to human dignity. They were established from the beginning as a common standard that all countries should abide by. As an international common standard, on the one hand, human rights “came into being after the establishment and spread of all kinds of socialism, and after almost universal belief in the welfare economy and welfare state”,¹³¹ which is an international consensus beyond multicultural disputes. On the other hand, human rights are also the basic requirements of global justice, “describing the conditions that all domestic societies should strive to meet, regardless of the more complete goals of the societies”.¹³² Therefore, the clause of “the state respects and safeguards human rights” in the Constitution of China also means that no matter how the state implements the protection of the fundamental rights of all people within its jurisdiction through the Constitution or laws, it should at the minimum comply with the common standards established by the International Charter of Human Rights.

 

With regard to the human rights stipulated in the International Covenant on Civil and Political Rights, the Human Rights Committee clearly states that “the human rights norms are the law on the fundamental rights that everyone should enjoy as a member of humanity.”¹³³ States parties not only may not violate the rights recognized by the Covenant, but “any of them may be restricted only in conformity with the relevant provisions of the Covenant”, and “under no circumstances may they be restricted in a manner likely to prejudice the essence of the rights under the Covenant”.¹³⁴ Although after China signed the Covenant, the Standing Committee of the National People’s Congress has not yet ratified it and it has not entered into force, China still “has some obligation to respect the Covenant and it has some legal binding force and guiding meaning for the public power organs of China. The public power organs of the country cannot maliciously violate its provisions”.¹³⁵ Moreover, this does not affect China’s initiative to apply the human rights standards established in the Covenant to the practice of the rule of law.

 

As for the International Covenant on Economic, Social and Cultural Rights, which has already entered into force in China, we must abide by “the principle contained in Article 27 of the Vienna Convention on the Law of Treaties”, namely, that states parties “shall not invoke the provisions of their domestic laws to justify non-performance of their treaty obligations”, “make necessary amendments to their domestic legal order” and “use all available means to implement the rights recognized in the Covenant”.¹³⁶ On the other hand, the human rights protection standards of the International Covenant on Economic, Social and Cultural Rights must be observed. Although Article 2 of the Covenant stipulates that states parties have the right to take measures commensurate with their national capabilities to gradually realize the fundamental rights stipulated, the Committee on Economic, Social and Cultural Rights states that “each state party has the responsibility to undertake the minimum core obligations and ensure that the realization of each right reaches at least a minimum level”. “If the Covenant is not regarded as defining such a minimum core obligation, it will be tantamount to losing the reason for its existence on the basis”. Even if the state party wants to attribute the non-performance of the minimum core obligations to the lack of resources, “it must also show that it has made every effort to use all available resources as a priority to fulfill the minimum obligations”.¹³⁷

 

Last, it shows the constitutional requirement to improve the institutional mechanism for all people to enjoy fundamental rights as a common standard within the country. Although China has the discretion to fulfill its constitutional obligation to respect and protect human rights, human rights inevitably require that the country should adopt appropriate ways to meet the basic requirements of international common standards. As the Committee on Economic, Social and Cultural Rights says, “Although the exact method of implementing the rights contained in the Covenant in domestic law is determined by each state party, the method used should be appropriate and the results must be consistent with the full implementation of the obligations of the state party.”¹³⁸

 

From the perspective of the basic institutional mechanism established by the Constitution of China, in the case that international human rights standards are not directly integrated into the domestic legal system, the human rights clause will inevitably require the state to transform the human rights obligations of the state into domestic laws by amending the Constitution or legislation in accordance with the provisions of international human rights conventions,¹³⁹ so as to provide a legal basis for individuals within the jurisdiction of the state to truly enjoy human rights. Meanwhile, the human rights clause of the Constitution also inevitably contains the constitutional obligation of the state to provide relief to the victims of human rights violations, enabling individuals to protect their rights through the judicial organs according to law. This is also the basic requirement of international human rights standards. Article 8 of the Universal Declaration of Human Rights stipulates that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Paragraph 3, Article 2 of the International Covenant on Civil and Political Rights requires states parties to ensure “the possibilities of judicial remedy” and “to ensure that the competent authorities shall enforce such remedies when granted”. From the perspective of the International Covenant on Economic, Social and Cultural Rights, although there are no provisions directly corresponding to it, the Committee on Economic, Social and Cultural Rights points out that it is very difficult to prove that one cannot take any domestic legal remedies to correct violations of economic, social and cultural rights.¹⁴⁰

 

From the perspective of the normative practice of human rights, even if the country converts international human rights standards into rights in domestic law through constitutional amendment or legislation, domestic law may not be able to fully protect everyone’s human rights. This is not only because the domestic human rights legislation will inevitably have imperfect provisions, but also because the protection of human rights is based on the legal logic of the national ethics community. Therefore, the human rights clause in the Constitution inevitably requires that in the judicial application of domestic law, to ensure that the conduct of the state conforms to international human rights standards, the court needs to consider the rights contained in the core human rights conventions that have been ratified. “The court’s neglect of this responsibility is inconsistent with the principle of the rule of law because the principle of the rule of law must include respect for international human rights obligations”.¹⁴¹ At the same time, when the state further improves the system and procedures of constitutional review, it needs to incorporate international human rights standards into the interpretation of constitutional provisions, so that the protection of constitutional rights is not lower than the general requirements of the international community.

