HUMAN RIGHTS IN CHINA:
TRADITION, POLITICS AND CHANGEi
(this article has been
published in
Studia Diplomatica,
Vol. LVI: 2003, nr. 6 (published December 2004), pp. 53 – 108)
“There can
be few countries in the world that have faced more external criticism of their
human rights record than the People’s Republic of China.”[1]
The 1989
infamous military crackdown in Tiananmen Square; the repressed freedom of
religion and freedom of expression in Tibet; the arrest and imprisonment of
political activists, human rights defenders and internet-users who voice
dissent against Chinese politics[2];
the arbitrary detainment, imprisonment and execution of those caught under the
“strike hard” campaign against crime – a campaign which extends to
vaguely-defined “ethnic separatists, terrorists and religious extremists” in
the Xinjiang Uighur Autonomous Region and Falun Gong spiritual movement[3];
…
One can
hardly say that there is no reason for the criticism on the human rights
situation in China. All of the
forenamed human rights infractions do deserve our attention, and the incessant
reporting by media and human rights organisations from all over the world can
only be applauded.
No surprise
that, especially since 1989, international politics regarding China have been
intricately connected to the problem of China’s human rights record. Especially the US as well as European
countries have taken the lead in exerting political pressure on China to
improve its human rights situation.
Being the
country that has probably faced the most criticism on its human rights record
over the last few decades, China became more active and agile in responding to
these human rights critiques. More
particularly, China found a sensitive point in the foreign critiques that
became its most important weapon in the international human rights forum. The sensitive spot proved to be the
basis on which all criticisms were formulated: the universality of human
rights.
“A
country’s human rights situation cannot be judged in total disregard of its
historical and national conditions, nor can it be evaluated according to the
preconceived model or standard of another country or region.”[4]
This
relativity claim, with inherent critique on the predomination of Western values
in the international human rights regime, became the turning key enabling a
change of attitude in the international human rights forum. From passive resistance, China turned
to active engagement.
The weight
of the argument in the international human rights forum waxed steadily together
with China’s economic growth. When
China engaged its relativity-argument in the international human rights debate,
it appeared that a number of other countries were standing on the same
line. The Bangkok Declaration,
drawn up in conclusion of a regional preparation session for the 1993 United
Nations Conference on Human Rights in Vienna, clearly reflected criticism on
the universality of human rights.[5] It showed that China was not the only
East-Asian country wanting more attention for country- and culture specific
differences when discussing human rights.
The ensuing Conference in Vienna was totally overshadowed by the
universality-relativity debate on human rights.[6]
Whereas the
universality of human rights had always been seen as fairly straightforward
since the making of the Universal Declaration of Human Rights in 1948, it
became a prominent issue in the international human rights forum in the years
after 1993. A whole barrage of
scholarly and other writings appeared on the issue, exploring the precise
nature of human rights and the importance that should be paid to cultural
matters when judging the human rights record of a country.[7]
Although
the debate has not come to an end yet, and might even never give way to a
conclusive solution in favour of universality or relativity, one might
tentatively say that it succeeded to create a greater awareness of cultural
differences when discussing (the creation and) the implementation of
international human rights.[8] The claim for relativity ushered at the
conference in 1993 served as a reminder that the concept of human rights did
emerge from the West, and has been impregnated by predominantly Western values,
which aren’t necessarily found as such in non-Western cultures.
China might
arguably go a bit far in its claims for relativity, and in its efforts to
develop a concept of ‘human rights with Chinese characteristics’. But its argument for a closer
inspection of historical and national conditions when judging a country’s human
rights record can hardly be ignored in the present international human rights
forum.
In this
article, I will therefore concentrate on China’s cultural, historical and
national conditions when telling the Chinese human rights tale. I will trace the life of human rights
throughout China’s history and tradition, and throughout more recently
developed views of the government, academia and the civil society.
I take the
history of human rights in China as a starting point. I will talk on the absence of the concept of human rights
during imperial times, the emergence and the development of the concept at the
end of the 19th – beginning of the 20th century, and the
total eradication of the human rights concept with the arrival of the
communists.
I will then
proceed to a more detailed discussion of human rights in modern-day Chinese
society. From 1978 onwards,
communist China embarked on a whole new course. A period of rapid modernization was set in, which had huge
repercussions for China’s legal system, and its human rights provisions. I will go deeper into human rights
visions of the Chinese government, the flourishing of legal doctrine
surrounding human rights, and views expressed inside China’s growing civil
society. An overview of China’s
position inside the international human rights forum is given as well, and
specific attention is paid to China’s interactions with the European Union.
A.
Imperial Times: Absence of Human Rights?
To present
an extensive overview of the life of human rights during the immense period of
time China was reigned by an emperor (221 B.C. – 1911 A.D.), would be outside
of the scope of this article. I
will therefore limit myself to a brief introduction into the basic aspects of
traditional Chinese legal culture, and will discuss the concept of human rights
against the background of these considerations. I treat the traditional Chinese legal culture in a very
broad sense. Legal thought is seen
as a component of social-philosophical
thought, the reflection of how a society should be organized, the reflection on
the relationship between ruler and ruled, the reflection on the position of the
individual and the position of groups of people in society.
I will take
as my point of departure the definition of human rights as articulated in the
1948 Universal Declaration of Human Rights (hereinafter, the Declaration), and
the two subsequent covenants of 1966 deriving from the Declaration, namely the
Covenant on Civil and Political Rights and the Covenant on Economic, Social and
Cultural Rights.[9]
These human
rights are fundamentally premised on the statement that: “All human beings are
born free and equal in dignity and rights”[10]
and therefore, have individual “moral and legal claims (which they) can
legitimately assert…against specified others…who have correlative duties to
satisfy their claims.”[11] However, it is worth mentioning that I
do not represent my chosen model of human rights as the final statement on the
subject, but rather as the going one, which, despite having Western liberal
roots[12],
embodies “a consensus statement ratified by an international body, and…widely
available (to the public).”[13]
a.
Emergence of Schools of Thought.
To discuss
the basis of legal thought in China, we have to go back to a period situated
before imperial times. The main themes of this thought were
constructed in China during the period of about 500 years between 700 and 200
before Christ.
The period
before 700 B.C. (the period of the Xia, Shang and Western Zhou dynasties) is a
period about which relatively little is known. It is referred to as the period of the “Archaïc Monarchy”.[14] The king, head of the noble class, is the head of the army and the head
priest. All activities depend on
the royal palace, that takes up functions that could be determined as functions
of political, religious, military and economic nature. The society is built up in a very
feudal way.[15]
During the period of
the Eastern Zhou dynasty (770 – 221 B.C.)[16]
the old system of the “Archaic Monarchy” falls apart. A system of
aristocratically built up cities replaces the old monarchy, but this system
fails as well. In its stead, big
kingdoms (states) start to come up.
These kingdoms were in a permanent state of war with one another. A period of total chaos ensues.
At this point in time,
different schools of thought rise up to the surface. They all had their own idea of how a leader of a state could
most efficiently lead his people.
The leaders of the states themselves needed these schools, as well as
the schools’ thinkers. They could tell them how to obtain more
victories over other states. They
could also tell them how one could end the state of complete chaos that reigned
during this period.[17]
b. Confucianism and
Legalism.
Two schools of thought
originated during the period of the Eastern Zhou, that would show to have a
major influence on the legal and social thought in China. I will discuss the most important
characteristics of these schools in what follows.[18]
The two schools
differed essentially in their basic positions.
One school,
Confucianism, thought that traditional, handed over, old social norms were the
best to organize society. The
other school, legalism, emphasized the role of newly created rules and laws to
bring some order into society.
This is the core of the differing positions of
the Confucians and of the Legalists: the Confucians saw the source of social
order in old social and ethic norms (li), whereas the Legalists saw the source of social
order in laws and rules (fa).
Li and fa are the
central concepts in the old Chinese legal culture. These concepts are at the basis of the whole legal life in
China, even up till today. I will
discuss these two concepts more profoundly before I discuss the different
schools of Confucianism and Legalism.
It’s hard to give a precise description of the
concept of Li. We could translate the term Li with a
lot of different words, and still none of them would really capture the exact
meaning of li. Li is rite, the sum
of all sacral rules, ethics, the sum of all norms you have to obey in the
social life, the relational rules determined by tradition, norms to bring order
into the social life. In classical
texts, Li is mentioned together with ‘Music’ (Yue). Music brings order into the feelings of people, it brings
order into the internal workings of people. Li rule the outside of the people, the extern relationships
of people. Both lead to Harmony,
Solidarity, and Respect.[19]
Fa is Law, order that is being issued by the ruler. In very ancient times (beginning of the
first era before Christ), this Chinese character of fa consisted not only of
the elements water and going (shui – qu), but there was also a diagram to point
to a ‘fairy tale creature with a single corn (chi)’. The three elements of the character of fa were explained in
the following way: the fa is as smooth as the water (therefore the element of
water); the chi, an imaginary creature that looks like a unicorn, could dismiss
the untrue with its horn, and could make it go away (therefore the element of
the chi, and the element of going). [20]
As we mentioned
before, Li and Fa became opposites.
The Confucians saw the source of social order in the Li, whereas the
Legalists saw the source of social order in the Fa.
For Confucians, the
primary norms of order are the LI.
No rules issued by the state, but norms of moral and habit. Ideally, the society isn’t ruled by
laws, but the society is ruled through the moral example of the elite (junzi),
the society is ruled through the moral example of the emperor and his
officials.[21] To reign means to reign by persons,
persons that have to rule while using morals, and not laws. Only a government that is based on
virtue (de),
can conquer the heart of the people.
The ruler has to take benevolence (ren), and rightness (yi) as the basis of his government.[22]
The ‘li’ are rules of
custom. They vary for each
different person in society, according to their social status. The Confucians were very strict in the
application of these social roles.
They wanted to create clarity, they wanted to make sure that it was
absolutely clear to everybody which role he had in society. The Confucians therefore propagated a
theory of ‘rectification of names’ (zhengming): each group of things should be
given a correct name, and a correct place in society, to make sure that the
society runs in an orderly way.[23] Essentially, they saw five basic
relationships in society[24]:
ruler – minister; father – son; husband – wife; elder brother – younger
brother; friend – friend.
The ultimate goal of
government was to ensure a correct operation of these relationships. Inequality was a big consequence
however. Relations are built up in
a very hierarchical way. Especially
in the three first relationships (the three fundamental relationships or san
gang:
ruler/minister, father/son, husband/wife), this hierarchy is very clear: in
each of these three relationships, one person has to obey the other person
completely. The minister, the son,
and the wife are less than the ruler, the father and the husband, and have to
obey these persons completely.[25]
As such, the Confucian
Ethics could be described as the whole of social roles and social rules that
had to be obeyed by everyone, according to his personal position in society,
and according to the circumstances.[26] A clear inequality between people was
seen as a ‘natural’ condition for society.
The laws or Fa are
only an instrument of help for the Li.
The law could be described as the punishment that one gets if one
doesn’t obey the social roles or the social rules that are formulated by the
Li. When the Li had to rely
heavily on these instruments , this meant there was a rejection of the primary
norms in society, which, in its turn,
pointed to bad government.
An increased presence of Fa pointed to a period of regress. As such, the Confucians weren’t totally
against law itself; what they opposed, however, was the fact that Law (understood as punishment) would
replace moral education. In their
opinion, Fa only had a short term effect.
Li had a long term effect.[27]
Together with the founders of Confucianism,
came the Legalists. In the midst
of the violence reigning during the Eastern Zhou period, the conviction rose
that strict rules and an iron ruler were necessary to restore peace.[28]
They were mostly very
practical rulers. The legalists
are no lawyers however. The
complete work of the legalists is an explanation of how a ruler can make his
subjects trust him, how one can attain security, well-being, and power in a
state, and how one needs laws if one wants to govern a state. There are no explanations concerning
juridical questions. The legalists
could be designated more as politicians and political scientists. They are state philosophers, and they
know the technique of legislation, as well as juridical concepts and
terminology, but they are no legal scholars.[29] Their theories surrounding legislation,
and their theories surrounding the function of the law, are not very different
from the ideas of the Confucians.
But their theories concerning legislation are much more elaborate and
concrete. They don’t want to rule
the state with moral principles
and with rules of custom only.
They want to rule the state with laws as well, laws that are freely made
by the ruler.
The kegalists’ view on mankind differs from the one held by the
Confucians. In the theory of the
Confucians, man is essentially good, or man can be educated. In the theory of the legalists, man is
bad and he cannot be educated. For
the legalists, the law is there to avoid the bad things, not to encourage the
good things in people. A preferred
way to avoid bad things was to threaten people with severe punishments.[30]
A fundamental difference with Confucianism lies in the fact that
legalists propagate equality for the law.
It’s too early to speak of absolute equality (the ruler creates the law,
the ministers obey the law, the subjects are punished by the law), but it is
quite different from the view held by the Confucians.[31]
c. From the Qin dynasty (221-206 B.C.) to the Qing dynasty (1644 – 1911).
In one of the many
states that competed for power during the period of the “Eastern Zhou”, the
Qin, the legalists attained a lot of influence.[32] This particular state managed in the
end to unify the Chinese lands by force of arms, and it founded the first
empire in China’s history. The
reign of the Qin was characterized by a continuous search for uniformity[33],
and laws that were extremely strict and severe.[34]
Under the reign of the
following dynasty, the Han (206 B.C. – 220 A.D.), Confucianism becomes the
state orthodoxy.[35] There was a ‘Confucianization of Law’[36]:
morals were imported into the law codes, and the accent was put on
differentiation instead of equality before the law. Generally speaking, Li became the main tool for the ruler,
law moved to the position of a secondary tool.
Under all dynasties
that followed the Han dynasty, this ‘Confucianized law’ model remained the
standard. Li were the ultimate
means to rule the country, whereas law only had to come in when the precepts of
the Li were being transgressed. As
such, traditional Chinese culture has been characterized as Li culture, emphasizing
duty, regulation and discipline.
Legislation is fundamentally a state affair, and whereas criminal law
and administrative law got quite some importance, private law remained
underdeveloped.[37]
As such, although
philosophies like Buddhism and Daoism have put an important mark on the history
of Chinese social-philosophical thought (and legal thought), and Legalism has
played an important role in the tradition as well, we can agree with the
statement that during Imperial Times, “Confucianism permeated almost every aspect of moral, social and legal
life in China.”[38] [39]
d. The concept of
Human Rights in the Chinese legal tradition.
Topic rarely discussed
before 1993, discussions on the compatibility of Chinese tradition and Human
Rights came to the forefront of international scholarly attention after the
1993 UN Vienna World Conference, in a debate centering on ‘Asian Values and
Human Rights’.[40]
In most of the
writings, attention was primarily focused on Confucianism as the major cultural
influence on Chinese Society under the Empire and afterwards.[41] Without intending to be extensive on
the topic, I’ll quickly mention some of the directions the debate took after
1993.
The brief description
of Chinese legal tradition cited above, should suffice to illustrate how alien
a concept like Human Rights[42]
was to traditional Chinese society.
Confucianism prescribed a hierarchically ordered society, where the role
of every person was described in a very strict way according to the LI and
inequality was a natural given.
The emphasis was on the fulfilling of duties, and not on the claiming of
rights. Law was a secondary,
inherently defective instrument to rule inside society. It could be useful, at best, for
administrative purposes. Private
use of the law and the assertion of personal claims before the court was looked
upon with despise.[43]
Some authors focused
on this apparent incompatibility of Chinese Tradition and Human Rights, often
to go into a pungent critique on too individualistic rights models espoused in
the West.[44] Other authors searched out options to
directly reconcile confucianist tradition with the concept of human rights
adopted at an international level.[45]
What proved to be most
fruitful, in my opinion, was the effort to move away from conclusive answers to
questions on the compatibility of human rights and the Chinese tradition. As De Bary asserts at the start of his
book on Confucianism and human rights, “(the) aim has not been to find
twentieth-century human rights in Confucianism, but to recognize therein
certain central human values”[46].
Confucianism
undeniably contains numerous elements comparable to core concepts underlying
human rights as developed on an international level.[47] Most important then is to adopt a
framework in which intercultural human rights dialogue can effectively flourish
and Confucian values can be constructively adopted to supplement different
(Western) conceptions of human rights[48]. This brings us to the political
dimension of the debate surrounding Chinese tradition and human rights, which I
will discuss further on in the article.
