International Law and China’s Domestic Reform – A Good Mix or Self-Defeating?

by Julian Ku

Some leading Chinese scholars and prominent Chinese activists have been circulating a letter on Chinese social media calling for the National People’s Congress (China’s legislature) to ratify the International Covenant on Civil and Political Rights (ICCPR).   Here is an excerpt from the letter, which is carefully worded not to challenge the authority or the accomplishments of the current government.

2. Immediate ratification of the International Covenant on Civil and Political Rights will honor the solemn pledge of the Chinese government, satisfy the fondest hopes of the Chinese people, and demonstrate China’s commitment to be a responsible world power.

When the United Nations passed the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1966, it called on all nations to see both treaties as part of a whole, signing and ratifying both together. As of November 1, 2010, 167 of the 193 United Nations member countries had formally joined the International Covenant on Civil and Political Rights. In 2001, China ratified the International Covenant on Economic, Social and Cultural Rights, which has been referred to as the “second generation of human rights.” But today, 15 years after our country signed the International Covenant on Civil and Political Rights in 1998, it has still not ratified this treaty, which is regarded as the “first generation of human rights.” China’s government has placed its emphasis on the gradual improvement of China’s existing legal system in advance of ratification, so that it can accommodate the demands and various responsibilities of the treaty. However, the gap between the signing of human rights treaties and their ratification must still be kept within the realm of reason, in order to promote further progress on civil rights and political rights, and in order to avoid unnecessary conjecture from the international community.

As a Permanent Member of the United Nations Security Council, China has always been an active initiator and participant in the International Bill of Human Rights. China’s government played an important role in the formulation of the Universal Declaration of Human Rights (UDHR). International human rights standards are therefore not imported products but in fact include the achievements of Chinese culture and the Chinese people. The signing of the International Covenant on Civil and Political Rights 15 years ago demonstrated even more our country’s serious commitment to the protection of basic human rights as a responsible world power. Afterwards, both President Hu Jintao and Premier Wen Jiabao said openly on numerous occasions both at home and overseas that China would immediately take the legal steps to ratify the treaty once the conditions were right. In the beginning of 2008, more than 10,000 Chinese citizens signed a call for the ratification of the International Covenant on Civil and Political Rights. And so there is no longer any need to vacillate. In order to adapt to trends in human rights development, live up to our government’s pledges and answer the demands of the people, in order to behave in a manner consistent with a major power, we must join the treaty without hesitation, with a positive and decisive attitude.

As stirring as this letter is, I am doubtful that China’s adherence, or non-adherence to the ICCPR would make a big difference in advancing reform within China.  China is already a party to key human rights treaties, such as the Convention Against Torture and the Convention Against Genocide, but it is hard to tell whether being party to those treaties has made a big policy difference within China.  Moreover, the Chinese Constitution already guarantees many of the key rights in the ICCPR, but those rights are still rarely protected in China, and not all protected under Chinese law.

The larger question for international lawyers is whether human rights covenants like the ICCPR can or should be a vehicle for advancing a domestic political reform agenda.  I haven’t thought about this question enough, but I am skeptical that such treaties can play a big role and I’ve seen no empirical data that suggests it does make a difference one way or the other. (If I’m missing something, please feel free to post below). Indeed, such treaties can often be counterproductive to domestic reformers who lose some credibility by being too closely associated with foreign and international powers.

Don’t get me wrong. I’m all for advancing human rights and political reform within China. I just have doubts as to whether international human rights law is a useful vehicle for advancing this agenda.

http://opiniojuris.org/2013/02/26/international-law-and-chinas-domestic-reform-a-good-mix-or-self-defeating/

5 Responses

  1. “Indeed, such treaties can often be counterproductive to domestic reformers who lose some credibility by being too closely associated with foreign and international powers” – true for most Muslim majority countries too.
    I wonder if others here are aware of empirical research, whether based on case studies or otherwise, demonstrating this point?

  2. The treaties are no longer ”too closely associated with foreign and international powers” if the country in question, in this case China, ratify them. Compare, for example, the use by Charter 77 of the Helsinki Accords as part of the Velvet Revolution. We discussed this following a series of wonderful posts by Mark Edwards at Concurring Opinions last year, one of which I quote from:

    A small group of dissidents in the Soviet Union started the first Helsinki monitor organization, claiming the privilege of monitoring whether the Soviet Union was meeting its Helsinki obligations domestically. In Czechoslovakia, concurrently, Vaclav Havel was organizing a group of dissidents who had decided to risk all by advocating for basic human rights. Three members of that group in particular — Zdenek Mlynar, Jiri Hajek, and Ladislav Hedjanek — seem to have developed the strategy of tying their advocacy directly to the Czechoslovak regime’s adoption of the Helsinki Accords into domestic law. The group called itself Charter 77, and its declaration expressly invoked both the human rights obligations the regime had agreed to as an afterthought, and the right of citizens themselves to monitor compliance with those obligations and report their findings to the world at large.