 

Moreover, the human rights clause of the Constitution also inevitably requires that the state should perform its human rights obligations by participating in international human rights protection procedures and mechanisms. Although human rights mainly depend on the protection of the state, and the international protection procedures and mechanisms are at best supplementary, the international protection of human rights originates from the international law attribute of human rights and aims to ensure that the state fulfills its human rights obligations. Therefore, from the perspective of normative practice, if a state wants to fully fulfill its constitutional obligation to respect and protect human rights, it needs to uphold the basic concept of human rights as a common international standard, conscientiously fulfill the human rights obligations of states parties to international human rights conventions, enhance cooperation with the UN human rights bodies while accepting the oversight of the UN Human Rights Council and core human rights convention bodies, actively promote the improvement and development of the United Nations human rights protection mechanisms, and promote the human rights governance of a community with a shared future for mankind.¹⁴²

 

 

Human rights are traditionally understood from the perspective of natural rights, and human rights are the universal moral rights that human beings should enjoy as human beings. However, based on the international legal order established since the end of the World War II, we can see that human rights are not only in the sense of universal morality, but also in the sense of legal norms, and can be properly understood as the right that everyone should enjoy as a common international standard based on human dignity.

 

This is not only reflected in the fact that human rights have been stipulated in the Charter of the United Nations and a series of international human rights conventions formulated since then, and have become the basic constituent elements of the international legal order; it is also reflected in the fact that it has been recognized as legally binding by the vast majority of countries in the world through the Constitution or through the ratification of international treaties, and is considered to be a standard of fundamental importance that all countries should abide by.¹⁴³

 

From the perspective of international legal human rights, the reason why the “human rights being written into the Constitution of China” in 2004 was considered a milestone in the development of the contemporary Chinese Constitution is not only that it started the transformation of China’s constitutional model from system-centrism to rights-centrism, and promoted the development of the constitutional system with the protection of citizens’ fundamental rights as the core.¹⁴⁴ Moreover, it goes beyond the closeness of modern constitutionalism, which regards the Constitution as the embodiment of the will of the state since its birth, clarifies the international common standards that should be followed for the protection of human rights, opens up the institutional space for the protection of human rights, and provides the fundamental basis for today’s China to promote the building of a community of shared future for mankind and improve global governance based on human rights.

 

Based on the basic context of the international legal order, it can be seen that if we want to give full play to the milestone function of the human rights clause in the Constitution, we need to seriously treat the relationship between international human rights standards and domestic law, and fully recognize that the continuous conflict between the rights practice of China based on the requirements of community ethics and the universal human rights norms is the basic pattern of the development of human rights in the process of globalization, which can be called the “disharmonious equality paradigm” of human rights protection.¹⁴⁵

 

On this basis, the state should maximize its constitutional obligation to respect and protect human rights. It needs to actively carry out human rights education including international human rights standards in the whole society, “promote the broadest knowledge and understanding of all norms, concepts, and values set forth in international human rights instruments”,¹⁴⁶ and forge a pluralistic and inclusive human rights culture with human dignity as the core. At the same time, for organs of state public power, legislative, judicial, or constitutional review bodies all need to actively perform the obligations established by the international human rights conventions that have been ratified and entered into force, and strive to explore the integration of international human rights standards into their respective responsibilities, and improve the institutional protection of human rights. For example, from the perspective of judicial practice, even if international human rights law cannot be directly applied in China’s courts, the “interpretative application” method undoubtedly provides an alternative to applying international human rights standards.¹⁴⁷

 

(Translated by CHEN Feng)

 

* YAN Hailiang ( 严海良 ), Professor of the School of Law, Nanjing Normal University, and Research Fellow of the Institute for Chinese Legal Modernization Studies, Nanjing Normal University. This paper is supported by the project “Research on Contemporary Western Political Human Rights Theory” (Project No. CSHRS2020-03ZD) of the China Society for Human Rights Studies (CSHRS) and the project “Research on Contemporary China’s Human Rights Judicial Interpretation” (Project No. 16BFX023) of the National Social Science Fund of China.

 

1. Guo Chunzhen, “The Image of Human Beings in Law and the Function of Human Rights Clauses”, Academic Monthly 3 (2010): 21-27.

 

2. Zhang Weiwei, “Human Rights Clause: A Place for Unenumerated Rights in the Constitution,” Law Review 1 (2011): 10-17.

 

3. Han Dayuan, “A Normative Analysis of the Human Rights Clause in Constitutional Texts,” The Jurist 4 (2004): 10-11.

 

4. Lin Laifan and Ji Yanmin, “Protection of Human Rights: The Significance as a Principle”, Studies in Law and Business 4 (2005): 64-69.