B. End of the 19th Century: Emergence of Human Rights in the Chinese Legal Culture.
It is impossible to say who first discussed the idea of
human rights in China, but it is probably safe to conclude that it was not
until after 1898 that human rights explicitly started to be mentioned, and not
until after 1900 that more theoretical and deeper articles on the subject
appeared and the idea began to have any real influence.[49] The first rendering of “human rights”
into an Asian language happened in 1864.[50] Renquan is the term now widely used for
“human rights”.
The attention for
human rights came during a period of huge changes, both inside and outside
China. The end of the 19th
century was marked by a whole lot of challenges for traditional Chinese
society. Traditional values and
systems were under a lot of pressure.[51]
Inside China, the old
economic system started to crack.
A commodity economy started to develop. As a result of this development, widespread social unrests
broke out.[52] The corruption amongst the imperial
officials also started to grow to an unprecedented extent.
On top of this, China
had suffered major defeats in wars against the Western powers, and against
Japan.[53] China had come in contact
with the economic, cultural, and political ideas of the West, and it was
defeated by the Western superpowers bringing these new ideas. This raised some questions about the
efficiency and the quality of the traditional system in China.
As a result, change of
the traditional ways imposed itself more and more vehemently on China. The central government of the
Qing-dynasty (1644 – 1911) was very weakened by all the pressures. After initial suppression of the voices
crying for change[54],
it decided to adopt clear paths of reform. In a last effort to regain some of the trust they had lost
throughout the 19th century, the rulers of the Qing-dynasty decided
to fully reform the legal system, basing themselves on foreign legal models.[55] This attention for foreign legal
systems continued after the fall of the Qing-dynasty (1911), and all through
the ensuing Nationalist GuoMinDang period (1927 – 1949).
The attention for
human rights must be placed against this background of greater attention for
Western ideas and constructs.
Chinese scholars were looking more and more to the West for answers to
China’s current crises. They were beginning to question the traditional
thinking in China. They thought
that the traditional Chinese thinking, in which everybody had to obey his role
in society, and had to fulfill his duties, might have been a reason why China
suffered such great defeats and setbacks.
They went to search for means to save China, to restore China’s powerful
position in the world. Foreign
legal models were among the means used for this purpose. In this context, western concepts such
as ‘rights’ and ‘freedoms’ were thoroughly explored. Rights and freedoms were seen as something the nation in its
whole could benefit from. They
would emancipate the individual, set free individual energy that could be used
more actively in building up the nation.
Up until then, in Confucianism, people had always been tied to their
specific duties. By using a concept
such as ‘rights’, individuals would be more free, and have more energy to
dedicate themselves fully to the building up of the nation.[56]
This thought of
emancipation of the individual, that was associated with ‘rights’, and the
thought that human rights would contribute to social progress in China and to
the modernization of China, continued during the first part of the 20th
century.[57]
We see that during
this period, human rights rhetoric was often used as well to denounce
oppressive rulers. It was used to
denounce the imperial rulers in China, who were still in power up until 1911,
when China became a republic.
Later on, human rights rhetoric was also used in the fights that
occurred between the Communists and the Nationalists (Guomindang) in China, and
also against Japanese aggressors invading China.[58]
It might be important
to mention here that China was active in the setting up of the United
Nations. It sent a big delegation
to the United States to ratify the Charter of the United Nations. A representative of the guomindang, or
the Nationalists who were in power at that time in China also helped to draft
the Universal Declaration of Human Rights, and this declaration was accepted by
China in 1948.[59]
In 1949, the People’s
Republic of China was established.
China disappeared from the international stage. Taiwan, where the remainders of the
Guomindang (or nationalists) took their refuge, took the place of China in the
United Nations.
In China, human rights
discussions disappeared almost completely. The communist party emphasized that with the establishment
of the People’s Republic of China, the human rights of the Chinese citizens
were finally fully protected. By
definition, the protection of human rights was realized. The Communist Party therefore didn’t
allow new claims for human rights.
In general, human
rights were seen as a “bourgeois slogan”, that had no relevance whatsoever for
a socialist society. There was no
need to talk about them anymore.
During this period,
law was, on the overall, also seen as something ‘bad’, and unnecessary in
Chinese society. There was hardly
any effort put into the building up of a legal system. Law schools closed down, and legal
scholars were mostly seen as useless, and in need of re-education. Law was seen as ‘rightist’, and
‘bourgeois’.
3. RECENT HUMAN RIGHTS HISTORY: HUMAN RIGHTS IN CHINA FROM 1971 TO 2004.
The
importance of the (legal) tradition for Chinese legal life today is hard to
underestimate. Confucianism
especially still remains one of the main influences on life in Chinese society.
An
understanding of traditional Chinese concepts is quintessential in order to
obtain a correct view on the development of the legal system in the China of
today.
One is hard
put to find a concept in this legal tradition that is equivalent to what we in
the West came to understand as ‘(human) rights’ – a concept that undeniably
formed a starting point for the international regime of human rights as we know
it today. It was only in 1864 that
the term ‘human rights’ found a translation into the Chinese language, and it
was not until the end of the 19th century that the concept was
extensively discussed among Chinese scholars.[60]
The concept
enjoyed a relatively fruitful existence among the Chinese literati during the
first part of the 20th century. A period that radically ended with the founding of the
People’s Republic of China in 1949.
The Cultural Revolution, lasting from 1966 to 1976, proved to be the
final epitome of a period where human rights – and law in general – were seen
as a bourgeois concept unneeded inside the Chinese society striving towards
communism.
In 1971,
the People’s Republic of China replaced Taiwan as representative of China in
the United Nations. This was a
first step towards stepping out of the position of global isolation the PRC had
imposed upon itself since 1949. It
would however still take a few years before some more radical changes
catapulted China into a new period of opening up towards the outside world,
which would be accompanied by a new found appreciation for the law.
In what
follows, I will give an overview of China’s attitude towards human rights
during this recent period of time.
In the overview I will mostly concentrate on political aspects, drawing
out characteristics of China’s internal and foreign politics surrounding human
rights questions. I will briefly
discuss recent Human Rights politics of the US concerning China, and deal
somewhat more extensively with the most recent EU measures surrounding Human
Rights in China;
Thereafter,
I will take a closer look at human rights conceptions reigning on different
levels of Chinese society. After
discussing some striking elements of human rights conceptions held by the
Chinese Government, I will briefly discuss the role of Chinese legal scholars
in the furthering of human rights theories, and I will conclude with a more
elaborate image of the role of the steadily growing ‘civil society’ on the
Chinese mainland.
A. Human
Rights in China’s Internal and Foreign Politics.
a. 1971 – 1989: Entering the International Human Rights Regime – Realizing the Implications.
Theoretically China
became a part of the international human rights regime in 1971 when it joined
the United Nations. But from 1971 to 1979, China did not become party of any of
the conventions relating to human rights, and as such China was not subject to
the monitoring of those bodies.[61] China, still fully engaged in the cultural revolution at
that moment, avoided to take part in international human rights activities.[62] The international community wasn’t looking to force China to hold its
human rights obligations either.
First, the international community wanted to concentrate on ‘bringing
China in’. Human rights issues
were postponed to a later stage.[63]
In the late 70s, a lot
of things changed in China. After
the death of Mao in 1976, and the end of the cultural revolution, China was
ready to reform.[64] The cultural revolution had caused huge
devastations, and measures had to be taken to remedy the losses and to avoid
similar chaos in the future.
A process of
modernization was started at the end of 1978, under the leadership of Deng Xiao
Ping. At the 3rd Plenary Session of the 11th
Central Committee of the Communist Party of China (CPC), measures were
announced that would lead China into a whole new direction. Emphasis was on the ‘four modernizations’,
and on the opening up towards the West.[65] Development of the economy and
development of the law were seen as key factors in China’s new march towards
modernization.[66] A certain degree of democracy was seen
as essential as well.[67]
The Chinese Government
started to pay more attention towards human rights in this period. Human rights began to be talked about
on an official level, which was a huge change from the situation under Mao,
during which human rights problems were hardly ever worthy of discussion.[68]
The Constitution of
1982 can serve as an illustration for this new-found attention. It provided an extensive list of basic
rights in its second chapter (articles 33 – 50), which were worded very
similarly to rights found in western constitutions.[69] Even though the constitution was far
from effectively providing a protection of human rights[70],
the difference with the previous PRC constitutions was striking.
On an international
level, China became more actively engaged in the topic of human rights as
well. In 1982 China became a
member of the UN Commission of human rights. From 1980 till 1989 China signed and/or ratified also 7
human rights treaties, amongst which 3 basic treaties.[71]
This active attitude
in the international forum put China in a more vulnerable position; China put
itself under the scrutiny of the control mechanisms attached to the 3 basic
treaties it adopted, and it was in general more susceptible to critical voices
and investigations into its own human rights situation. Moreover, the economic reforms led
China to an opening up to the outside world, which included an engagement into
the system of global communication.
Human rights violations inside China became steadily more known to other
countries.[72]
China was increasingly
criticized for its human rights situation by other states, especially by the
US. But these critical voices
remained very moderate at first.[73] They would haunt China in full force
after the events of 1989 however.
b. 1989 – 1993:
From Passive Resistance to Active Engagement.
1989 is the year that
is associated with the Tiananmen massacre. What started originally as a protest of a few students
against corruption in the state system, became a mass rally for democracy. Students, but also laborers and other people
who were not satisfied with their situation and who wanted a better protection
of their rights, occupied the Tiananmen square with claims for more
participation in politics, more rights and more democracy. In an action that shocked the whole
world, the Chinese government suppressed this movement in a bloody way on the 4th
of June 1989.[74]
The suppression of the
democracy movement had huge consequences for China’s relations with the
international community, and with the international human rights regime.
China was put under a
lot of pressure.[75] The European Union reacted with a
series of sanctions, including postponement of new cooperation projects,
suspension of high level ministerial contacts, and interruption of military
cooperation.[76] The US reacted with similar measures,
and started to link China’s ‘most-favoured-nation’ status to the respect of
human rights and democracy.[77]
There was a sharp
reaction of the United Nations as well.
The clearest expression of this was a resolution by the sub-commission
for human rights in August 1989, in which it condemned the action of the
Chinese government.
This resolution and
the reactions of foreign countries were a serious blow to China and to the
Chinese government. It was the
first time that the international human rights regime exerted pressure on China
in such an active way.
China’s immediate
reaction to this international critique was an attitude of rejection, and an
attitude of withdrawal. Chinese
authorities denounced the whole international human rights critique, and
denounced the right of the international community to interfere in China’s
internal affairs.[78] It was a very insecure moment for
China. China had to deal with the
international critique on Tiananmen, but also with the huge power changes in
the international system. 1989 was
also the year in which communist systems in European states collapsed, and this
changed the global political scene.
In the years directly
following the Tiananmen-incident, the international community kept up the pressure. Both European countries and the US
supported China-critical resolutions in the UN Human Rights Commission, and
mostly concentrated on economic measures to improve the human rights situation
in China.[79] The UN Sub-commission for human rights
adopted a second anti-China resolution in 1991, this time criticizing the human
rights situation in Tibet.
After the initial
period of insecurity and withdrawal in 1989, China decided to organize itself,
and to take up the debate with the states criticizing China’s human rights
situation. In September 1990 this
sudden interest of the Chinese state started, and the result was a huge ‘human
rights fever’ during the next two years.
China took a more prominent place on the international human rights
forum, the Chinese government adopted more legislation directly concerning
human rights, and Chinese legal scholars were encouraged in their academic
research surrounding human rights.[80]
The Chinese government
started itself with official publications on human rights in China. These official publications were called
‘white papers’. In October 1991,
the first white paper on human rights in China was published.[81] This white paper contained the official
view by the Chinese government on the human rights situation in China. The government published this white
paper to defend and promote China’s human rights regime towards the
international community, and towards its own population. In this paper the Chinese government
also wanted to state a new set of priorities for the human rights cause in
China. It gave a signal towards
the academic community in China on which issues to concentrate.
China’s first white
paper on human rights, was as such also a foundation on which it could build
its human rights diplomacy.
As discussed before[82],
this white paper had a serious relativistic overtone, demanding attention for
historical and national conditions when judging human rights, and assessing
that the human rights situation cannot be evaluated according to the preconceived model or standard of
another country or region. It
seemed that China had found the way out of an ‘identity crisis’, that had
caught China between conforming to international standards and maintaining its
own national identity.[83]
China had developed
‘its own view’ on human rights[84],
and China subsequently put its theory to the test in international
politics. Both at the Bangkok
Preparatory Conference, and at the 1993 Vienna UN World Conference on Human
Rights, China found ample support.
Fueled by its growing economy, China set on a course of active
engagement in the international human rights regime.
c. 1994 – 2004: A
Growing Power.
On the internal level,
the Chinese Government continued to publish its ‘White Papers’ on the situation
of Human Rights in Chinese Society.[85] The arduous support for human rights
research that started in 1990, continued up until today. Numerous human rights research centers
were set up, academic publications multiplied, and integration of human rights
law in the curriculum of university students was initiated.[86]
The international
criticisms on China’s human rights situation in the international human rights
forum abated after 1993.
A lot of developing
countries backed China up in its positions. They consented with China’s argument that the specific
situation of a country must be considered when judging a country’s human rights
record, and they also endorsed the argument that development and economical
concerns had to come first in developing countries – before an effective realization
of civil and political rights.[87] The economic successes of China exerted
a great appeal on developing countries as well. Economically, China had grown very rapidly over
a relatively short period of time, and China presented as such a success story for
developing countries.[88]
The growing economic
power of China exerted influence on Western states as well. Generally, it was not seen as opportune
anymore to adopt an overtly antagonistic stance vis-à-vis China on the question
of its human rights situation. The
maintenance of prosperous economic relations got the upper hand.
The US provided the
first clear illustration: in 1994, president Bill Clinton separated
considerations of China’s human rights situation again from the decision on
China’s ‘most-favoured-nation’ status.[89] This proved to be the sign for a more
implicit treatment of the human rights theme in China during the coming years,
avoiding open conflicts.[90] The US continued however to table
anti-China resolutions at the UN Human Rights Commission, to the (increasing)
anger of the Chinese.[91]
The
EU and Human Rights in China
China’s relativistic
arguments, imploring increased attention towards national and cultural elements
when evaluating a country’s human rights situation, clearly struck a cord with
EU-policy makers. Whether caused
by the growing economic influence of China, or by a genuine concern for Human
Rights politics more reflective of intercultural differences, recent
EU-politics concerning Human Rights in China tend to concentrate more on
dialogue and cooperation, leaving confrontational one-sided critiques a thing
of the past.
In 1994, a formal
political Dialogue was established between the EU and China as the main forum
in which political concerns from both sides could be discussed. This dialogue has grown into a regular,
structured series of meetings at several levels since 2002 (EU Troika Foreign
Ministers, Political Directors, Heads of Missions, Regional Directors,
technical meetings of high officials), and still remains the preferred form to
exchange political concerns.[92] Human Rights form an important part of
this dialogue.[93]
A specific EU-China
dialogue on human rights was initiated in addition to the formal political
dialogue in January 1996.[94] Two rounds of dialogue take place every
year, under every EU Presidency.
It allows the EU to channel all issues of human rights concern[95]
in a forum where China is committed to responding.[96]
Apart from the
dialogue activities, the EU also installed legal cooperation programs, and
started financing some grassroots projects. The EU made it clear on several occasions that it wanted the
dialogue to achieve more tangible improvements in China’s Human Rights
situation.[97] These projects ‘on the ground’ serve,
at least partially, to make more concrete
progress.
The European
Commission, which takes part in the Human Rights Dialogue as a member of the EU
Troika, is committed to use its co-operation program to support human rights in
China.[98] Since 1997, several co-operation
projects have been carried out.[99]
The
EU-China Legal and Judicial Co-operation Programme, by far the most important
foreign assistance project of its kind in China, aims at supporting the
strengthening of the rule of law in China. Projects aimed at empowering citizens with civil
rights at the grass-roots level, such as the EU-China Village Governance
Programme, and projects aimed at promoting social and economic rights, notably
in Yunnan province, are only part of ongoing and planned initiatives. Since
2002, the EU Human Rights Small Projects Facility also seeks to offer support
for the setting up of innovative small-scale projects in the field of Human
rights.[100]
What is
remarkable in both the EU-Dialogue and the EU-Programs, is the focus on the
promotion of the ‘rule of law’, and the inherent link which is seen with the
improvement of human rights. This
connection is made by several countries, and several Chinese and foreign academics
also emphasize that a development of a ‘rule of law’-country will improve the
human rights situation. I will
discuss this reasoning further on in the paper. Suffice to say here that it could be argued that this link
is very weak.[101]
The EU
emphasizes that “the existence of the dialogue does
not preclude the EU from expressing publicly its concerns about human rights
violations in China”[102]. Over the years, it became increasingly
clear however that there wasn’t a true consensus among the Member States
concerning this public expression of concerns. Concerns of an economic nature seemed to stand in the way of
concerted public critique against the human rights situation in China.