    Framing Charter 77 as a supportive response to Czechoslovakia’s adoption of the Helsinki Accords was both tactical and substantive. Tactically, it was a masterstroke. The regime found itself practically check-mated before the game had begun, because it had already agreed to everything Charter 77 demanded. Western European governments, and human rights advocates, could and did insist that Eastern European governments meet their obligations under the Accords – or, if they were forswearing the Accords, the West could do the same and cut off trade and border recognition. And, since groups like Charter 77 were only helping to fulfill those obligations, and were very much in the Western eye, they could not be easily destroyed.

    The Charter’s model of dissidence – using international human rights law as a lever against domestic repression – quickly spread across Eastern Europe and the world. In addition, the Charter’s insistence on a role for private citizens in monitoring respect for human rights – what Havel called civil society – helped create a model so ubiquitous today that it is hard to believe it was once an innovation: today we call such organizations NGOs. In direct response to Charter 77 and other similar groups in the East, civil initiatives such as Helsinki Watch – later Human Rights Watch – developed in the West. And as we’ll see, those initiatives eventually played an important role in bringing down the regimes of Eastern Europe. Indeed, it was the work of such initiatives, that simply took cynical governments at their word and insisted on respect for human rights, that created the practice of transnational human rights law and advocacy. That legacy obviously continues to reverberate in the world today.

    A long, dark road lay ahead for the declaration’s signatories. All were arrested and repeatedly interrogated; many were imprisoned, beaten, harassed and placed under constant surveillance. Vaclav Havel spent almost five of the next seven years in prison. One of the three intial spokespeople for the group — philosopher Jan Patocka — would be dead at the hands of the secret police within a few weeks.

    Despite the immediate dire consequences for some of the prominent signatories, the long-term effects were of a different order and suggest the value of this strategy as possibly generalizable to other cases, whatever its geopolitical and historical particularities.

  3. If readers would like to look up Mark’s seven posts on this topic (to several of which I offered extended comments), enter “Vaclav Havel” in Concurring Opinions’ search engine and they should all show up.

  4. There definitely is an issue with human rights norms being liable to dismissal as foreign imposed concepts. However, this is a risk with any advocacy for domestic reform that relies on any kind of outside support. Just look at the example of Russia and the latest repressive legislation labelling NGOs that receive foreign funding as foreign agents. Should one advise advocates of reform to entirely stop referring to international norms or practice as a result? To put the question differently, has any successful democratization or domestic reform process ever truly occurred in a vacuum, without any inspiration or support from the outside world?

    The point with human rights conventions is that they actually make national debates about cultural relativism a lot more concrete, for better or for worse (but probably mostly for better). Ratifying the ICCPR means that you take on responsibility for reporting on (and therefore engaging with) your compliance with each obligation included in each of its articles. In doing so, you also open yourself to critiques of your performance in this specific areas that will be informed by the Human Rights Committee’s prior findings, including its General Comments. There may well be elements of the ICCPR that the Chinese public (and not just its leadership) may have difficulties adjusting to, but we won’t know that for sure until they ratify.

    The Covenants also take on disproportionate significance in Asia, where there is no regional convention to act as a more locally responsive statement of binding norms, and little in the way of regional processes such as the Helsinki Process cited in the comments above for legitimately inserting human rights into regional political processes (although ASEAN is slowly but surely moving in this direction).

  5. “The larger question for international lawyers is whether human rights covenants like the ICCPR can or should be a vehicle for advancing a domestic political reform agenda.”
    I don’t think that this is just a question for international lawyers. Domestic lawyers and academics have been using international human rights treaties for many years to promote domestic reform in China, even treaties to which China is not yet a party such as the ICCPR. Criminal lawyers have been using the provisions of the Convention against Torture and related UN instruments to push for reform in China’s criminal procedure law. Although these attempts are not always successful (but also not always unssuccesful) since there are also forces in China that push back against such attempts, it is clear that there is a considerable domestic constituency which supports China’s adherence to international human rights, and this letter reflects that.
    It should also be noted that except for the ICCPR, China is a party to many other main UN human rights treaties (the ICESCR, CEDAW, CRC, CERD, CPD) and is taking its reporting obligations under those treaties seriously (there are several academic publications about this, including by me). Bearing in mind the inherent limitations to this specific form of monitoring, it certainly won’t be unhelpful for advancing domestic reform.
    To add to Patrick O’Donnell’s earlier post: the effects of engagement with international human rights in the former Eastern Bloc has also been documented by Daniel C. Thomas in The Helsinki Effect (Princeton University Press, 2001)
    All in all Professor Ku doesn’t need to doubt whether international human rights is a useful vehicle for advancing domestic reform in China. It already is, and has been for more than a decade.

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