 

5. Xu Xianming, “The Centennial History of Human Rights in China”, Tribune of Social Sciences 3 (2005): 31.

 

6. Xu Shuang, “How to Understand the Human Rights Clause in Chinese Constitution”, Global Law Review 6 (2012): 56.

 

7. Guan Hua, “From Rights to Human Rights — or Expectable Language Exchange — Reflections on the Basic Categories of China’s Constitutional Jurisprudence”, Law Review 2 (2015): 43.

 

8. Han Dayuan, “A Normative Analysis of the Human Rights Clause in Constitutional Texts,” 9.

 

9. Jiao Hongchang, “Constitutional Analysis of ‘The State Respects and Protects Human Rights’”, China Legal Science 3 (2004): 42.

 

10. Zhang Weiwei, “Human Rights Clause: A Place for Unenumerated Rights in the Constitution,” 13.

 

11. This view is also consistent with theorists of contemporary Western natural rights. See James Griffin, On Human Rights, translated by Xu Xiangdong and Liu Ming (Nanjing: Yilin Press, 2015), 2. In addition, according to contemporary Chinese scholars’ understanding of the socialist concept of human rights, it is not inappropriate to understand human rights as natural rights. Because according to the socialist concept of human rights, human rights are the rights that people should enjoy as human beings based on their social and natural attributes. From the perspective of the relationship between the two major attributes of human beings, social attributes are only the external conditions for the generation of human rights and are the external causes, while the natural attributes are the internal causes and basis for the generation and progress of human rights. Based on this, human rights are essentially the rights that people should have according to their nature. See Human Rights Theory Research Group of Guangzhou University, “Outline of the Socialist Human Rights Theoretical System with Chinese Characteristics”, Chinese Journal of Law 2 (2015): 60-61.

 

12. Xia Yong, Origin of the Concept of Human Rights: The Historical Philosophy of Rights (Beijing: China Social Sciences Press, 2007), Introduction to the original edition, 4.

 

13. Liu Fengjing. “The Semantics and Implications of National ‘Respect’ for Human Rights,” Academic Exchange 3 (2019): 65-66.

 

14. Qin Qiang, “The Logical Interpretation of the Clause that ‘The State Respects and Protects Human Rights’,”Journal of Guangzhou University 11 (2011): 23-24.

 

15. In this paper, if not specially limited, “basic rights” refer to the basic rights of citizens stipulated in the Constitution of China.

 

16. Franz Steiner Verlag, “From Human Rights to Fundamental Rights: Consequences of a conceptual distinction”, Archives for Philosophy of Law and Social Philosophy 3 (2007): 398 and 409.

 

17. Jiao Hongchang, “Constitutional Analysis of ‘The State Respects and Protects Human Rights’”, 44.

 

18. Zhang Yan, “On the Relationship between Human Rights and Fundamental Rights: In the Context of German Law and General Legal Theory”, The Jurist 6 (2010): 22.

 

19. Dong Yunhu, “‘Human Rights’ into the Constitution: An Important Milestone in the Development of Human Rights in China,” Human Rights 2 (2004): 34.

 

20. Han Dayuan, “Origin and Evolution of the Concept of Fundamental Rights in China”, China Legal Science 6 (2009): 25.

 

21. Qin Qiang, “On Human Rights Norms”, Academics 2 (2011): 44.

 

22. Li Zhongxia, “The Constitutional Interpretation of the ‘Human Rights Clause’: From the Perspective of Methodology and Systemic Interpretation”, in Chinese Journal of Human Rights, vol. 12, Xu Xianming eds. (Jinan: Shandong People’s Publishing House, 2013), 23-24.

 

23. Xin Chunying, “The State Respects and Protects Human Rights: Historical Significance of Human Rights Written into the Constitution”, Qiushi 9 (2004): 38.

 

24. Han Dayuan, “A Normative Analysis of the Human Rights Clause in Constitutional Texts,” 12.

 

25. Lin Laifan and Ji Yanmin, “Protection of Human Rights: The Significance as a Principle”, Studies in Law and Business 4 (2005): 68.

 

26. Han Dayuan, “Origin and Evolution of the Concept of Fundamental Rights in China”, 23.

 

27. Lu Pinghui, “The Essence Theory, Value Theory and Practice Theory of Constitutional Rights”, Modern Law Science 1 (2004): 14.

 

28. Xia Zhenglin, “On the Generality and Particularity of Fundamental Rights”, Law Review 5 (2012): 6.

 

29. Louis Henkin, “The Constitutional Rights and Human Rights of Americans”, translated by Li Zerui, Case Journal of Foreign Law 6 (1981): 2.

 

30. Jack Donnelly, “The Relative Universality of Human Rights”, in Chinese Journal of Human Rights, no. 9, edited by Xu Xianming, translated by Xu Shuang (Jinan: Shandong People’s Publishing House, 2010), 313.