In
the forum of the UN, cracks appeared in the common EU-approach towards human
rights in China in 1997. Between 1990 and 1997, the EU managed
to hold all Member States sitting on the UN Human Rights Committee in
check. All EU-states had one
position, and voted the same: a resolution on China’s human rights record. They co-sponsored several
resolutions.
In 1997,
this unity died however. In that
year, France, Germany, Italy and Spain withdrew their backing for the
resolution.[103] The alteration in French policy, which
was seen as crucial, was attributed to French reluctance to upset China shortly
before President Chirac paid a state visit to Beijing during which he was to
sign an export contract for Airbus.[104] Denmark, with the support of nine
Member States, subsequently sponsored the resolution; China retaliated by
cancelling a visit by Zhu Rongji (then Vice Premier) to Denmark and some of its
co-sponsors.[105] China also interrupted the EU-China
Human Rights Dialogue initiated in January 1996.[106] In February 1998 the Member States put
an end to discussion by agreeing not to sponsor Resolutions on China before
future sessions of the Human Rights Commission.[107]
Recent
discussion concerning the lifting of the Arms Embargo against China, the only
Tiananmen-related sanction still in place after 15 years[108],
reminds very strongly of the aforementioned EU-debacle at the UN Human Rights
Commission. During his last trip
to the EU, Wen Jiabao (Chinese premier), lobbied extensively for the lifting of
the Embargo.
A major
discussion ensued, in which the big powerhouses of the EU – France, Germany,
Great Britain – seemed all very
favourable towards a lifting of the embargo. Their arguments reflected the emphasis put on strengthening
of economic and other cooperation between the EU and China.[109] A further enhancement of these ties was
considered more important than the maintaining of sanctions dating from an era
long gone. [110]
An
unanimous decision on the lifting of the arms ban failed to be reached, mostly
because of opposition from the Scandinavian countries. It is expected however that the
ultimate lifting of the ban will be a matter of the very near future.
During the
1990s, China started an active cooperation with the international community in
the field of human rights. China
extended several invitations to UN bodies, showing that its human rights situation
was open for international supervision and examination[111]; it was the host country for the UN Conference on Women in 1995; it
started active engagement with other countries on the question of human rights
outside the UN, mostly through the form of dialogues[112];
it freed dissidents at strategic moments in time[113];… On the overall, China went to large extents to prove its
goodwill to the international human rights forum.
A highlight
in China’s campaign was the signing of the International Covenant on Civil and Political Rights in October
1997, and the signing and ratification of the International Covenant on Social,
Economic, and Cultural Rights (in October 1997 and March 2001 respectively).
Without commenting on
the symbolic or real nature of these gestures, one could say that China ‘got
its act together’, and learned how to play international human rights politics
to its own advantage. All
throughout the 90s and up till today, China totally transformed its previous
attitude of withdrawal towards the human rights forum. Obviously, international critique on
its human rights situation was something that mattered to China, and a true
offensive was started to unfound these criticisms.[114]
Most reflective were
the extensive diplomatic efforts China repeated every year before the gathering
of the UN Commission on Human Rights.
From 1990 onwards, a resolution criticizing China’s situation was
proposed almost every single year.
China succeeded however at every single occasion to avoid the passing of
the resolution. Soliciting support
of developing countries to avoid the critique was one road to success. Playing out its economic power cards
(and one might add political power cards[115])
was another path to glory.[116]
China also managed to
engage some of its strongest opponents in less confrontational dialogue-forums
– extremely fit to discuss human rights while paying attention to cultural and
national conditions, and as such completely in line with the arguments China
had been developing since the beginning of the 1990s. This form of human rights discussion, with its emphasis on
cooperation and understanding, led to a considerable softening of foreign
measures regarding the human rights situation in China.[117]
In a changing global
power context, China becomes more and more confident. The support China gets from the developing world, its
growing economic power, and its growing political impact, all create a
situation in which China is increasingly able to subdue and counter critical
voices of foreign states.[118]
B. The Chinese Government and Human Rights.
After
giving a brief overview of challenges successfully faced by the Chinese
government inside the international human rights forum, I will give a more
detailed description of the human rights views the Chinese government has used
for this endeavour.
The White
papers published by the Chinese Government since 1991 are particularly
illuminative in this regard.
Overall conceptions of human rights are illustrated as well by the
legislation issued by the Chinese Government since 1978.
“Despite
its international aspect, the issue of human rights falls by and large within
the sovereignty of each country.”[119]
On numerous
accounts, China used the sovereignty norm[120]
and the principle of non-interference in domestic matters[121]
to ward off foreign criticisms on its human rights situation. Human rights have been perceived as
part of domestic matters, which fall within the sole jurisdiction of individual
countries. This argument is
situated along the same line as the relativistic stance China has been
defending in the international human rights forum.[122]
The period
after China’s reintegration into the international forum in 1971 was
characterized by a strong accent on the sovereignty norm and the principle of
non-interference. All throughout
the 70s and 80s, China continued to emphasize the domestic nature of its human
rights matters.[123] China became increasingly active in human rights matters during the
1980s however, occasionally even pointing out human rights violations in other
countries. As such, China put
itself in a more vulnerable position.
The overall emphasis on sovereignty and non-interference lost some of
its power; China became more susceptible to critical voices and investigations
into its own human rights situation.
When the international
community gave China a clear critical message in 1989, China originally
rejected all critique on the basis of the domestic nature of human rights
matters.[124] During the 90s, China would continue to
repeat the rhetoric of sovereignty and non-interference whenever it was faced
with overt criticisms coming from foreign countries.[125] The increasingly active engagement of China in the
international human rights forum, makes it more and more difficult for China to
support the argumentation of sovereignty and non-interference. As China criticizes the human rights
records of other countries more actively, and even publishes ‘Human Rights
Reports’ on the situation in other countries[126],
it is hard to maintain that human rights are essentially of a domestic nature
not to be interfered with by other countries.[127]
b.
Citizen rights and Human rights
Illustrative
of the Chinese claim that the human rights situation is of a domestic nature,
is the overall importance of ‘citizen’s rights’ in Chinese legislation. Up until very recently, there wasn’t a
single reference to ‘human rights’ in any of the Chinese laws, indicating that
‘rights’ only exist as something given by the state.[128]
In March of
2004, the Constitution was amended.
Now, article 33 of the constitution indicates that “the state respects
and protects human rights.”[129] Although this statement obviously has a
very symbolic character, it indicates that the Chinese government are slowly
bringing some nuances in their claims concerning the domestic nature of human
rights.
c. The
Right to Subsistence – Developmentalism – Importance of the Collective
The
publication of the first White Paper in 1991 heralded the birth of a new right,
the ‘right to subsistence’. This
right was presented as the most important human right for Chinese people. In its description of the ‘right to
subsistence’, the White Paper linked up the independence of the Chinese nation
from colonial domination and the right to development with the right of Chinese
people to adequate food, clothing and shelter. As such, the survival of the Chinese socialist state (and by
extension of the Chinese Communist Party) was conflated with the survival of
the people.
The right to
subsistence took up a prominent place in the Chinese Government human rights
rhetoric all throughout the 90s and up until today.[130]
Emphasis on
the right to subsistence indicates the primary importance the Chinese
government attaches to economic, social and cultural rights – it indicates that
China considers that the implementation of these rights has preference over the
realization of civil and political rights.[131]
Moreover,
it points to the developmentalist approach of the Chinese government towards human
rights. The right to subsistence
and the right to development are mentioned side by side in the White Papers
published by the Government. The central claim of developmentalism is that
successful socio-economic development produces civil and political liberties
and that collective rights are more important than individual rights. The
Chinese government emphasizes the inseparability of the development of the
nation from the development of human rights. National development must be put
before the realization of human rights with a more individual character, like
civil and political rights.[132]
The
importance attached to the collective is also illustrated by Chinese legal
texts protecting human rights. The
most obvious example is contained in article 51 of the constitution: “Citizens of the
People's Republic of China, in exercising their freedoms and rights, may not
infringe upon the interests of the state, of society or of the collective, or
upon the lawful freedoms and rights of other citizens.”[133]
Article 51
subordinates as such all the previously mentioned constitutional rights of
Chinese citizens to collective interests, which are not further specified in
the rest of the Constitution.
The
developmentalist discourse of the Chinese government, and the preference of the
collective over the individual, has been linked back extensively to the Chinese
legal tradition. Although the
Chinese government tends to focus more on economical arguments to underscore
the importance of the collective, cultural arguments pointing to the Confucian
heritage of China have been cited on numerous occasions to justify the overall
preference for the collective.[134]
d.
Rights and Duties
Another
view closely connected to the developmentalist discourse, and with obvious
roots in the Confucian heritage, is the close connection made by the Chinese
government between rights and duties.
Chapter 2 of the Constitution is entitled “Fundamental Rights and Duties
of Citizens”, and numerous articles give the impression that rights and duties
form a unity. Article 33 provides
that “every citizen is entitled to the rights and at the same time must perform
the duties prescribed by the Constitution and the law”.[135] Article 52 to 56 prescribe specific
duties of Chinese citizens[136]
and numerous articles simultaneously treat rights as duties.[137]
C. The
Role of Academia.
Academic
freedom in China concerning human rights research has undoubtedly increased
over the past few decades. The
political climate for human rights education and research has dramatically
improved, especially during the last few years. The European Union and other ‘dialogue countries’ have also
arduously supported human rights scholars in their work. Expert seminars on
human rights were made part of the political dialogues that form the main
element of their human rights policy towards China, and numerous exchange
programs were set up.
However
positive an evolution, it is necessary to make some critical remarks concerning
the role of academia in China’s present-day society; the dialogues and
exchanges need to be examined in full daylight.
a. Growing Academic Freedom?
The
academic writings concerning human rights during the 1970s were relatively
few. Human rights were generally
still considered a ‘bourgeois slogan’, and discussions on human rights were
perceived as an attack on the regime.
Human rights was still a very sensitive issue, and this was clearly
illustrated by the suppression of the ‘Democracy Wall’ movement at the end of
the 1970s.[138]
By 1982,
the official discourse had generally begun to affirm and support human rights,
and there was space for limited academic freedom surrounding human rights
during the remainder of the 1980s.
But it was
only at the end of the 1980s that China really entered a new stage in the debate
on human rights. The official
position was more affirmative[139],
which encouraged individual scholars to express more liberal and positive views
of human rights.
This open
atmosphere ended abruptly with the Tiananmen-incident of 1989.
As discussed before[140],
China decided to organize itself after an initial period of insecurity and
withdrawal. The Chinese state
unleashed a ‘human rights fever’ in September 1990, and continued to support
Chinese legal scholars in their academic research concerning human rights up
until today. Chinese legal
scholars were encouraged to further their research on human rights so as to
contribute to a strengthening of the Chinese position on human rights. As this body of legal doctrine evolved,
it became increasingly obvious that one has to distinguish the more academic
discussions taking place in China, from the official rhetoric.[141]
Undoubtedly, over the
last decade, the political climate for human rights education and research has
dramatically improved, and the amount of scholarly works on human rights has
increased hugely. It is important
however to make a distinction concerning the different types of works that have
been issued on human rights.
When reading
contemporary Chinese works on human rights, I personally find it useful to keep
the following classification in the back of my mind.[142]
On the one
hand, there are works that overtly reflect the official viewpoint on human
rights.[143] One might say that these works
constitute the kind of academic activity the Chinese government originally
wanted to support when unleashing the ‘human rights fever’. Works that could provide theoretical
support for the government’s opinions.
On the
other hand, there are works which reflect an extensive theoretical knowledge on
human rights, which are not necessarily agreeing with everything the Chinese
government says, but which do not mention the practice of human rights in
China.[144] Criticisms of official positions or
official measures can often be distinguished ‘between the lines’, but will
never be mentioned overtly.
And then
there are works which reflect a thorough study of human rights, incorporating
different viewpoints and often leaning towards Western approaches concerning
human rights problems, which do not strictly follow governmental arguments, and
which mention the practice of human rights in Chinese society.[145]
The
overwhelming majority of works concerning human rights belong to the first or
the second category. Works from
the third category are dramatically underrepresented. Almost all of the published research work specifically on
human rights does not contain any serious examination of rights in practice in
China, whether in terms of the implementation of laws or of the situation on
the ground.[146] Exceptions that do reflect research ‘on
the ground’, also tend to focus on issues that are of a less sensitive
nature. As such, discrimination
against women and rights of rural citizens present suitable topics, but writing
on the treatment of Falungong adherents, or the suppression of ethnic
minorities like the Uyghur in Xinjiang is totally off limits.[147]
The fruits
of the unprecedented development of human rights scholarship are as such almost
entirely theoretical in nature.
Recurring themes include the (philosophical/cultural) history of the
concept of human rights[148],
the evolution of human rights in China[149],
theoretical interpretations of particular rights (with often a thorough
explanation of international law – foreign law concerning the protection of
this right)[150],
theoretical works on the rule of law (or aspects thereof) and the protection of
rights[151],…
As
mentioned before, not all of the works follow the opinions expressed by the
government. There is a wide
variety of theoretical views, not all confirming government positions. Critiques on China’s situation are
never mentioned in an explicit way however. Even works exploring the current legal framework for
specific rights, hardly ever formulate criticisms on laws that don’t comply with
specific rights standards. Often
it is more useful to look at legal or sociological works outside the ‘human
rights circle’ (not mentioning the words ‘human rights’) to learn about
specific conflicts between Chinese and international law.[152]
This raises
some questions concerning the increased academic freedom of human rights
researchers in China. As increased
scholarly attention towards human rights originated in a governmental need for
means to refute foreign critics, a spotlight was turned on human rights
scholars, arguably constraining them more in their work than they otherwise
might be.[153]
Human
rights stay a very sensitive issue.
This is all the more illustrated by the fact that outside academia,
numerous persons continue to be arrested and sentenced to prison for airing
views surrounding democracy and human rights.[154]
b. The
Role of Scholars in External Human Rights Politics
The role of
academics in the dialogues constituting the main element of human rights policy
towards China in the European Union and its member states (and in other countries
like Canada and Australia) has been very large. Expert seminars in which Chinese and Western academics are
brought together to discuss pre-agreed topics have become a regular complement
to bilateral political dialogues on human rights.[155] The seminars are just the most
politically visible aspect of a broad range of exchanges funded by Western
dialogue countries.[156]
The
seminars have covered a range of topics, including the death penalty, ethnic
minority rights, the right to education, transparency and regulation of the
mass media, mechanisms for the implementation of economic, social and cultural
rights, the establishment of national human rights institutions, and the
prohibition and prevention of torture.
Normally, each ‘side’ presents papers or makes presentations, after
which there is time for some discussions and for joint statements. Papers have been published on some
occasions, but mostly they have not been made public.[157] Reporting on the discussions is very
limited, both in China and in the dialogue partner countries. The seminars are usually closed to
journalists.[158]
The papers
presented by the Chinese participants (including both officials and academics)
reflect what we discussed before concerning the general theoretical nature of
academic works concerning human rights.
Mild criticisms on the Chinese law are sometimes ventured, but there is
virtually no mention of specific rights practices on the ground.
Comments on
the seminars (and on the political dialogues in general) voiced by Western
participants all seem to point to the fact that the same things are being said
over and over again without any visible result. It is generally argued however that it would be a mistake to
move towards a more critical posture, as China would be likely to cut off the
cooperation programs linked to the dialogues.[159]
As such,
the dialogues have been the object of numerous critiques. Especially because the dialogue and
cooperation programs seem to replace more overt critique in the international
forum, a number of scholars have raised their voices against the ‘political
theatre’ played inside the dialogue forums.[160]
c. Rule
of Law and Human Rights
In a last
section on academia, I would like to focus on a broader research subject that
has dominated the Chinese legal world ever since the opening up in 1978; the
rule of law. As the rule of law is
commonly associated in the West with democracy and a liberal version of human
rights (giving priority to civil and political rights), there seems to be a
tendency to link overt advocacy for the rule of law and improving of the rule
of law system to a better protection of human rights.[161] Although this reasoning isn’t totally
untrue, I would plea for a more thoughtful definition of the rule of law,
pointing out that the rule of law doesn’t necessarily need to have a liberal
content.[162]
First, I
briefly sketch out what is generally meant by ‘China’s march towards the rule
of law’. I will then make a
few comments on how extensive linking of the two concepts could be erroneous.