 

31. According to Louis Henkin’s understanding, in international discourse, in addition to rights in international law, human rights are mainly regarded as the following types: a ‘goods’ or ‘desiderata’, which are not rights in themselves, but may be converted into legal rights and interests in domestic or international laws; b. The moral rights in a certain accepted moral order (or under a certain natural law), which individuals' requirements for freedom and basic needs may be regarded as requirements for moral order, the universe or God; c. The moral (or natural law) requirements made by each person to his society; or, d. A person’s legal requirements for the society under the Constitutional and legal system. See Louis Henkin, “International Human Rights as ‘Rights’”, Cardozo Law Review 1 (1979): 435-436.

 

32. Based on this, some scholars have divided human rights into two categories: human rights in narrow and broad senses. “Human rights in a broad sense are equal to fundamental rights, which includes two meanings. First, everyone enjoys human rights in a narrow sense (rights as a human), or, rights that everyone should enjoy as a person. Second, the civil rights that some people enjoy. In other words, the rights that everyone should enjoy based on their status as a social member of a particular country”. Once recognized by the Constitution, it is also expressed as the fundamental rights of human beings. See Lin Laifan, Lectures on Constitutional Law (Beijing: Law Press · China, 2015), 280.

 

33. Regina Kreide, “Between Morality and Law: In Defense of a Political Conception of Human Rights”, Journal of International Political Theory 1 (2016): 12.

 

34. In the academic circle of China, Professor Han Dayuan clearly pointed out, along the route of natural rights, that “human rights themselves are uncertain concepts, which are often reflected in the form of comprehensive value in the Constitutional text”. See Han Dayuan, “A Normative Analysis of the Human Rights Clause in Constitutional Texts,” 11.

 

35. Wang Jinwen, “Interpretation and Application of the Rights Protection Function of the Restriction of Fundamental Rights Clause of the Constitution: Analysis on the Recognition and Protection of Emerging Fundamental Rights”, Journal of East China University of Political Science and Law 5 (2018): 89.

 

36. For the understanding of representative contemporary human rights theories, please refer to “The Basic Pedigree of Contemporary Human Rights Theories”, in Yan Hailiang, Human Rights in a Globalized World: From the Perspective of Raz (Beijing: Law Press · China, 2015), 1-30. For the systematic criticism of natural rights theory in contemporary Western academia, see Yan Hailiang, “Toward a Functional Human Rights Theory Based on Human Dignity: Evolution and Analysis of Contemporary Human Rights Concepts”, Global Law Review 4 (2015): 88-92.

 

37. Wang Jianxue, “The Concept and Reference of Fundamental Rights in French Constitution”, Northern Legal Science 5 (2010): 42.

 

38. For a systematic exposition of international legal human rights, see Allen Buchanan, The Heart of Human Rights (Oxford: Oxford University Press, 2013)

 

39. Charles R. Beitz, “From Practice to Theory”, 20 Constellations 1 (2013): 29.

 

40. Zhang Yonghe, “A Comprehensive and Correct Understanding of the Concept of Human Rights, Human Rights Discourse and Discourse System”, Hongqi Wengao 14 (2017): 7.

 

41. Regina Kreide, “Between Morality and Law: In Defense of a Political Conception of Human Rights”, 12.

 

42. Charles R. Beitz, “What Human Rights Mean”, 132 Daedalus 1 (2003): 41.

 

43. Emmanuel-Joseph Sieyès, “On Human Rights and Civil Rights”, in Constitutionalism and Administrative Rule of Law Review, vol. 7, edited by Zhang Xiang, translated by Wang Jianxue (Beijing: China Renmin University Press, 2014), 147.

 

44. Wang Jianxue, “The Ideological Origin and Normative Evolution of the Dichotomy of Human Rights and Civil Rights”, Global Law Review 5 (2019): 120.

 

45. Samuel Moyn, The Last Utopia: Human Rights in History, translated by Wang Shaoqing and Tao Lixing (Beijing: The Commercial Press, 2016), 25.

 

46. Ibid., 21 and 22.

 

47. Allen Buchanan, “Why International Legal Human Rights?”, in Philosophical Foundations of Human Rights, Rowan Cruft, S. Matthew Liao, and Massimo Renzo ed. (Oxford: Oxford University Press, 2015), 245.

 

48. Leif Wenar, “The Nature of Human Rights”, in Real World Justice: Grounds, Principles, Human Rights and Social Institutions, Andreas Follesdal, Thomas Pogge ed. (Berlin: Springer, 2005), 286. 

 

49. Allen Buchanan, “Why International Legal Human Rights?”, 248.

 

50. Charles R. Beitz, “From Practice to Theory”, 20 Constellations 1 (2013): 27-28.

 

51. Allen Buchanan, “Why International Legal Human Rights?”, 244.

 

52. Samuel Moyn, The Last Utopia: Human Rights in History, 13.

 

53. Andrea Sangiovanni, “Justice and the Priority of Politics to Morality”, 16 The Journal of Political Philosophy 1 (2010): 153. 

 

54. Louis Henkin, The Age of Rights, translated by Xin Chunying et al. (Beijing: Knowledge Publishing House, 1997), 1.

 

55. Allen Buchanan, The Heart of Human Rights, 1.

 

56. Charles R. Beitz, “What Human Rights Mean”, 44.

 

57. Xu Xianming, “The Centennial History of Human Rights in China”, 26-32; Dai Ruijun, “On the Motivations of International Human Rights Law in the Institutional Changes of Fundamental Rights”, Social Sciences in Guangdong 3 (2015): 213-223; Liu Zhigang, “The Constitutional Analysis of the Legislative Protection of Human Rights”, Human Rights 3 (2015): 57-67; See Guan Hua, “From Rights to Human Rights — or Expectable Language Exchange — Reflections on the Basic Categories of China’s Constitutional Jurisprudence”, Law Review 2 (2015): 34-45.

 

58. Wang Zhaoguo, “Note on the Draft Amendment to the Constitution of the People’s Republic of China”, delivered at the Second Session of the Tenth National People's Congress on March 8, 2004.

 

59. Paragraph. 3, Article 1, Article 55 and Article 56 of the Charter of the United Nations.

 

60. Gong Renren, “The Emergence and Significance of the Human Rights Provisions of the Charter of the United Nations”, Chinese Journal of Human Rights 1 (2020): 57.

 

61. Bai Guimei ed., Human Rights Law (Beijing: Peking University Press, 2015), 75.

 

62. Hua Guoyu, “The Universal Declaration of Human Rights and China”, Human Rights 1 (2015): 137.

 

63. So far, China has not only participated in 26 international human rights conventions and related protocols, but also submitted performance reports to international treaty bodies, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, 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, and has accepted the review of relevant treaty bodies.China also successfully passed the three universal periodic reviews of the human rights situation in China conducted by the United Nations Human Rights Council. See: A/HRC/WG. 6/31/CHN/1, China’s report to the UN Human Rights Commission in 2018.

 

64. Zhang Wanhong, “On Mainstreaming Human Rights”, Law Review 6 (2016): 43.

 

65. A/HRC/RES/5/1., United Nations Human Rights Council: Institution-building Programme.

 

66. Liu Songshan, “Human Rights Written into the Constitution: Background, Scheme and Interpretation”, Journal of Huadong University of Political Science and Law 5 (2014): 63.

 

67. Dong Yunhu, “'Human Rights' into the Constitution: An Important Milestone in the Development of Human Rights in China,” Human Rights 2 (2004): 31.

 

68. Dong Yunhu, “An Important Milestone in the Development of Human Rights in China: Review at the 10th Anniversary of the Publication of the White Paper on Human Rights in China”, Human Rights 1 (2002): 27.

 

69. Gerald L. Neuman, “Human Rights and Constitutional Rights: Harmony and Dissonance”, Stanford Law Review 55 (2013): 1879-1880.

 

70. Xi Jinping, “Work Together for a Better World”, People’s Daily, December 2, 2017.

 

71. Zhang Weihua, “Dimensions of Human Rights in Building a Community with a Shared Future for Mankind”, Human Rights 5 (2017): 13.

 

72. Some scholars clearly point out that “in the global governance system, the concept of human rights shall be defined by the international community, not by a certain country. The international definition of human rights in the Universal Declaration of Human Rights and a series of universal human rights conventions has been widely accepted and recognized.” Zhang Wenxian, “Human Rights Jurisprudence in the New Era”, Human Rights 3 (2019): 24.

 

73. John Rawls, The Law of Peoples: With the “Idea of Public Reason Revisited”, translated by Li Guowei et al. (Taipei: Linking Publishing Co., Ltd., 2005), 96.

 

74. This definition is drawn from the Preamble to the Universal Declaration of Human Rights, “as a common standard to be achieved by all peoples and all nations”, and the provisions of Article 1 on human dignity, which itself is recognized as the authoritative interpretation of the human rights provisions of the Charter of the United Nations. The 1993 Vienna Declaration and Programme of Action also clearly states that “the Universal Declaration of Human Rights, which constitutes a common standard of achievement for all peoples and all nations, is the source of inspiration and has been the basis for the United Nations in making advances in standard setting as contained in the existing international human rights instruments, in particular the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.”

 

75. For the paradigm debate of human rights theory, see Allen Buchana, The Heart of Human Rights; Adam Etinson, Human Rights: Moral or Political? (Oxford: Oxford University Press, 2018); Yan Hailiang, Human Rights in a Globalized World: From the Perspective of Raz, 83-108.