In 1978,
Deng Xiaoping mentioned both law and economics as important pillars which
should support China in its modernization process.[163] In concomitant years, there was
widespread debate regarding the rule of law and the rule of man in China, in
which many legal scholars participated. The majority of the scholars made a
clear distinction between the ideals of the rule of law and the rule of man and
the significance of the rule of law to the country. [164]
However,
law didn’t occupy a very estimable or autonomous position at that point. Law was mostly seen as an instrument to
be used for the reform into the 4 modernizations.[165] Law was seen as a ‘more mature’ way to
lead the country into economic reforms than policies, and as such, the legal
system should be built up.[166]
Although
the stability of law was seen as a necessity for economic reforms, the
development of law went step by step during the first few years. The law was necessary for economic
development, but since it wasn’t really sure yet where this development was
headed, a piecemeal – ad-hoc approach was adopted.[167]
The
Constitution of 1982 provided in its article 5, that “No organization or
individual is privileged to be beyond the Constitution or the law.”[168] But obviously this statement came way before its time. Government and Party were above the
law, using the law as an instrument to rule the country.
In 1992 there was a
big turnaround. After 15 years of
reform, the party officially put up a long term plan, a plan to set up a
‘socialist market economy’. This
caused huge changes in the construction of the legal system. It was the first time in the history of
the People’s Republic that a link had been made between socialism and the
market economy. The idea had been
developed by Deng XiaoPing, and was accepted into the party line of politics in
1992. At the 14th party
congress of the communist party, it was stressed that the construction of a
legal system had the biggest priority.
The actual meaning of
this turnaround is in the fact that it stressed that the demand for ideological
correctness could be left behind when introducing reforms. In other words, the notion of a
‘socialistic market economy’ could be seen as a permission to use capitalism in
the economic regions. It was a
permission to use capitalistic mechanisms and measures (including legal
measures) to ease the economic reforms.
This new direction for
economic reforms had major implications for the legal development in
China. Scholars and officials were
now able to introduce new ideas and practices without having to pretend that
they were of ‘socialistic nature’.
This explains all the lively discussions in legal circles concerning
legal ideologies and legal development after the 14th party
congress.[169]
There were
more and more critical voices in legal circles, calling for an end to the
‘ad-hoc approach’, criticizing old doctrines of the soviets (in which legal
theories were a compromise to the political ideologies), and demanding a bigger
separation of private and public law.[170]
In general,
jurists were asking for a move from the ‘rule by law’[171]
to the ‘rule of law’.[172]
Finally, in
1997, the Report of the Fifteenth National Conference of the Chinese Communist
Party expressly stated their policy of
“ Governing the country according to law and making it a socialist rule
of law state”(Yifazhiguo, jianshe shehuizhiyi fazhi guojia).[173] This was also later incorporated within
China’s Constitution when it was amended in 1999.
To say that
China has achieved a ‘rule of law’ regime, would strike most as a category
mistake.[174] However, the achievements have been
impressive. Highlights[175]
include new legislation – such as the Constitution of 1982 (amended 4 times up
till now), the Administrative Litigation Law of 1989 (allowing citizens to sue
the government), the new Criminal Law of 1997 (replacing the old one of 1980),
Laws protecting the rights and interests of specific groups of people
(consumers, the elderly, women, the disabled), the legislation law (2000),… – and more attention towards the
quality of the judiciary – reflected in the upgrading of the legal education,
the Judges Law of 1995 (amended in 2001), the setting up of judicial exams for
persons wanting to enter the judiciary (2001), the Lawyers law of 1996 (amended
in 2001),…
The march
towards the ‘rule of law’ has concluded so far with the adoption of the
protection of private property in the Constitution (amendments made in 2004),
and with promises for a first ever civil code.[176]
Talking
about the connection between democracy, human rights and the rule of law, we
are faced with a similar problem as explored in the first part of our paper,
when referring to human rights and ‘Asian values’. Coming from a Western background, one might view the ‘rule
of law’ too easily as entailing democracy and a liberal version of human
rights.[177]
It might be
more precise to distinguish between ‘thin’ theories - pointing towards the core
concept of the rule of law and which could entail judicial independence, law
binding government actors,… - and ‘thick’ theories of the rule of law -
pointing towards conceptions that are more ideologically tinted, and which
could be of a liberal nature, or even of a socialist or communitarian nature.[178]
Peerenboom
points to the fact that “… liberals who think that China is on the way to
establishing a liberal legal system of the kind found in Western democracies
seem at once overly optimistic and underappreciative of differences in
fundamental values that have led many Asian countries to resist the influence
of liberalism in favour of their own brand of ‘Asian values’.”[179] On the other hand, “…sceptics who deny
any fundamental change in the basic nature of China’s legal system seem unduly
pessimistic or cynical.”[180]
As such, he
suggests a middle ground. He sees
a shift toward a system that complies with the basic elements of a thin rule of
law. Yet a shift toward a rule of
law understood to entail democracy and a liberal version of human rights seems
far away. Alternative conceptions
to a liberal democratic rule of law (like a neoauthoritarian, or a
communitarian version of rule of law) have to be explored.[181]
Currently,
China’s laws and regulations often provide individuals with important
rights. A striving for a resolving
of thin rule of law problems, like poorly trained judicial personnel and a weak
judiciary, evidently connects towards a better protection of human rights. It would be a mistake however to place
the whole evolution of the Chinese legal system, and the extensive activity of
legal scholars supporting the realization of a more complete legal system, in
the perspective of the eventual evolution towards a liberal rule of law -
regime.
D.
Experiences from China’s Growing Civil Society.
The cautions that I
mentioned when talking about the ‘rule of law’ in China, apply in a very
similar way to discussions concerning the ‘civil society’ in China.
The term ‘civil
society’ has acquired a lot of connotations, usually associated with the role
it played in the construction of liberal democracy in Western countries and
more recently in Central and Eastern European countries[182]. Independence from the state, and even
resistance to the state are seen as essential elements of the ‘civil society’
in the West. In an arena not
controlled by the government, voluntary associations and citizens’ groups –
often caught under the denominator Non-Governmental Organizations or NGOs –
work to create political space in which citizens can exercise their rights to
free association and expression,
to independent service providers (in fields as health, education,
culture, the arts and social welfare), and to advocacy (for rights issues,
environmental issues,…).[183] As such, the ‘civil society’ is seen as
very important in putting a limit on the power of the government, and essential
in building up and conserving a liberal democracy.[184]
The
dominant but simplistic 'civil society' paradigm, under which autonomous and
often confrontational NGOs lead the way towards more democratic societies, is a
real obstacle to understanding the context in which social organizations are
emerging in China today.[185]
In a first part, I
will give a brief overview of the rise of ‘social forces’[186]
in China during the past few decades, indicating how the concept of ‘civil
society’ must be understood on totally different terms in China. I will then give a personal account on
how human rights discourse enters some of the grassroots organizations that are
part of China’s ‘civil society’, based on ethnographic research conducted
during the period of September 2003 – June 2004.
Before the
modernizations started by Deng Xiaoping, there was a near complete overlapping
of state and society. The state
and the communist party branched out into all depths of Chinese society. Everything was organized within a very
hierarchic system, that branched out into the whole of Chinese society
life. At the basis, people were
divided up into urban work units and rural communes. Through these basic units, the state provided for the
fulfillment of essential needs of everyone (the well-famous ‘iron rice bowl’),
and made sure that the whole Chinese population was kept in place. In general, there was no place for real
non-governmental activity.[187]
After the
modernization started, and a certain degree of liberalization was imported into
Chinese society, cracks began to appear in the old system. The introduction of non-state owned
economy gradually replaced the original system of urban work units and rural
communes. Decentralization and
market competition started to reduce the role of the state and began to open up
a whole variety of opportunities for the entire society. The changes made Chinese society more
complex and dynamic, they altered the ways in which society is organized and
interacts with the state apparatus.[188]
Chinese society was no
longer monopolized by the Party-state.
Power came to be shared among various political, social and economic
actors. As society opened, individuals
and citizen groups had more space to be active in creating new ideas and
approaches to tackle social issues and problems.[189]
At the same time,
economic liberalization created serious social problems. Economic reform effectively fractured
the ‘iron rice bowl’, and brought problems such as urban unemployment, rural
migration, and a growing disparity between rich and poor and between different
geographical regions. China also
became increasingly faced with crises having large-scale societal implications,
such as environmental degradation and the rapid spread of AIDS and HIV in its
population.[190]
Reactions of the
Chinese government to changes in society varied, characterizing a dilemma. On the one hand, party and government
face a daunting combination of existing service gaps, expanding demand for services,
and severe fiscal constraints.
Substantial expansion of state provision appears neither to be
practicable, nor to feature in the leadership’s plans.[191] The enlisting of ‘social forces’ in
service provision seems unavoidable.
On the other hand, the
government fears chaos, and is afraid of unleashing social forces it cannot
control.[192]
I will not further
discuss the initiatives the Chinese government has taken in the profit sector
to deal with this dilemma[193]. Instead, I’ll give a brief overview of
the non profit sector, grouping different organizations according to their
relationships with the government.[194]
From the 1980s, a
parastatal non-profit sector has been developed by government and party
departments setting up foundations and other organizations to advance charity,
research, information and policy objectives. These are commonly referred to as ‘GONGOs’ (Government
Organized NGOs).[195] Traditionally, organizations in this
domain are ‘mass organizations’, such as the “All-China Women’s Federation”,
the “China Disabled People’s Federation”, and the “All-China Youth
League”. Some of these
organizations already existed before 1978. They functioned as transmission-organs between the party and
society at that time. From the
1980s onwards however, a gradual rethinking and restructuring of these
organizations took place, away from their original role as Communist Party
overseers towards a more service facilitation and provision role.[196] Purposes of these organizations vary
from receiving philanthropic funding that the government itself finds hard to
access, to providing access to international non-governmental fora, to advocacy
roles for their target population and to the exploration of new areas of work.[197] The GONGOs are often criticized as not
being real NGOs, but just servants of the government. Recent developments show however that many of these
organizations are steadily acquiring a more independent identity, and
developing a sense of themselves as belonging to a distinctive, non-government
community.[198]
A second group of
organizations could be termed ‘registered NGOs’. These organizations present a certain mix between state and
society. The main rules covering
associational activity in China are highly restrictive, and official
registration implies a certain control from the government.[199] The regulations involve three general
requirements which altogether limit the nature and range of activities in which
citizens may jointly engage. All
organizations must be sponsored by a government, party or mass organization
department in a ‘relevant field’; only one organization of any one type is
allowed to register at each administrative level; and organizations are not
allowed to operate out of the area in which they are registered.
A large group of
organizations tries to avoid these restrictions. They could be described as ‘non-registered NGOs’. They bypass the regulations by
registering with the Bureau of Industry and Commerce as enterprises, or they
claim to be an offshoot of a registered agency or a commercial enterprise that
doesn’t require a separate organization.[200] These organizations operate in a ‘gray
legal zone’. Although not
officially registered as NGOs, they operate as such, and are on numerous
occasions even recognized as NGO by government-related agencies.[201]
But not all
organizations are recognized or indulged by the Chinese government. The fear of the Chinese government for
chaos and instability becomes obvious when talking about ‘illegal
organizations’. This group of
organizations is mostly handled with repression, and it is very diverse.
Criminal
organizations, like ‘black societies’, smuggling networks and vice rings, form
a big part of this group, as they present a clear threat for the political
regime. But also associations and
movements that acquire an obvious political dimension are seen as threatening,
and are suppressed. The government
made this very clear with the Tiananmen massacre in 1989. And then there are also organizations
that don’t form a specific threat towards the government, but are seen as
potentially dangerous because of their size, because they are organized in an
independent way, and because they contain members who might cause
disorder. The recent suppression
of the Falun Gong sect provides a clear example: it is almost certainly not the
eccentricity of the group’s beliefs, so much as its wide reach among the
general population that has alarmed the party leadership.[202]
This brief overview
serves to illustrate that a push and pull between the state and society is
likely to continue for a considerable amount of time. There is a clear trend of an emerging civil society in
China. NGOs have been delivering
services and conducting advocacy in a way that is more independent from the
state. Chinese laws and
regulations have not fully endorsed NGOs or all activities conducted by NGOs,
yet Chinese NGOs manage to bypass the restrictions in one way or another.[203] The government and the party are not
willing to let loose though. Jiang
Zemin stated in the 16th party Congress that “the Party’s leadership
in social organizations as well as in the intermediary organizations shall be
strengthened”.[204] The control is evident in the legal
regulations, and even organizations that bypass these regulations have to take
care not to take actions of a too political nature, as this may result in
closing down and suppression.
As such, the Western
paradigm of ‘civil society’, under which autonomous and often confrontational NGOs lead the way
towards more democratic societies, is not workable inside the Chinese
society. A more permanent form of
interaction between the state, the non-governmental sector and the commercial
sector seems more reflective of the present situation.
b. Human Rights
Discourse inside of China’s Civil Society.
From September 2003 up
until July 2004, I conducted ethnographic research into human rights
conceptions among Chinese grassroots organizations working towards the
promotion of the social status of different groups of people (the disabled,
People Living With HIV/AIDS, gay/lesbians, rural migrants).
Ethnography points to
a research method coming directly from the discipline of anthropology, used
ample times by legal anthropologists.
It involves long-term active engagement with the research subject, and
aims to reduce the impact of personal opinions of the researcher to let the
research subject ‘speak for itself’.
As a ‘participant
observer’, I worked together with a number of Chinese grassroots organizations,
with an aim to render an impression of the images of law and human rights that
are present amongst them. Although
this method can at best only give flashes of what is happening in a constrained
area of Chinese society, it allows one to go deeper into the origins and causes
of reigning conceptions.[205]
I mainly concentrated
my research on two Chinese organizations, each of them working for the
promotion of marginalized groups in Chinese society.
XINGXINGYU (XXY,
‘Stars and Rain’) was the first organization on the Chinese mainland to offer
professional help to people with autism.
They mainly offer educational courses to parents of autistic
children. During a period of 11
weeks, they teach parents essential educational techniques that help them take
care of the child’s development, and they give the parents societal training on
how to deal with the child’s reintegration into society.
POSITIVE ART WORKSHOP
(PAW) provides art classes for People Living With HIV/AIDS (PLWHA). Originally set up as a space where
PLWHA found a positive environment for network opportunities, psychological
help and basic information about AIDS, the Positive Art Workshop is evolving
towards a center for the promotion of the social status of PLWHA in China. The PAW cooperates in designing prevention
and information campaigns, it creates social awareness and social integration
through exhibitions of art work made during the classes, and it forms a contact
center for PLWHA from all over China.
In what follows, I
will give an overview of preliminary impressions gained through study at
XXY and PAW, adding
information I gathered through contacts with other individuals and
organizations active inside China’s ‘civil society’. I first relate some issues surrounding the specific workings
of the organizations encountered, and discuss several remarks regarding their
human rights conceptions afterwards.
NGOs:
a relatively new phenomenon in China
Firstly, I have to
stress once again that the phenomenon of NGOs is quite recent in China. The organizations I studied are
therefore already quite ‘special’, precisely because they manage to operate
under the form of a NGO.
Research at XXY showed
that this isn’t obvious. The
management of XXY would get quite a few calls from newly constructed
organizations working around autism, asking them all kind of questions
surrounding the setting up of an effective working. As XXY was the first NGO for autistic people to be built up
in China, they automatically took up a model function for the organizations
after them. Starting up in 1993
with one English textbook on autism, three teachers, and a room rented at a
kindergarten, they took ten years to arrive at an organization which monthly
trains over 50 families in educational techniques surrounding autism.
They commented that a
lot of the new organizations are primarily occupied with the wrong issue:
money. They don’t have the right
channels to look for professional training of their teachers, they are
unfamiliar with issues of advertising, networking and fundraising, and often
try to take up as much autistic people as possible in order to use the money
obtained through the fees to enlarge their organization. As they are unable to professionally
deal with the needs of the people coming to their organization, who are paying
for their services, they are often forced to close down after a short period of
time.
Other organizations
are able to function for a while thanks to funding coming from international or
domestic donors, but lack the skills to sustain the organization
afterwards.
Lack of knowledge
concerning the building up of non-profit organizations and NGOs is a general
phenomenon in Chinese society. A
number of umbrella organizations are setting themselves up to deal with these
issues.[206]
International donors
also recognize these weaknesses and often take the initiative to organize
training sessions or networking events.