 

76. John Rawls, The Law of Peoples: With the “Idea of Public Reason Revisited”, translated by Li Guowei et al., (Taipei: Linking Publishing Co., Ltd., 2005), 95-96. From the perspective of contemporary human rights theory, natural rights theory is only one of them. For details, please see “The Basic Genealogy of Contemporary Human Rights Theories”, in Yan Hailiang, Human Rights in a Globalized World: From the Perspective of Raz, 1-30. To be specific, for example, different from the Western natural rights theory, which understands human dignity from the perspective of human nature and then provides a subjective demonstration for human rights, some Chinese scholars learn from Jürgen Habermas’ negotiation human rights theory, build on the Confucian culture's “relational self”, understand human dignity from a relational perspective, and then provide a relational demonstration for human rights. See Yan Hailiang, Paradigm Change of Human Rights Argumentation: From Subjective to Relational (Beijing: Social Sciences Academic Press, 2008), 329-340.

 

77. Jochen Abr. Frowein, “Human Dignity in International Law”, in The Concept of Human Dignity in Human Rights Discourse, David Kretzmer and Eckart Klein eds., (The Hague: Kluwer Law International, 2002), 122-123.

 

78. For a systematic analysis of “dignity” as “human status”, see Jeremy Waldron, Is Dignity the Foundation of Human Rights? translated by Zhang Zhuoming, Law and Modernization 2 (2019): 164-180.

 

79. Klaus Dicke, “The Founding Function of Human Dignity in the Universal Declaration of Human Rights “, in The Concept of Human Dignity in Human Rights Discourse, David Kretzmer and Eckart Klein eds., (The Hague: Kluwer Law International, 2002), 112.

 

80. Zhang Pengchun points out that human dignity comes from human reason and conscience, and conscience is the moral principle of Confucianism. Sun Pinghua, Zhang Pengchun: An Important Designer of the World Human Rights System (Beijing: Social Sciences Academic Press, 2017), 373.

 

81. Cited in Joshua Cohen, “Minimalism about human rights: the most we can hope for?” 12 Journal of Political Philosophy 3 (2004): 193-194.

 

82. For representative argumentation in this respect, see Joseph Raz, “Human Rights Without Foundation”, in The Philosophy of International Law, Samantha Besson and John Tasioulas ed. (Oxford: Oxford University Press, 2010), 321-337; Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), 109-117.

 

83. Samantha Besson, “Human Rights and Constitutional Law: Patterns of Mutual Validation and Legitimation”, in Philosophical Foundations of Human Rights, Rowan Cruft, S. Matthew Liao, and Massimo Renzo ed. (Oxford: Oxford University Press, 2015), 282. This argument approach is the application of Raz’s general analysis of rights. See Yan Hailiang, “The Rights-Standard View Based on Interests: An Analysis of Raz’s Concept of Rights”, Law and Social Development 5 (2010): 137-148.

 

84. Joseph Raz, “Human Rights in the Emerging World Order”, Transnational Legal Theory 1 (2010): 39; See Samantha Besson, “Human Rights and Constitutional Law: Patterns of Mutual Validation and Legitimation”, 285.

 

85. Joseph Raz, Ibid., 41.

 

86. Allen Buchanan, The Heart of Human Rights, 7.

 

87. Marisa Iglesias Vila, “Subsidiarity, Margin of Appreciation and International Adjudication Within a Cooperative Conception of Human Rights”, 15 I * CON 2 (2017): 400.

 

88. John Tasioulas, “On the Nature of Human Rights”, in The Philosophy of Human Rights Contemporary Controversies, Gerhard Ernst and Jan-Christoph Heilinger eds. (Berlin: Walter de Gruyter GmbH & Co. KG, 2012), 28.

 

89. Samantha Besson, Philosophical Foundations of Human Rights, Rowan Cruft, S. Matthew Liao, and Massimo Renzo ed. (Oxford: Oxford University Press, 2015), 284.

 

90. Georg Lohmann, On Human Rights, translated by Li Hongyun and Zhou Aimin (Shanghai: Shanghai People’s Publishing House, 2018), 13.

 

91. Regina Kreide, “Between Morality and Law: In Defense of a Political Conception of Human Rights”, 13.

 

92. Charles Beitz, The Idea of Human Rights, 107 and 128.

 

93. Joseph Raz, “On Waldron’s Critique of Raz on Human Rights”, in Human Rights: Moral or Political? Adam Etinson ed. (Oxford: Oxford University Press, 2018), 143.

 

94. Louis Henkin, “International Human Rights as ‘Rights’,” Cardozo Law Review 1 (1979): 428.

 

95. Allen Buchanan, “Why International Legal Human Rights?”, 256 and 258.

 

96. Leif Wenar, “The Nature of Human Rights”, in Real World Justice’ Grounds, Principles, Human Rights and Social Institutions, Andreas Follesdal, Thomas Pogge ed. (Berlin: Springer, 2005), 286.

 

97. Eyal Benvenisti and Alon Harel, “Embracing the Tension Between National and International Human Rights Law: The Case for Discordant Parity”, 15 I · CON 1 (2017): 42.