Talking to several of the donor organizations also revealed that
sustainability takes up a more central place when considering the funding of a
project, because it was noticed that the large amounts of money involved
attracted people that didn’t plan to build up a long-term NGO operation; they
were just in it for the short-term money.
Most of the
organizations I worked with in China fall under the category of ‘non-registered
NGOs’.[207] They define themselves as NGOs, but are
not registered as such under the Chinese law, as they try to avoid the
restrictions set up in the regulations concerning NGOs in China.[208] It is also the avoidance of
restrictions and supervision that prompts them not to adopt the term ‘human
rights’ to describe their activities.[209]
Organizations adopt a
variety of legal forms to be able to operate inside Chinese society. XXY is registered as a research center
/ business at the Department of Industry and Commerce. The Positive Art Workshop functions as
a project under one of Beijing’s hospitals, and is planning to register as a
business under the Department of Industry and Commerce. Other organizations adopt similar
tactics to avoid formal registration as a NGO.[210]
As such, the
organizations aren’t considered ‘illegal’ in the Chinese legal society. Contact with the state administration
and with governmental departments is not avoided either. Mostly through informal ways, contact
with governmental departments is established, which allows these organizations
some leeway in their present structure of organizing, and allows them some
limited influence on governmental decisions. On several occasions, it was also noticed that
Government-related agencies explicitly solicit the help of the organizations
when dealing with unfamiliar issues.
I cite a few examples below:
XXY established an
informal contact with a member of the Government Department of Industry and
Commerce to make sure that XXY wasn’t declared bankrupt because of its failure
to make any profit over a period of 3 years.
On the occasion of big
activities organized by XXY, members of the Ministry of Education and other
persons involved with government departments[211]
are invited to participate.[212]
The government paid
more specific attention to PAW.
Upon the presentation of the national plan of AIDS-prevention in
December 2003, the presence of organizing members of the PAW was sought to give
an overview of their non-discrimination activities in Chinese society.
This governmental
attention can also be found at another organization, the Beijing Gay
Hotline. On the arrival of the
delegation of UNAIDS in China in 2002, governmental departments sought the
advice of the Beijing Gay Hotline on the prevention of AIDS among the Chinese
gay population.
As such, the
organizations try to find a way to operate independently from the government,
while making sure that there is still opportunity to make an impact on
government decisions. It is
interesting to notice that government departments also solicit the knowledge of
organizations when dealing with issues outside their field of expertise. This often coincides with enquiries
made by international bodies.
The organizations are
imbedded in the Chinese society, but are increasingly taken up into a global
community of organizations. This
is documented by the fact that all of the encountered organizations receive
funding from international organizations.[213] Applications for funding from
international organizations are also tailored to the requirements made by these
funding organizations, which involves research into foreign approaches towards
dealing with ‘civil society’-issues.[214] Moreover, linking up with foreign or
international organizations reflecting similar thematic issues seems to be an
important aspect of all organizations encountered inside Chinese society.[215]
When discussing the
legal form of the organizations and their interaction with the government, some
examples already indicated that international attention can be useful to
increase respect from the government for their activities.[216] I will cite one more instance to
document this beneficial influence:
On a summit on
AIDS/SARS held on November 10, 2003, ex US President Clinton shook hands with
Song PengFei, co-founder of the Positive Art Workshop.[217] This gave raise to an increased
attention by the Chinese Government for the activities of Song PengFei and the
Positive Art Workshop.[218] Upon this incident, the PAW was
increasingly invited to participate in government organized meetings
surrounding HIV/AIDS, such as the presentation of the national plan on
AIDS-prevention in December 2003.
International funding
organizations and international NGOs can also play a significant role towards
promoting cooperation between Chinese NGOs and the government. At a Civil Society Roundtable
concentrating on the HIV/AIDS theme, several participants mentioned this
leverage potential of international bodies.[219]
Preliminary research
results permit me to say that these organizations have a general dislike of the
term “human rights” (‘renquan’).
Fieldwork at XXY and PAW, and informal talks with all of the other
organizations, serve to show that the organizations avoid the use of the word
“human rights” in presenting their activities to Chinese society and to the
‘beneficiaries’ of their activities.[220] “Human rights” is generally seen as
something very political. When
talking about “human rights”, mention is frequently made of the political
quarrels between China and the West.
On several occasions, it was mentioned that a too overt use of this term
could lead to supervision and control by the government.
However, it became
clear that some of the organizations do have a pronounced “rights”-approach in
their activities. The term “human
rights” is avoided, but preliminary findings show that the working of the
organizations bases itself on ideas very similar to those found inside the
international human rights discourse.
Up till now, this
“rights-approach” has showed itself most clearly inside the workings of
XXY. The parental education course
I observed at XXY emphasized that parents need to be aware of the fact that
their child is a full-fledged member of society, having rights that ought to be
respected and that could be claimed by the parents.[221] In all of their talks, these ‘rights’
took up a central position, but the term “human rights” was explicitly
avoided. Their teaching of
societal techniques is also largely based on the ‘Social Model of
Disability’. This model is also
primordial to Western activists of human rights for disabled people, and it
currently forms the basis for international documents on human rights for
disabled people.[222]
As such, these
findings can be reflective of what was mentioned in earlier studies concerning
human rights views and political interests of ‘common Chinese people’.[223]
Human rights in their
political dimension are avoided.
The very term of ‘human rights’ (renquan) already acquired political
connotations, and is as such rejected in discussions. Rights-talk is accepted however when the precise contents of
the term are formulated in a more specific way, and connections can be made to
concepts which are more reflective of Chinese culture – such as ‘renqing’,
which points to feelings between people and a basic amount of respect that
should guide relationships between people.[224]
Legal
Consciousness. Taking Rights
Seriously.
The general march of
China towards the rule of law, and the push for a more complete legal system
respected by all, increasingly creates windows to address human rights
issues. As laws explicitly provide
the protection of specific rights, the rhetoric used by the Government to
promote obeisance to the law can be used for effective implementation of rights
provisions.
The tactics applied by
the Culture and Communication Center for Facilitators, an organization working
for a better protection of rural migrant workers, form an illustration. All possible laws that are talking
(even abstractly) about rights of (migrant) workers are taken seriously, and
efforts are being made by this organization to put the law into practice.[225] As rural migrant workers are often in a
weak position to discuss their rights with employers[226],
the Center is often engaged in representing the workers before their
employers. Often, regulations are
used to point out to the employers what responsibilities they have. A threat with a lawsuit often suffices
to convince employers to respect their employees’ rights.
The same tactics are
used by Mr. Chen, a blind activist encouraging and helping disabled people from
villages all over Shandong Province to use the provisions of the law on the
protection of disabled persons to defend their rights against local
governments.[227] He encourages people to sue their local
government if it doesn’t comply with the law[228],
and is a firm believer of the fact that increased legal consciousness and
rights consciousness will lead to a better protection of rights in China.[229]
However, for these
tactics to work, one needs clear and specific provisions. At XXY, the overwhelming attitude of
people towards the law was negative.
China currently has a law specifically providing for the protection of
disabled persons[230],
and explicitly provides for a universal right to education.[231] Most people are aware of these laws,
but consider the provisions too general, and don’t see any use in trying to get
an effective implementation of these legal rights.
The lack of definite
and clear provisions inspire people of the PAW to think in similar negative
ways about the law and its present usefulness.[232] Recent changes in the governmental
position inspire hope, but the vague reporting on the effective implementation
of these changes still provides for skepticism as a general attitude.[233]
During a seminar on
law and the gay population organized by the Beijing Gay Hotline, attention was
geared to the fact that no law or regulation specifically regulated the gay
population.[234] Experienced lawyers testified however
on how existing laws could be used by the gay population to effectively bring
their non-discrimination cases before the Chinese courts. In contrast with XXY and PAW, the law
was seen by all organizations participating in the seminar as an ally in
protecting the gay population. The
Beijing Gay Hotline recently also formulated plans to build up a center
focusing on legal protection for gay/lesbian people, and promoting legal
recognition for the homosexual population.
Conclusion?
From this overview of
preliminary findings concerning my research into several Chinese grassroots
organizations, no definite conclusions can be made regarding the whole of
‘Chinese civil society’. Several
trends can be observed however.
These trends are reflective of the direction ‘civil society’ is taking in China: a direction not
necessarily leading towards a Western-styled ‘civil society’.
Except when there are
clear legal provisions providing for rights protection, organizations tend not
to use the discourse of human rights as a way to put pressure on governmental
or other agencies. The term ‘human
rights’ invokes connotations of a political and a dissident nature, and is
avoided when addressing Chinese society.
Preference is given to promote the social position of marginalized
groups by using a discourse which emphasizes concepts with a Chinese historical
and ideological background. This
discourse often reflects ideas very similar to what is found inside the
international human rights discourse.
Integration into a
global community of organizations, and increased interaction with international
NGOs and funding organizations in China does provide for adequate information
on foreign (international) human rights and civil society views. There is as such a place for ‘human
rights talk’, but the discussions are mostly limited to foreign audiences.
On the overall,
resistance towards state agencies isn’t seen as very useful in the furthering
of organizational goals, except when clear legal provisions can be used before
the court to point out responsibilities to governmental actors . Some form of cooperation with the
government – which can take the form of informal contacts with administrative
servants, cooperation projects with local governments, ties with GONGOs,… – is
seen as beneficial to the workings of NGOs.
The recipe for a
Chinese ‘civil society’ which is more confrontational towards policies and
governmental attitudes, seems to be a set of clear legal provisions on which to base themselves in
setting up their activities and furthering their goals. As the whole country is encouraged to
further the ‘rule of law’, and as there are possibilities to pressure
governmental agencies in obeying their legal responsibilities, an effective
implementation of these provisions could become feasible.[235]
But, as mentioned
before when discussing the rule of law in China[236],
a shift toward a rule
of law society understood to entail democracy and a liberal version of human
rights seems far away. For now, grassroots
organizations continue to operate in the most productive way possible, which
often involves cooperation instead of confrontation, and gradual China-specific
persuasion instead of shouting out for respect of their ‘human rights’.
On a conference
organized by the Tsinghua University on the media coverage of AIDS[237],
one of the foreign speakers warned for the phenomenon of ‘AIDS with Chinese
characteristics’.[238] He had observed a tendency among the
Chinese media, and inside Chinese society in general, to treat the topic of
AIDS as having ‘special characteristics’ in China. He pointed out that an overt use of the concept ‘AIDS with
Chinese characteristics’ involves some hazards.
China is a country
where public attention and government attention towards the AIDS-problem only
started relatively recently. The
HIV-epidemic is still at a first stage, and the spreading can be limited if
urgent measures are taken.[239] China should as such take as much
advantage as possible from knowledge acquired throughout the rest of the world
during the last few decades.
Treating AIDS in China as a problem that should only be tackled
according to China-specific measures, tends to exclude China from these worldwide
experiences and expertise.
Upon hearing the
concept of ‘AIDS with Chinese characteristics’ for the first time, I found it
to be strange and unsettling . The
resemblance to ‘Human Rights with Chinese characteristics’ was striking, and
made me think about the general tendency of China to emphasize its
particularity and its unique position in the world through the use of
China-specific concepts. [240] Often the China-literature in the West
also reflects and supports this tendency.
The dangers involved
with indulging in the emphasis on ‘Chinese characteristics’ do not only apply
to the AIDS-situation, as this article has indicated several times. By emphasizing the specific situation
of China when talking about its human rights record, China also limits its learning
experiences. The Chinese
government can refute its critics on the basis that they fail to take Chinese
characteristics into account, and foreign models for effective protection of
human rights can be effectively ignored by pointing out the different Chinese
situation. Even dialogues fail to
be fruitful when there is no willingness to acknowledge common ground.
However, it is much
easier to argue against the use of ‘AIDS with Chinese characteristics’, than it
is to fulminate against the emphasis on China’s particularities when discussing
human rights.
AIDS is a disease that
is the same in all parts of the world.
Globally, the solution is clear: eradication through treatment and
prevention. Experience inside
numerous countries with countless cultural backgrounds and differing political
and economic regimes, have shown that some methods concerning prevention and
treatment work better than others.
If China wants to reach the goal of eradication of AIDS,
country-specific measures will have to be taken, but the worldwide acquired
experiences and expertise concerning AIDS has to take up a central place.
Human Rights
undoubtedly have a global character as well. Although the Chinese Government has tended to treat human
rights as a matter of a domestic nature, the last few years have shown a
definite change in that attitude.[241] Human Rights are obviously less
tangible than AIDS however, and global solutions are much harder to express
because of the philosophical nature of human rights. The experiences of Western countries, that have been using
the concept of Human Rights for a relatively long period of time, are not that
easily transmittable to other countries and cultures. On the contrary, their role as primary advocates for Human
Rights has been overtly criticized.
The focus in the international human rights forum on Western liberal
approaches to eradicate human rights violations has been questioned; this is
also true for the universality of the concepts used inside this international
human rights forum. This also
points to the political connotations of the human rights debate, which take up
a central place in the Chinese discussions at different levels, and which also
form an obstacle to thinking in terms of global solutions.[242]
The focus on ‘Chinese
Characteristics’ seems more appropriate as such when discussing the topic of
Human Rights. The dangers of the
overt emphasis on particularity remain present however.
Recent years indicated
a new-found sensitivity inside Western States for the particularity of China’s
situation. Economical, political
and philosophical arguments all seemed to conspire for an approach away from
antagonistic criticisms, and towards cooperation and dialogue. As China is strengthening its rule of
law, is becoming increasingly active inside the international human rights forum,
is encouraging its academics to do research on human rights, and is offering
more space for a civil society, international linkages are forged at an
increasing rate and learning opportunities seem plentiful.
The real challenge is
to keep the exchanges useful. This
involves more effort and courage from Western audiences. More effort to effectively understand
what is so special about the Chinese situation and to grasp how the
transplantation of concepts like the rule of law and civil society works in
China.[243] More courage to speak out and publicly
criticize China when the use of ‘Chinese characteristics’ only serves to refute
criticisms and to avoid debates from going below the surface.[244]
i I would like to express my sincere thanks to Simone Bohnenberger-Rich, and Rebecca Imber for their invaluable help and comments.
ii Stijn Deklerck is engaged as a Research Assistant at the Flemish Fund for Scientific Research (FWO). He is writing his PhD in Legal Anthropology at the Catholic University of Leuven (Belgium), where he was engaged as a lecturer on ‘Modern Chinese Law’ during the academic year 2003-2004. Currently he is doing fieldwork in China; he is engaged as a visiting scholar at the Peking University (Beijing Daxue).
[1] Robert Weatherley, The Discourse
of Human Rights in China: Historical and Ideological Perspectives (New York: St. Martin’s Press, Inc.,
1999), p.1.
[2] Amnesty International Report 2003,
China, Covering events from January – December 2002. http://www.amnestyusa.org/annualreport/
[3] Amnesty International Report 2004,
China, Covering events from January – December 2003. http://www.amnestyusa.org/annualreport/
[4] State Council of the People’s Republic of China, Human Rights in China, Beijing: State Council of the People’s Republic of China, 1991, p. ii, p. 85. (First white paper on human rights.)
[5] See Art.8, The Bangkok Declaration, A/Conf.157/ASRM/8, A/Conf.157/PC/59, 7 April 1993. http://www.unhchr.ch/html/menu5/wcbangk.htm#I
[6]In the Vienna Declaration and Programme of Action, A/CONF.157/23, 12 July 1993, an Art. 5 was included that reflected the ongoing battle at the Conference. Universality of human rights was upheld, but some specifications were added. “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political,
economic and cultural systems, to promote and protect all human rights and fundamental freedoms.” See http://vassun.vassar.edu/~johnsong/Vienna_Declaration.html
[7] For a good overview and a literature study on the debate during the ‘90s, see BREMS, Eva, Human Rights: Universality and Diversity, International Studies in Human Rights, Volume 66, Martinus Nijhoff, 2001.
[8] In relation to China, one can see this very clearly in the changing ways several countries (including the European Union) have been engaging China in human rights debates in the last ten years. I will discuss this more profoundly further on in this article.
The changing approach to human rights in China is however not the only case to warrant such a conclusion. Changing attitudes towards Arabic countries for example seem to point to the same evolution. Without pretending to be completely informed on the matter, I just mention two instances that could illustrate the growing sensitivity for the need of cultural- and country specific measures to construct meaningful and long lasting change: the emerging of human rights projects that are clearly aimed at uniting concepts of human rights with islamic values (see for example the project ‘rights at home’ at www.isim.nl) – the arguments used by countries and individuals opposing the recent war in Iraq and the further occupation of Iraqi territory by foreign troups.