 

98. Regina Kreide, “Between Morality and Law: In Defense of a Political Conception of Human Rights”, 12.

 

99. Allen Buchanan, The Heart of Human Rights, 27.

 

100. Zhu Xiaoqing, “On the Common Standard of Human Rights: Discussing with Wan Exiang”, China Legal Science 6 (1994): 29-30.

 

101. As of September 29, 2020, the nine core international human rights conventions and the number of their states parties are: 171 state parties for International Covenant on Economic, Social and Cultural Rights, 173 for International Covenant on Civil and Political Rights, 182 for Convention on the Elimination of All Forms of Racial Discrimination; 189 for Convention on the Elimination of All Forms of Discrimination against Women; 171 for Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; 196 for Convention on the Rights of the Child; 55 for Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; 182 for Convention on the Rights of Persons with Disabilities; and 63 for Convention for the Protection of All Persons from Enforced Disappearance.

 

102. Sun Shiyan, “International Human Rights Standards: Western or Global”, Chinese Journal of Human Rights 1 (2020): 67.

 

103. Zhu Xiaoqing, “On the Common Standard of Human Rights: Discussing with Wan Exiang”, 35.

 

104. Allen Buchanan, “Why International Legal Human Rights?”, 247.

 

105. Allen Buchanan, “Why International Legal Human Rights?”, 248.

 

106. Jeremy Waldron, “Human Rights: A Critique of the Raz/Rawls Approach”, in Human Rights: Moral or Political? Adam Etinson ed. (Oxford: Oxford University Press, 2018), 131.

 

107. Gerald L. Neuman, “Human Rights and Constitutional Rights: Harmony and Dissonance”, 1876.

 

108. According to Article 89 of the Law of the People's Republic of China on the Control of the Exit and Entry of Citizens, “foreigner” refers to “a person who does not have Chinese nationality”, regardless of whether he has a single nationality of a foreign country, multiple nationality or statelessness.

 

109. CCPR/C/21/Rev.1/ADD. 13. The Human Rights Committee's General Comment No. 31: The nature of the general legal obligations of States parties to the Covenant.

 

110. Han Dayuan, “Origin and Evolution of the Concept of Fundamental Rights in China”, 25.

 

111. Dai Ruijun, “The Legal Protection of Foreigners' Rights: From International Law to Chinese Law”, Human Rights 5 (2014): 38.

 

112. Regarding the nine core international human rights conventions, all have entered into force in China except the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and the International Convention for the Protection of All Persons from Enforced Disappearance, which have yet to be signed, and the International Covenant on Civil and Political Rights, which has been signed but has yet to be ratified.

 

113. Liu Maolin, et al., Improvement of China’s Constitutional Rights System: Reference to International Human Rights Conventions (Beijing: Peking University Press, 2013), 153-215.

 

114. Xu Chongde and Hu Jinguang eds., Constitution (Beijing: China Renmin University Press, 2018), 146.

 

115. When China revised the Constitution in 2018, the Law Committee, a specialized body of the National People’s Congress, was changed to the Constitution and Law Committee. In the same year, the Standing Committee of the National People’s Congress adopted the Decision on the Responsibilities of the Constitution and Law Committee of the National People’s Congress, which empowered the Committee to “increase its responsibilities in promoting the implementation of the Constitution, carrying out interpretation of the Constitution, promoting Constitutionality review, strengthening supervision of the Constitution, and coordinating publicity of the Constitution, while continuing to undertake unified deliberation of draft laws”. In 2019, the Standing Committee of the National People’s Congress adopted the Working Measures for the Review of the Filing of Regulations and Judicial Interpretations, further improving the system and procedures for constitutionality review.

 

116. For details, please refer to: Selected Cases of Regulatory Document Filing and Review, compiled by the Law Filing and Review Office of the Legislative Affairs Committee of the Standing Committee of the National People’s Congress, China Democracy and Legal System Publishing House, 2020.

 

117. Johan Karlsson Schaffer, “The Point of the Practice of Human Rights: International Concern or Domestic Empowerment?” in Moral and Political Conceptions Human Rights: Implications for Theory and Practice, Reidar Maliks, Johan Karlsson Schaffer eds. (Cambridge: Cambridge University Press, 2017), 52.

 

118. E/C. 12/1998/24, General Comment No. 9 of the Committee on Economic, Social and Cultural Rights on the domestic application of the Covenant.

 

119. Ibid.

 

120. E/1991/23, General Comment No. 3 of the Committee on Economic, Social and Cultural Rights on the nature of states parties’ obligations.

 

121. Bai Guimei ed., Human Rights Law, 269.

 

122. Liu Maolin, et al., Improvement of China’s Constitutional Rights System: Reference to International Human Rights Conventions, 208.

 

123. Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, translated by Sun Shiyan and Bi Xiaoqing (Beijing: Sanlian Bookstore, 2008), 614.

 

124. These differences are mainly reflected in the restrictions on the freedom of movement of foreigners to enter sovereign countries in Paragraph 3, Article 12, and the provisions on civil and political rights in Article 25 of the International Covenant on Civil and Political Rights, and the restrictions on the economic rights of foreigners in developing countries in Paragraph 3, Article 2, of the International Covenant on Economic, Social and Cultural Rights. Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 644.

 

125. Stephen Gardbaum, “Human Rights as International Constitutional Rights”, in Chinese Journal of Human Rights, vol. 17, edited by Qi Yanping, translated by Hu Chao (Jinan: Shandong People’s Publishing House, 2016), 384.

 

126. Louis Henkin, “The Constitutional Rights and Human Rights of Americans”, 3.

 

127. Zhao Jianwen, “On the Effectiveness Relationship between International Law and Constitution: From the Perspective of International Covenant on Civil and Political Rights”, Presentday Law Science 6 (2004): 10.

 

128. Paragraph 7, Article 2, of the Charter of the United Nations.

 

129. CCPR/C/21/Rev.1/ADD. 13. The Human Rights Committee’s General Comment No. 31: The nature of the general legal obligations of States parties to the Covenant. For the understanding of “state”, see Han Dayuan, “National Human Rights Protection Obligations and Functions of National Human Rights Institutions”, Legal Forum 6 (2005): 5.

 

130. For a systematic analysis of the theory of state human rights obligations, see Liu Huawen, On the Asymmetry of State Obligations under the International Covenant on Economic, Social and Cultural Rights (Beijing: Peking University Press, 2005), 16-19; Sun Shiyan, Obligations of States Parties to the International Covenant on Civil and Political Rights (Beijing: Social Sciences Academic Press, 2012), 104-165.

 

131. Louis Henkin, “The Constitutional Rights and Human Rights of Americans”, 3.

 

132. Charles R. Beitz, “What Human Rights Mean”, 44.

 

133. CCPR/C/21/Rev.1/ADD.6, General Comment No. 24 of the Human Rights Committee: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant (Article 41)

 

134. CCPR/C/21/Rev.1/ADD. 13. The Human Rights Committee’s General Comment No. 31: The nature of the general legal obligations of States parties to the Covenant. General Comment No. 31 of the Human Rights Committee: The nature of the general legal obligation imposed on States Parties to the Covenant.

 

135. Qin Qiang, “Research on the Human Rights Legislation Obligation of the Legislature: Taking the Human Rights Clause in the Constitution as the Background”, Northern Legal Science 5 (2012): 56.

 

136. E/C. 12/1998/24, General Comment No. 9 of the Committee on Economic, Social and Cultural Rights on the domestic application of the Covenant.

 

137. E/1991/23, General Comment No. 3 of the Committee on Economic, Social and Cultural Rights on the nature of states parties’ obligations.

 

138. E/C. 12/1998/24, General Comment No. 9 of the Committee on Economic, Social and Cultural Rights on the domestic application of the Covenant.

 

139. Liu Zhigang, “The Constitutional Analysis of the Legislative Protection of Human Rights”, 62.

 

140. E/C. 12/1998/24, General Comment No. 9 of the Committee on Economic, Social and Cultural Rights on the domestic application of the Covenant.

 

141. Ibid.

 

142. See the research group of the China University of Political Science and Law, “United Nations Human Rights Mechanisms and China’s Constructive Participation”, Human Rights 6 (2020): 55-77.

 

143. Manfred Nowak, Introduction to the International Human Rights, translated by Liu Huawen (Beijing: Peking University Press, 2010), 3.

 

144. Wu Xinping, “Respect for and Protection of Human Rights and the Development of China’s Constitution”, The Jurists 4 (2004): 14.

 

145. Eyal Benvenisti and Alon Harel, “Embracing the Tension Between National and International Human Rights Law: The Case for Discordant Parity”, 57.

 

146. Plan of Action for the United Nations Decade for Human Rights Education, 1995-2004, A/51/506/Add. December 1 & 12, 1996. Besides, in the National Human Rights Action Plan of China (2009-2010), it has been clear that human rights education should include “education of international human rights knowledge”.

 

147. The “interpretative application” refers to the indirect application of international human rights law in China by invoking international human rights law to interpret domestic law based on domestic law. In China, there have been a number of judicial cases to safeguard human rights through the interpretative application of international human rights conventions. In recent years, although the Supreme People's Court of China has not explicitly referred to “international treaties”, it has provided an indirect basis for the judicial subject to invoke international human rights conventions in reasoning, whether it is The Provisions on Referencing Laws, Regulations and Other Normative Legal Documents in Judgment Documents (Fa Shi [2009] No. 14) or The Guiding Opinions on Strengthening and Standardizing the Interpretation and Reasoning of Judicial Documents (Fa Fa [2018] No. 10). See Zhang Xuelian, “Interpretive Application: New Trends in the Application of International Human Rights Law in Domestic Courts”, Oriental Law 5 (2016): 73-80; Dai Ruijun, “Studies on China’s Judicial Application of International Human Rights Treaties”, Human Rights 1 (2020): 135-154.