[9] I follow hereby the example of the scholars contributing to DE BARY, Wm. Theodore, TU, Weiming (eds.), Confucianism and Human Rights, New York: Columbia University Press, 1998.
[10] Art.1, Universal Declaration of
Human Rights (1948), General Assembly resolution 217 A (III), 10 December 1948. http://www.un.org/Overview/rights.html
[11] TWISS, Sumner B., “A Constructive Framework for Discussing Confucianism and Human Rights”, in DE BARY, Wm. Theodore, TU, Weiming (eds.), Confucianism and Human Rights (New York: Columbia University Press, 1998), p.28.
[12] CHING, Julia, “Human Rights: A
Valid Chinese Concept?” in DE BARY, Wm. Theodore, TU, Weiming (eds.), op.cit., pgs. 68-69; PANIKKAR, R., “Is the
Notion of Human Rights A Western Concept?”, in P. Sack, J. Alleck (eds), Law
and Anthropology (Reader),
(Aldershot, Hants Dartmouth, 1992), p.387.
[13]DE BARY, Wm. Theodore,
“Introduction”, DE BARY, Wm. Theodore, TU, Weiming (eds.), op.cit, p.6.
[14] See GERNET, Jacques, A History of Chinese Civilization, Second edition, Cambridge etc.: Cambridge University Press, 1996.
[15] WANG, Chenguang. "Introduction: An Emerging Legal System.", WANG, Chenguang, ZHANG, Xianchu (eds.), Introduction to Chinese Law, Hong Kong: Sweet en Maxwell Asia, 1997, pp. 2-3.
[16] Usually divided up further into the
the Spring and Autumn period (770-476) the period of the “Warring
States”(476-221)
[17] WANG, Chenguang. "Introduction: An Emerging Legal System.", WANG, Chenguang, ZHANG, Xianchu (eds.), Introduction to Chinese Law, Hong Kong: Sweet en Maxwell Asia, 1997, pp. 2-3.
[18] These two schools of thought have originated during the time of the Eastern Zhou, but this doesn’t mean that they have remained the same up until today. Throughout the centuries, different interpretations have been given of texts, different thinkers have put their mark on the schools,… When we discuss these two schools, we do it in very general terms. We will mostly discuss their positions at the time of their beginning.
[19] HEUSER, Robert, Einführung in die Chinesische Rechtskultur, Hamburg: IFA, 2002, p. 68.
[20] HEUSER, Robert, Einführung in die Chinesische Rechtskultur, Hamburg: IFA, 2002, pp. 68-69.
[21] Mote, F.W. Intellectual Foundations of China, Second Edition. New York: McGraw- Hill, Inc., 1989, p. 43.
[22] This can be clearly noted in the Mencius, especially in its first chapter. MENCIUS (writer), ZHAO Zhentao, ZHANG Wenting, ZHOU Dingzhi (translation to English), YANG Bojun (translation into Modern Chinese), Mencius, Hunan People’s Publishing House, Foreign Languages Press, 1999.
[23] MOTE, F.W. Intellectual Foundations of China, Second Edition. New York: McGraw- Hill, Inc., 1989, p. 44; WALEY, A. (translation), The Analects, Wordsworth Editions Limited, 1996, 13.3.
[24] CHEN, Jianfu, Chinese Law, Towards an Understanding of Chinese Law, Its Nature and Development. The Hague: Kluwer Law International, 1999, p. 9.
[25] But also in the other two relationships (especially in the brother-relationship), there is some kind of inequality. There’s always one person older and more important than the other one.
[26] HEUSER, Robert, Einführung in die Chinesische Rechtskultur, Hamburg: IFA, 2002, Chapter on traditional legal culture.
[27] Two passages of the analects can serve to illustrate this point: “If
people are led by laws, and if uniformity is sought by giving punishments out
to the people, the people will try to avoid these punishments, and they won’t
have any feeling of shame.” “If people are led by virtue, and if virtue is
sought in established morality, then they will keep their self respect, and
then people will become good.”
WALEY, A. (translation), op.cit., Juan 1, Weizheng, 2, Zhuxi.
[28] TURNER, K. "Sage Kings and Laws in the Chinese and Greek Traditions.", ROPP, P.S., Heritage of China, Berkeley: University of California Press, 1990, pp. 92 a.f.
[29] HEUSER, Robert, Einführung in die Chinesische Rechtskultur, Hamburg: IFA, 2002, Chapter on traditional legal culture.
[30] CHEN, Jianfu, op.cit., p. 10-12.
[31] CHEN, Jianfu, op.cit., p. 11.
[32] WANG, op.cit., p.4.
[33] Chinese characters, and measures of length and capacity were standardized for the whole of China. See HEUSER, Robert, op.cit., Chapter on traditional legal culture.
[34] Ibid.
[35] Under Emperor Wu (140 BC-87BC), see CHEN, Jianfu, op.cit., p. 13
[36] Term first used in T.T Ch’ü (QU, Tongzu), Law and Society in Traditional China, Paris : Mouton&Co, 1961.
[37] HEUSER, Robert, op.cit., Chapter on
traditional legal culture. Heuser
also mentions that Chinese legal culture pointed to an avoidance of conflict,
and a very pragmatic attitude of the general population towards the law. See also WANG, op.cit., p. 5 for an overview of aspects of the Chinese legal tradition.
[38] WEATHERLEY, Robert, The
Discourse of Human Rights in China, Historical and Ideological Perspectives (New York: St. Martin’s Press, Inc,
1999), p.38. As such, Confucianism
is still seen as a major cultural influence on Contemporary Chinese
Society. WEATHERLEY, Robert,
Ibid., p. 38.
[39] The view of Chinese legal culture as we have just described it, has recently been criticized as being too simplistic. We can cite for example HUANG, Ph.C.C. Civil Justice in China, Representation and Practice in the Qing. Standford: Standford University Press, 1996. In his book, Huang shows that during the Qing dynasty, an important part of the workload of courts consisted in resolving cases of civil law. Other authors also point to inadequacies in this representation of traditional Chinese legal culture, see for example LIU, Y.P., Origins of Chinese Law: Penal and Administrative Law in its Early Development, Hong Kong : Oxford Univ. Press, 1998 and AMES, R., Interpreting Culture through Translation, Hong Kong : The Chinese Univ. Press, 1991, pp. 1-36.
[40] Whereas some authors preferred to discuss Human Rights and the Chinese
culture, other authors preferred to point the attention to ‘Asian Values’ and
Human Rights. In the debates
leading up to and following the Vienna Conference, countries like Singapore
pointed to the overwhelming influence of Chinese Culture in their development,
and the common (Confucian) values shared by numerous (East) Asian
Countries. ‘Asian Values’ point as
such to the common cultural influences these countries share in their moral,
ideological and legal life. See,
amongst others, BELL, Daniel A., Human
Rights and Chinese Values: Legal, Philosophical, and Political Perspectives, Oxford University Press, 1995; BRUUN, Ole,
JACOBSEN, Michael, Human Rights and Asian Values: contesting national
identities and cultural representations in Asia, London: Curzon, 2000; DE BARY, Wm. Theodore,
TU Weiming (eds.), Confucianism and human rights, New York: Columbia University Press, 1998; DE
BARY, Wm. Theodore, Asian Values and human rights: a Confucian communitarian
perspective, Cambridge
(Mass.): Harvard University Press,1998; GREGOR, Paul, ROBERTSON-WENSAUER (Hrsg.) Caroline
Y., Traditionelle chinesische Kultur und Menschenrechtsfrage, Nomos Kulturwissenschaft, 1995; MEIJER, M. (red.), Grondrecht en
wisselgeld – Aziatische en westerse visies op de waarde van de rechten van de
mens, Greber uitgever en distributeur / Humanistisch
Overleg Mensenrechten, 1998; WEATHERLEY, Robert, The Discourse of Human Rights in China: Historical
and Ideological Perspectives, New York: St. Martin’s Press Inc., 1999.
On the Chinese
Mainland, this topic received an increasing amount of attention as well, a
development which I will discuss later on in this article. See, for an illustration, XIA, Yong
(ed.), Public law, Volume 1, Falu chubanshe, 1999 (Subject discussion:
Chinese Culture and Human Rights); XIA, Yong, The origin of the concept of
human rights – history of the philosophy of rights, Zhongguo zhengfa daxue chubanshe, 1992
(2001).
[41] Considering the role Confucianism played in shaping moral, social and legal life throughout the Imperial Times in China (and by extension in surrounding countries sharing large parts of the Chinese cultural background), this comes as no surprise. See supra, notes 38, 40.
[42] I refer here to the concept of Human Rights as defined above, supra p. 3.
[43] In the Tang Dynasty for example, it was accepted that only officials
had access to the law. See HEUSER,
Robert, Einführung in die Chinesische Rechtskultur, Hamburg: IFA, 2002, p. 121,
who refers to BUNGER, Karl, “Uber die Verantwortlichkeit der Beamten nach klassischem
chinesischen Recht”, in: Studio Serica, Bd. VI (1947), p. 159 e.v. ; and to STEENSTRUP,
Carl, A history of law in Japan until 1868, London etc., 1991, p. 120.
In general, the state detested what we would call ‘lawyers’. They were seen as ‘pettifoggers’,
instigating people to start litigation.
See MACAULEY,
M.A., Social Power and Legal Culture: Litigation Masters in Late Imperial
China, Stanford: Standford University Press, 1998; and MACAULEY, M.A.
, "Civil and Uncivil Disputes in Southeast Coastal China, 1723-1820,"
in BERNARDT, K., HUANG, Ph. C.C. (eds.), Civil Law in Qing and Republican
China, Stanford: Standford University Press, 1994.
[44] See for example ROSEMONT Jr., Henry, “Human Rights: A Bill of Worries” in DE BARY, Wm., Theodore, TU, Weiming (eds.), Confucianism and Human Rights, New York: Columbia University Press, 1998; and ROSEMONT Jr., Henry, “Why Take Rights Seriously?: A Confucian Critique”, in ROUNER, Leroy (ed), Human Rights and the World’s Religions, Indiana: University of Notre Dame Press, 1988.
[45] Following for example a theory emphasizing the correlation of rights
and duties. See for example WANG,
Gungwu, “Power, Rights and Duties in Chinese History”, Australian Journal of
Chinese Affairs, 3, (1980), p.6. See also
CHAN, J.: "A Confucian Perspective on Human Rights for Contemporary
China", in BAUER, J.R., BELL, D.A. (ed.), The East Asian Challenge for
Human Rights, Cambridge University Press, 1999.
[46] DE BARY, Wm., Theodore,
“Introduction”, in DE BARY, Wm., Theodore, TU, Weiming (eds.), op.cit., p.6.
[47] Different authors point to essential values, like respect, compassion, human flourishing, equal moral opportunity,… See, amongst others, BLOOM, Irene, “Fundamental Institutions and Consensus Statements: Mencian Confucianism and Human Rights”, in DE BARY, Wm., Theodore, TU, Weiming (eds.), op.cit ; CHANG, Wejen, “Confucian Theory of Norms and Human Rights”, in DE BARY, Wm., Theodore, TU, Weiming (eds.), op.cit ; CHING, Julia, “Human Rights: A Valid Chinese Concept?”, in DE BARY, Wm., Theodore, TU, Weiming (eds.), op.cit.; XIA, Yong, The origin of the concept of human rights – history of the philosophy of rights, Zhongguo zhengfa daxue chubanshe, 1992 (2001);…
[48] As such, adopting a similar framework provides for a way out of antagonistic universalism/relativism stances. Brems adopts a framework of ‘inclusive universalism’ to give a proper place to specificities of different cultural traditions when implementing human rights. See BREMS, Eva, Human Rights: Universality and Diversity, International Studies in Human Rights, Volume 66, Martinus Nijhoff, 2001. Other examples envisioning similar frameworks include TWISS, Sumner B., “A Constructive Framework for Discussing Confucianism and Human Rights”, in DE BARY, Wm., Theodore, TU, Weiming (eds.), op.cit
[49] Marina Svensson, “The Chinese Conception of
Human Rights – The Debate on Human Rights in China, 1898-1949”, Lund, Sweden:
Department of East-Asian languages Lund University 1996, p.89. This is also the view of WANG, Ermin,
“Zhongguo jindai zhi renquan juexing”, Xianggang zhongwen daxue zhongguo
wenhua yanjiusuo xuebao
(Magazine of the China Research Center of the Chinese University of HongKong),
nr.14, 1983, pp.67-83
[50] In his “General Laws”, Martin translated “human rights in general” as ‘Shijie renmen de ziranquan’ (literally: the natural rights of the people of the world). See MARTIN, W.A.P., Wangguo gongfa, Beijing 1864, vol.1, p.9b. See SVENSSON, Marina, ANGLE, Stephen C. (eds.), The Chinese human rights reader: documents and commentary, 1900-2000, New York: M.E. Sharpe Inc., 2001, pp. xviii-xix.
[51] CHEN, J., "Coming Full Circle: Law Making in the Prc from a Historical Perspective," OTTO, J.M. et al. (eds.), Law-Making in the People's Republic of China, New York: Kluwer Law International, 2000, p. 20.
[52] These are exemplified by the the Taiping rebellion (1851-1864), and the Boxer Rebellion (1900).
[53] China had to acknowledge defeat against Japan in 1895. During the Opium Wars between China and a few Western superpowers (like England and France), China had to acknowledge defeat as well.
[54] Most clearly exemplified in the 100 days of reform in 1898, ended by empress Ci Xi. See SPENCE, J.D., The Search for Modern China, New York: Norton, 1990, 229-230.
[55] CHEN, J., "Coming Full Circle: Law Making in the Prc from a Historical Perspective," in OTTO, J.M. et al. (eds.), Law-Making in the People's Republic of China, New York: Kluwer Law International, 2000, p. 20.
[56] See SVENSSON, Marina, ANGLE, Stephen C. (eds.), The Chinese human rights reader: documents and commentary, 1900-2000, New York: M.E. Sharpe Inc., 2001. The texts assembled in the reader that relate to periods 1900-1911 / 1914-1926 clearly illustrate this tendency among Chinese scholars focusing on human rights. See http://www.chinesehumanrightsreader.org/reader/toc1.html
[57] Ibid.
[58] See SVENSSON, Marina, ANGLE, Stephen C. (eds.), op.cit. See periods 1927-1937 / 1937 – 1949.
[59] See SVENSSON, Marina, ANGLE, Stephen C. (eds.), op.cit., p. xx.
[60] See supra.
[61] KENT, Ann, China, the United Nations, and Human Rights: The Limits of Compliance, University of Pennsylvania Press, 1999, pp. 40-41.
[62] HEILMANN, Sebastian, “China, der Westen und die Menschenrechte“, CHINA aktuell, 23 (1994), p. 148.
[63] Ibid., p. 41. Probably this was also due to the fact that not that much was known at that time about the situation inside China.
[64] PLASSCHAERT,
S., Wie is bang van China?, Leuven: Davidsfonds, 2001, p.74.
[65] The four modernizations (sige xiandaihua) consisted of development of agriculture, industry, national defence, and science and technology. Opening up to the West was seen as essential to achieve these modernizations. See SPENCE, J.D., The Search for Modern China, New York: W.W. Norton & Company, 1999, p. A 52.
[66] Cfr. The ‘two hands policy’ of Deng XiaoPing: law and economy as the main factors in building up socialist modernization. See CHEN, Jianfu, Chinese Law, Towards an Understanding of Chinese Law, Its Nature and Development, op.cit., p. 40.
[67] CPC CENTRAL COMMITTEE, Selected Important Party Documents (Volume 1) Since 1978, Beijing: Central Documents Press, 1997, p.26.
[68] MULLER, Sven, Konzeptionen der Menschenrechte im China des 20. Jahrhunderts, Mitteilungen des Instituts für Asienkunde, Nr. 274, Hamburg, 1997, p. 153.
[69] The Constitution of 1982 is still in place today, after amendments in 1988, 1993, 1999 and 2004.
[70] Numerous articles of the Constitution still pointed to an obvious difference with Western constitutions providing all-out protection for human rights. The exercise of rights and freedoms was (and still is) explicitly subordinated to the interests of the state, the society and the collective (article 51), and the word ‘human rights’ wasn’t mentioned anywhere in the constitution. This signals that the ‘rights’ weren’t seen as something ‘innate’, or ‘natural’. They were granted by the state, and were linked to duties of the individual towards the society.
[71] These 3 basic treaties are: the convention against torture and other cruel, inhuman or degrading treatment or punishment (ratified in 1988), the convention on the elimination of all forms of discrimination against women (ratified in 1980) and the international convention on the elimination of all forms of racial discrimination (accessed in 1981).
[72] WAN, Ming, “Human rights and Sino-US relations: policies and changing
realities“, Pacific Review 10 (1997), p. 238 and following.
[73] The US for example supported at the same time the membership of China in international economic organisations like the World Bank and the IMF.
[74] See SPENCE, J.D., op.cit., p. A 64.
[75] On the consequences of the Tiananmen incident and the dilemma surrounding the right confrontation of China on the level of human rights, see: GU, Xuewu, “Druck bewirkt nichts. Warum Sanktionen gegen China kaum Aussicht auf Erfolg hätten.”, in Der Uberblick, Volume 32, Book 2, 1996, pp. 36-38; and HILTON, Isabell, “Angstlich nutzt am wenigsten. China spielt die Handelsinteressen Europas und Amerikas gegeneinander aus”, in Der Uberblick, Volume 32, Book 2, pp. 39-42.
[76] European Council, EU Declaration on China, Madrid 26-27 June 1989. Also HILTON, Isabell, op.cit., p. 37.
[77] The US emphasized the arms embargo, and every year the most-favoured-nation status of China would be reviewed in light of the human rights situation. See SONG, Wen, “Cold War Ban Thaws”, Beijing Review, Vol. 47, No. 8, Feb. 26 2004, pp. 44-45; “With the Pace of the Times”, Beijing Review, Vol. 47, No. 1, Jan. 1 2004, pp. 21-22.
[78] See for example published excerpts of Deng Xiaoping’s talk with Trudeau (former Prime Minister of Canada) on July 11, 1990, “China will never allow other countries to interfere in its internal affairs”, at http://www.humanrights-china.org/documents/DengX200197153242.htm.
[79] See for example “With the Pace of the Times”, Beijing Review, Vol. 47, No. 1, Jan. 1 2004, pp. 21-22; ZENG, Huaqun, “The Major Developments of China-EU Economic Relations”, at http://www.twlcic.com/cm/icm2/sinoeuro.html
[80] See SVENSSON, Marina, Debating human rights in
China – A Conceptual and Political History,
Lanham: Rowman
and Littlefield Publishers, 2002, p. 261 and following.
[81] This white paper, and the white papers following this one, can be consulted at http://www.humanrights-china.org/index.asp
[82] See the introduction of this paper.
[83] For an excellent study of this ‘identity crisis’, see DITTMER, Lowell, KIM, Samuel, China’s Quest for National Identity, Ithaca N.Y.: Cornell University Press, 1993.
[84] Further termed the theory of ‘Human Rights with Chinese characteristics’.
[85] All white papers can be consulted at http://www.humanrights-china.org/index.asp
[86] I will further elaborate on the role of scholars in the rest of this article. Suffice to say over here that numerous universities set up their own human rights research center (Peking University, Fudan University, Hunan University, the Chinese Academy of Social Sciences,...), all with their own research and publications. The attention for human rights in the curriculum of students is more recent. Foreign institutions, like the Raoul Wallenberg Institute (Sweden), have been instrumental in the translation of international human rights instruments, and in the incorporation of human rights law in university curricula. In 2002, I participated as a foreign student in the mastercourse ‘Special Questions of Human Rights Law’, which was then organized for the second time at the Peking University. From September 2003 onwards, the Peking University has a master program focusing exclusively on Human Rights (built up in cooperation with foreign institutions).
[87] I will discuss the arguments used by the Chinese government further on in the article.
[88] On China’s arguments convincing developing countries, see WAN, Ming, op.cit., pp. 245 – 247. See following
articles for a discussion of the politics of developing countries in the UN
human rights regime: “China's Viewpoints on Human Rights Widely Supported by
Developing Nations: Official”, English People’s Daily, February 11, 2002 at http://english.peopledaily.com.cn/200202/11/eng20020211_90294.shtml;
“Relations Between China and The UN Human Rights Mechanism”, Permanent
Mission of the PRC to the UN at Geneva and other international organizations in
Switzerland, at http://www.china-un.ch/eng/5147.html; “UN Commission on Human Rights
concludes 60th session”, China View, April 24, 2004
at http://news.xinhuanet.com/english/2004-04/24/content_1437764.htm;
“Government Tactics Undermine UN Human Rights Commission”, ICJ Legal
Resource Center, April 22, 2004 at http://www.icj.org/news.php3?id_article=3311&lang=en.
[89] WAN, Ming, op.cit., p. 240
[90] WAN, Ming, op.cit., p. 248 f.
[91] See “Justice prevails in defeating yet another anti-China motion”, China View, April 16, 2004 at http://news.xinhuanet.com/english/2004-04/16/content_1424583.htm
[92] See http://europa.eu.int/comm/external_relations/china/intro/ for an overview of the EU’s relations with China.
[93] See EUROPEAN COMMISSION, “A maturing partnership-shared interests and challenges in EU-China relations.”, policy paper endorsed by the EU on 13 October 2003, p. 9. at http://europa.eu.int/comm/external_relations/china/com_03_533/com_533_en.pdf.
[94] This dialogue was interrupted by China in 1997, and resumed afterwards in full form. I will discuss this interruption later on. See http://europa.eu.int/comm/external_relations/china/intro/. Note that other sources trace the beginning of the dialogue process to 1994, when the EU and China entered into the expert level Dialogue on Human Rights. See http://www.eu2004.ie/templates/news.asp?sNavlocator=66&list_id=333. Other sources still trace the beginning to 1995, see http://www.delchn.cec.eu.int/en/Political/Human_Rights.htm
[95] Such as the death penalty, re-education through labor, ethnic minorities’ rights, civil and political freedoms, individual cases, etc.
[100] For a complete overview of EU-China cooperation projects, see EUROPEAN COMMISSION, op.cit. footnote 93, p. 31. An insightful graphique of the Dialogue system can be found at p. 27.
[101] See infra, p.28.
[103] See KING, Toby, “Human Rights in European Foreign Policy: Success or Failure for Post-modern Diplomacy?”, EJIL, Vol. 10, 1999, p. 327, who refers to PATTEN, Christopher, East and West: China, Power and the Future of Asia, New York: Times Books/Random House, 1998, p. 304.
[104] KING, Toby, op.cit., p. 327, who refers to ‘EU Divided on China Policy’, The Guardian, 5 April 1997, p. 15.
[105] Ibid., referring to ‘China Punishes EU Small Fry’, The Guardian, 19 April 1997, p. 16.
[106] See http://europa.eu.int/comm/external_relations/china/intro/. The dialogue was taken up again at the end of 1997.
[107] KING, Toby, op.cit., p. 327 referring to Bulletin 1/2/1998, at para. 1.4.126.
[108] Other sanctions were lifted very quickly. In October 1990, it was announced that the Member States had decided that relations with China would be ‘progressively normalised’. See KING, Toby, op.cit., p. 323, referring to EUROPEAN COMMISSION, General Report on the activities of the European Communities in 1990, at para. 745. At the end of 1994, the EU announced the removal of all sanctions against China except in arms sale. See EMBASSY OF THE PRC IN THE UK AND NORTHERN IRELAND, Review of China-EU Political Relations, at http://www.chinese-embassy.org.uk/eng/wjzc/t27065.htm.
[109] See, for just some of the news stories, STURM, Peter, “Pragmatic Politics”, F.A.Z. Weekly, 7 May 2004 at http://yaleglobal.yale.edu/display.article?id=3821; GOODENOUGH, Patrick, “Britain reportedly wavering over China arms embargo”, CNSNews.com, June 02, 2004. at http://www.cnsnews.com/ViewForeignBureaus.asp?Page=%5CForeignBureaus%5Carchive%5C200406%5CFOR20040602c.html; “France urges end to ‘outdated’ EU arms ban on China”, The Tocqueville Connection, 26 January 2004 at http://www.ttc.org/cgi-binloc/searchTTC.cgi?displayZop+15057.
[110] Coincidence or not, France – the initial promotor of the lifting of the arms ban – signed another Airbus deal with China in June 2004. See ‘France, China sign Airbus, satellite deals during vice-premier’s visit’, AFP, 12 June 2004.
[111] Cfr. Invitation of UN Special Rapporteur on Religious Intolerance in
1994, invitation of UN Working Group on Arbitrary Detention in 1996, invitation
of UN High Commissioner on Human Rights in 1998,... More
recently, since September 2003, China has sent invitations to three Special
Rapporteurs (amongst which the Special Rapporteur on torture of the UN
Commission on Human Rights) as well as the high commissioner for human rights.
[112] Not only the EU forms a Human Rights dialogue partner of China. Individual countries of the EU (Germany, Denmark, Sweden,...) and other countries (Canada, Australia, the US,...) also set up human rights dialogue forums with China.
[113] For example, the review of China’s ‘most-favored-nation’ status in the US before 1994 would almost always coincide with the freeing of high-profile dissidents.
[114] Kent gives an excellent description of the evolution of China’s attitude inside of the UN during the 1990s. KENT, Ann, China, the United Nations, and Human Rights: The Limits of Compliance, University of Pennsylvania Press, 1999.
[115] The position of China in the UN Security Council might be cited as another way of exercing pressure. See WAN, Ming, op.cit., p. 240 a.f.
[116] Illustrated by the demarche in 1997, see supra p. 18/19.
[117] As such the dialogues have also been widely criticized by foreign scholars and NGOs. Critiques mostly tend to describe the dialogues as ‘theatre’, unable to bring any effective reforms. See for description and numerous critiques on the dialogue model: www.chinesehumanrightsreader.org. For a well-versed critical account on the EU-China human rights dialogue, see http://www.fidh.org/IMG/pdf/cn2502a.pdf (report submitted by the International Federation of Human Rights and Human Rights in China)
[118] A very insightful example are the reports China has been drawing up since 2000 on the human rights situation inside the United States. These reports counter critical US-reports on the situation in China, and do make increasingly more sense in the present global context. The reports can be consulted at http://www.humanrights-china.org/index.asp
[119] State Council of the People’s Republic of China, Human Rights in China, Beijing: State Council of the People’s Republic of China, 1991, p. ii, p. 85.
[120] Article 2, Section 1, UN Charter
[121] Article 2, Section 7, UN Charter
[122] In the 1991 White Paper, the sovereignty argument is immediately followed by the relativistic argument cited above (“A country’s human rights situation cannot be judged in total disregard of its historical and national conditions, nor can it be evaluated according to the preconceived model or standard of another country or region.”). See footnotes 4, 119.
[123] KENT, Ann, op.cit., pp. 40-45.
[124] See for example published excerpts of Deng Xiaoping’s talk with Trudeau (former Prime Minister of Canada) on July 11, 1990, “China will never allow other countries to interfere in its internal affairs”, at http://www.humanrights-china.org/documents/DengX200197153242.htm.
[125] See for example INFORMATION OFFICE OF THE STATE COUNCIL PRC, A Report Which Distorts Facts and Confuses Right and Wrong- On the part about China in the 1994 “Human Rights Report” issued by the US State Department, at http://www.humanrights-china.org/whitepapers/white_u01.htm; and INFORMATION OFFICE OF THE STATE COUNCIL PRC, Another Act of Creating Confrontation by Using the Pretext of Human Rights – Comments on the “China” Part of “Human Rights Report” of the US State Department for 1996, at http://www.humanrights-china.org/whitepapers/white_u02.htm.
[126] See the White Papers published by the Chinese government on the Human Rights Record of the US, at http://www.humanrights-china.org/whitepapers/menu_w.htm.
[127] To be complete on this matter, one should also discuss the Chinese views on the sovereignty principle, which do defer from Western views, as they are linked up with historical notions of chaos caused by western powers during the 18th century. The sovereignty-norm is for China also linked up with the development-discourse that I will discuss further on. For a beginning of a more complete and balanced overview of changing conceptions of the sovereignty norm and the principle of non-interference in China, see CARLSON, Allen, “Protecting Sovereignty, Accepting Intervention: The Dilemma of chinese Foreign Relations in the 1990s”, September 2002, at http://www.ncuscr.org/Publications/China_Policy_series.htm.
[128] MULLER, Sven, op.cit., p. 155. Müller indicates that Natural Law conceptions aren’t accepted. He indicates that the Marxist view has the greatest influence, in which people are not born with human rights / human rights don’t exist before the state.
[129] Constitution of the PRC, article 33, pa. 3. Translation by Chinalawinfo co., Ltd.
[130] In the White Papers published after 1991, the account on the progress of the right to subsistence always took up the primary spot.
[131] This is also reflected in the fact that China ratified the International Covenant on Social, Economic and Cultural Rights, but only signed the International Covenant on Civil and Political Rights.
[132] It is this developmentalist approach that has gained China the support of developing countries, see supra footnote 87. In the process, China doesn’t shy away from blaming developed countries for their limited understanding of the plight of developing countries. This is where the accent on the sovereignty norm and the principle of non-interference gets a new touch: these principles have to be used by developing countries to defend themselves from extensive intervention by developed countries. See supra note 124.
[133] Translation by Chinalawinfo co., Ltd.
[134] This in the debate on Asian Values, see supra note 40.
[135] Constitution of the PRC, article 33, pa. 4. Translation by Chinalawinfo co., Ltd.
[136] Including the duty to safeguard the unification of the country (article 52), the duty to keep state secrets and respect social ethics(article 53).
[137] See for example article 42, which says that citizens have a right as well as a duty to work.
[138] During the relatively relaxed and optimist political atmosphere of 1978, culminating with the important Third Plenum of the Eleventh Central Committee (see supra p. 13), Chinese citizens were inspired and encouraged to gather at a wall in central Beijing (later known as the Democracy Wall) to put up big-character posters and debate the political issues of the day. The content of the posters ranged from accounts of personal grievances and persecutions, to more general demands for democracy, law and order, and respect for human rights. These writings were in many cases also gathered in different magazines that were put out around the country. In the spring of 1979, the crackdown on the democracy movement began, and lots of people were arrested. See SVENSSON, M., ANGLE, S., op.cit., at http://www.chinesehumanrightsreader.org/reader/intros/39.html.
[139] Ibid., at http://www.chinesehumanrightsreader.org/reader/intros/46.html Svensson and Angle refer to the official statements in support of the Universal Declaration of Human Rights on the occasion of its 40th anniversary.
[140] See supra, p. 15.
[141] SVENSSON, Marina, Debating human rights in China –
A Conceptual and Political History, Lanham: Rowman and Littlefield Publishers, 2002, p.
269 and following.
[142] The use of this classification was suggested to me by one of my Chinese law professors, in a personal communication. Although the professor advised me to apply the classification on Chinese researchers, I prefer to apply the classification on their works. The classification is rather crude, and is for indicative purposes only.
[143]The viewpoints and articles found at http://www.humanrights-china.org/index.asp can be cited as an example. The English edition of this website was launched in December 2001, by the ‘China Society for Human Rights Studies’. The website contains a link to a number of scholars’ views, which clearly reflect the position of the government on human rights issues as described previously. The ‘China Society for Human Rights Studies’ also started with the publishing of a magazine in February 2002, entitled “Human Rights”, containing similar viewpoints.
[144] These works are many, and it would be impossible to give a complete overview of the literature in this article. A lot of the works issued by the new-built human rights centres attached to universities (see supra note 86) can be classified as falling under this category.
[145] Works here are few. One
illustrous example is XIA, Yong (ed.), Toward An Age of
Rights – A Perspective of the Civil Rights Development in China (Zou xiang
quanli de shidai – zhongguo gongmin quanli fazhan yanjiu), Zhongguo zhengfa daxue chubanshe, 1999. In this category, it is also useful to
mention the new growing of ‘action research’ inside the Chinese academic
community. Scholarship in China
does not have a well-established tradition of independence, and it remains
hampered by limited availability of research grants to fund work in areas that
are not regarded by government as priorities. Despite this, recent years have seen a steady increase in
the range and penetration of topics addressed by researchers (who are often
funded by international development agencies). YOUNG, Nick, “Searching for Civil Society”, in CHINA DEVELOPMENT
BRIEF, 250 Chinese NGOs – Civil society in the making; A special report form
China Development Brief, Beijing:
China Development Brief, August 2001, p. 12.
[146] The same conclusion is reached in WOODMAN, Sophia, “Words Obscure Actions: Human Rights Research in China”, GSC Quarterly, fall 2002, at http://www.ssrc.org/programs/gsc/gsc_quarterly/newsletter6/
[147] This is clearly reflected in the book of XIA Yong mentioned before.
[148] An excellent work in this regard is XIA, Yong, The origin of the concept of human rights – history of the philosophy of rights (renquan gainian qiyuan – quanli de lishi zhexue), Zhongguo zhengfa daxue chubanshe, 1992 (2001). The work explores human rights theories from social and cultural perspectives and demonstrates strongly a typical Chinese discourse of rights philosophy. It proves that the Chinese cultural heritage can be a fertile soil for rights discourses, and that a connection with more Western views on rights is possible. Books on human rights often start with a (short) exploration of the philosophical roots of the concept of human rights, in which a distinction is often made between foreign and Chinese ideas. See, among others, WANG, Jiafu, LIU, Hainian, LI, Lin (eds.), Human rights and the 21st century (Renquan yu 21 shiji), Zhongguo fazhi chubanshe, 2000; WANG, Qifu, LIU, Jinguo, Jurisprudential research on human rights problems (Renquan wenti de falixue yanjiu), zhongguo zhengfa daxue chubanshe, 2003; ...
[149] A lot of more general books on human rights also start with a history of human rights in China, ranging from classical government presentations to more in depth research on Chinese thinkers. See, among others, LIU, Yongping, LI, Helin, WANG, Yanfeng, Chinese human rights thinking in the 20th century(20 shiji zhongguo de renquan sixiang), Jingji kexue chubanshe, 2000; XIAO, Jiabao, LIU, Yingqi, 100 years of China’s human rights (Zhongguo bai nian renquan shi), Liaoning renmin chubanshe, 1994; ...
[150] Most of the time these books present a very theoretical overview of
the right(s) in question.
International theories are mentioned, but are not applied to China. See, among others, ZHEN, Shuqing, On freedom of expression (Lun
biaoda ziyou), Shehuikexue
wenjian chubanshe, 2000; XU, Xianming (ed.), Human Rights research, Volume
1(Renquan yanjiu – di yi juan),
Shandong renmin chubanshe, 2001 (containing essays researching different parts
of the rights concept – different human rights); BAI, Guimei, Self-determination
in international law (guojifa shang de zijue), Zhongguo huaqiao chubanshe, 1999; ...
[151] In most books on human rights, some mention or other is made of the
rule of law. There are also
numerous books that focus more precisely on (a part of) the rule of law and
human rights. See, among others,
CHEN, Yunsheng, To reverse torture – the rule of law and the protection of
human rights in present-day China (Fan kuxing –
dangdai zhongguo de fazhi he renquan baohu),
Shehuikexue wenjian chubanshe, 2000;
LIU, Junhai, LI, Zhong (eds.), Hot topics on constitutionalism and
human rights in present-day China (Zhongguo dangdai xianzheng yu renquan
redian), Kunlun chubanshe, 2001. The linking of the rule of law and
human rights is very popular in cooperation projects established between
Chinese and Foreign researchers. I
will talk more on this later on.
See, among others, LIU, Hainian, LI, Lin, KJAERUM, Morten
(eds.), Human Rights and Administration of Justice – Collected papers from
the Chinese-Danish Symposium on the Protection of Human Rights in Judicial Work
(Renquan yu sifa, zhongguo – danmai sifa zhong de renquan baozhang xueshu
yanjiuhui wenjian), Zhongguo
fazhi chubanshe, 1999; BAI, Guimei et al. (ed.), Human rights problems
through the eyes of the rule of law (fazhi shiye xia de renquan wenti), Beijing daxue chubanshe, 2003.
[152] A book such as ZHU, Suli, Deliver the law to the countryside – research concerning the basic level of the judicial system in China (Song fa xia xiang – zhongguo jiceng sifa zhidu yanjiu), Zhongguo zhengfa daxue chubanshe, 2000, concentrating on a couple of experiences with judicial organs in the countryside, says a lot more about the concrete situation of judicial independence in China than the theoretical discussions on the judicial system and human rights mentioned above.
[153] See WOODMAN, Sophia, “Words Obscure Actions: Human Rights Research in China”, GSC Quarterly, fall 2002, at http://www.ssrc.org/programs/gsc/gsc_quarterly/newsletter6/ for a concurrent opinion.
[154] The arrest of ‘internet dissidents’ has been extensively reported upon. See, for an example, “China detains Internet essayist for subversion”, 31 October 2003, at http://in.tech.yahoo.com/031031/137/290g6.html
[155] See WOODMAN, Sophia, “Words Obscure Actions: Human Rights Research in China”, GSC Quarterly, fall 2002, at http://www.ssrc.org/programs/gsc/gsc_quarterly/newsletter6/
[156] See supra footnote 100 for an example: the EU-China cooperation projects.
[157] Exceptions include “EU-China human rights dialogue (Death Penalty; Ratification and Implementation of UN Covenants)”, Lisbon 8-9 May 2000, at http://www.fd.unl.pt/web/investigacao/ wpapers/pdf/2002/wp001-02.pdf ; LIU, Hainian (ed.), Research on “the International Covenant on Economic, Social and Cultural Rights” – Collected papers from the Chinese-Norwegian Symposium on the research of international covenants, Zhongguo fazhi chubanshe, 2000; LIU, Hainian, LI, Lin, KJAERUM, Morten (eds.), op.cit., note 151.
[158] See WOODMAN, Sophia, op.cit.
[159] As there is not much information made public about the dialogues and the seminars, my research about this topic has been limited to talking to participants. All of the people I talked to stressed the private nature of their comments on these dialogues. For a similar experience, see WOODMAN, Sophia, op.cit.
[160]
See WOODMAN, Sophia, op.cit.; HUMAN RIGHTS IN CHINA, “The
Dialogue Debate: a strategy for advancing human rights or a way of evading
responsibility?”, China Rights Forum, Fall
1997, pp.30-33; HUMAN RIGHTS IN CHINA, “From Principle to Pragmatism: Can
dialogue improve China’s human rights situation?”, China Rights Forum,
Summer 1998, pp.10-19; KENT A., “Form over Substance: the Australia-China
bilateral human rights dialogue”, China Rights Forum,
Fall 1999, pp.30-33, p.46.
[161] This general tendency can be for example noticed in the policies of the EU towards China. Apart from basic treaties of the EU, and EU declarations on human rights and democratisation - an overview of which can be found at http://europa.eu.int/comm/external_relations/human_rights/intro/index.htm - that point towards a definite connection between democracy, the rule of law, and respect for human rights, one can discern this tendency in more China-specific documents. See for example EUROPEAN COMMISSION, “A maturing partnership-shared interests and challenges in EU-China relations.”, policy paper endorsed by the EU on 13 October 2003, at http://europa.eu.int/comm/external_relations/china/com_03_533/com_533_en.pdf, and the list of cooperation programs cited on p. 32.
[162] I largely follow the reasoning of PEERENBOOM, Randall, China’s Long March toward Rule of Law, Cambridge: Cambridge University Press, 2002.
[163] Cfr. Supra p. 13
[164] ZHANG, Qi, “The dynamics from the ideal to the reality - the rule of law in China.”, Chinese Social Science, Vol. 2, 2002, who refers to Fazhi yu renzhi wenti taolun ji [Collected Essays on The Rule of Law and the Rule of Man], Mass Press, 1981.
[165] See CHEN, Jianfu, Chinese Law, Towards an Understanding of Chinese Law, Its Nature and Development. The Hague: Kluwer Law International, 1999, p. 41.
[166] Ibid., p. 42.
[167] Ibid., pp. 42-43.
[168] Constitution of the PRC, article 5. Translation by Chinalawinfo co., ltd.
[169] CHEN, Jianfu, op.cit., p. 45.
[170] This critique was mostly aimed at the large control of the state over the economic sphere. There should be more separation of public and private, state and enterprise.
[171] Which pointed to the fact that the law was nothing more than an instrument in the hands of the leadership.
[172] Pointing to a legal system with a full power position, able to support the stability and predictability needed for a market economy and an effective opening towards foreign investors and international organizations such as the WTO.
[173] Ibid., referring to Beijing Review, Vol. 40, No. 40, 1997, p. 23-24.
[174] The legal bird has not yet ‘flown its cage’, as Lubman indicates in the title of his excellent work. LUBMAN, Stanley, Bird in a cage. Legal reform in China after Mao., California: Stanford University Press, 1999. See also PEERENBOOM, Randall, China’s Long March toward Rule of Law, Cambridge: Cambridge University Press, 2002, p. 559, who sums up a few reasons for the dominant pessimist views regarding the legal system in China.
[175] I don’t integrate economic legislation here.
[176] The draft of the civil code has been submitted to the National People’s Congress. See EUROPEAN COMMISSION, “A maturing partnership-shared interests and challenges in EU-China relations.”, policy paper endorsed by the EU on 13 October 2003, p.12 http://europa.eu.int/comm/external_relations/china/com_03_533/com_533_en.pdf.
[177] Just as one might too easily assume that the concept of human rights as developed in the West can be applied universally.
[178] This distinction is used throughout the book of Peerenboom. For a more extensive explanation on
thin and thick theories, see PEERENBOOM, op.cit.
[179] Ibid., p. 558.
[180] Ibid.
[181] Ibid.
[182] From the early 1980s onwards, changes in Central and Eastern European countries revamped the term ‘civil society’. NGOs, such as ‘Solidarity’ in Poland, were at the forefront of democratic change. This resurrected discussions surrounding the importance of ‘civil society’, and strengthened the association between (liberal) democracy and the ‘civil society’. See BARON, F. Barnett, “International Conference in Beijing hails emergence of Chinese NGOs”, Alliance, Vol. 4 No. 4, December 1999.
[183] See BARON, F. Barnett, “International Conference in Beijing hails emergence of Chinese NGOs”, Alliance, Vol. 4 No. 4, December 1999.
[184] These current Western assumptions that the concept of civil society invokes are discussed in BROOK, Timothy, FROLIC, B. Michael, “Introduction. The ambiguous challenge of civil society.”, in BROOK, Timothy, FROLIC, B. Michael (eds.), Civil Society in China, New York and London: M.E. Sharpe, 1997, p. 3 f.
[185] See BARON, F. Barnett, “International Conference in Beijing hails emergence of Chinese NGOs”, Alliance, Vol. 4 No. 4, December 1999.
[186] I use the Chinese term of ‘shehui liliang’ or ‘social forces’, as this
term is wide and can integrate the different types of organizations rising up
inside the Chinese ‘civil society’.
The term ‘shehui liliang’ doesn’t distinguish between commercial and
non-profit activity. The term is
often used by the Chinese government, and appears as such also in YOUNG, Nick, “Searching for Civil Society”, in
CHINA DEVELOPMENT BRIEF, 250 Chinese NGOs – Civil society in the making; A
special report from China Development Brief, Beijing: China Development Brief, August 2001, p. 12. Further on, I will
mark clearly when referring to non-profit activity.
[187] For a brief overview of ‘NGOs’ in the period from 1949 to 1978, see ZHANG, Ye, “China’s Emerging Civil Society”, CNAPS Working Paper, August 2003, pp. 6-9 at http://www.brook.edu/fp/cnaps/papers/ye2003.htm
[188] Ibid., p. 10
[189] Ibid., p. 11
[190] Ibid., p. 11
[191] YOUNG, Nick, op.cit., p. 12 Young points to the fracturing of the ‘iron rice bowl’, the fact that China’s taxation system has not yet been adequately restructured to match the needs of the restructured economy, and the fact that the demand for many kinds of service is set to grow steeply (due to demographic change, raised aspirations of the new middle class in China, new sources of social stress and problems, and a surge in demand for improved environmental amenities and quality of life).
[192] Ibid., p. 13.
[193] Including the systematization of cost recovery mechanisms, on the ‘user pays’ principle, across existing service provisions – notably in health and education. See YOUNG, Nick, op.cit., p. 12
[194] Caution is required when reading this classification. It is fairly simplistic, because it
focuses itself on legal realities for Chinese organizations, and doesn’t say
anything about the amount of effective freedom these organizations have
vis-à-vis the government.
Inspiration for this classification comes from older studies of China’s
civil society. See WHITE, Gordon, HOWELL, Jude, SHANG Xiaoyuan, In
Search of Civil Society: Market Reform and Social Change in Contemporary China,
Oxford: Clarendon Press, 1996;
HOWELL, Jude, “Refashioning State-Society Relations in China”, LIN, Chun (ed.),
China, Ashgate, 2000, pp.
61-82.
[195] YOUNG, Nick, op.cit., p. 13. Young suggests that a better term for these organizations might be ‘SONGOs’ or State Owned NGOs, underscoring both the highly apposite analogy with state owned enterprises and the latent potential for these agencies to be corporatised and placed in a semi-independent relationship to government, or even to be wholly divested by the state.
[196] YOUNG, Nick, op.cit., p. 13.
[197] Ibid.
[198] Ibid.
[199] As these main regulations, we can cite: STATE COUNCIL, Regulations for Registration and Management of Social Organisations, 25/09/1998; STATE COUNCIL, Provisional Regulations on the Registration and Management of Non-Governmental and Non-Profit Organizations of the PRC, 25/09/1998. These regulations replaced provisions from 1988 and 1989. Since I only give a small overview, I won’t go further into regulations on donations. Recently, a new regulation on the administration of foundations was promulgated, see STATE COUNCIL, Regulation on Foundation Administration, 08/03/2004 (effective as of 01/06/2004). I will not discuss this regulation in detail. Suffice to say that this new regulation refers to non-profit legal persons making use of property donated by natural persons, legal persons or other organizations, with the purpose of pursuing welfare undertakings (see article 2). The original fund should be minimum 2 million RMB. In article 34, specific supervision by administrative departments is foreseen.
[200] Personal research. This is also confirmed in YOUNG, Nick, op.cit., p. 16 and ZHANG, Ye, op.cit., p. 12.
[201] In the next part, when I describe some of my personal findings at Chinese grassroots organizations, I will give more specific examples detailing the relationship between government and these type of NGOs.
[202] See YOUNG, Nick, op.cit., p. 15. Young mentions that the state is very weary of the growth of lateral connections between disaffected groups: this would represent a serious challenge to the state.
[203] ZHANG, Ye, op.cit., p. 19.
[204] Ibid., p. 19.
[205] For a more detailed view on the building up of the study, and for more information concerning the method of ‘legal ethnography’, see DEKLERCK, Stijn, “Un voyage personnel vers l’anthropologie du droit”, in Regards contemporains sur l’anthropologie du Droit, Droit et Cultures n° hors-série, 2004/3; Cahiers d’Anthropologie du Droit n° hors-série, 2004/2, co-édition Karthala-L’Harmattan, to be published.
[206] See for example CANGO, at www.cango.org, and NPO-network, at www.npo.com.cn
[207] Described above, see p. 33.
[208] See above, p. 33
[209] In informal talks, members of all ‘non-registered organizations’ mentioned that the term “human rights” would attract too much government attention and supervision.
[210] ‘Gay Hotline Beijing’, another organization which I am in contact with, is registered as a research center at the Department of Industry and Commerce. The ‘Culture and Communication Center for Facilitators’, an organization working for an improved position of rural migrant workers, is working as a branch of a registered agency.
[211] Such as members of the China Disabled People’s Federation, which is a GONGO as described above, p. 33.
[212] When XXY organized an international conference on autism and educational healing techniques on 14/03/2003 for example, members of several government departments participated in the discussions.
[213] The PAW received a large fund from the Ford Foundation for the working years 2003 and 2004. XXY received funding from a variety of international organizations, including the Ford Foundation.
[214] When applying for funding from the EU Human Rights Micro-Projects Programme for China, several organizations approached me to help them in preparing a proposal reflective of the standards and goals set forward by the EU inside its European Initiative for Democracy and Human Rights. Organizations themselves admit to put a lot of research in preparing such ‘tailored’ proposals.
[215] For XXY, PAW, and the Gay Hotline Beijing this is obvious, as all organizations participate in global conferences that are often held outside China. Inside the larger Chinese cities like Beijing and Shanghai, there is an active network of international NGOs and funding organizations, encouraging Chinese organizations to look more globally. But also smaller organizations, and even individuals, build up a network aiming to gather more information and support for their cause. Mister Chen for example, a blind activist for the cause of disabled people from outside Beijing, managed to secure lectures and visits to America despite the fact that he didn’t have enough financial means to set up an organization inside China.
[216] I’m thinking here of the fact that the Chinese government, upon questioning from UNAIDS, was compelled to turn to the Gay Hotline Beijing to solicit information about HIV-spreading among gay men.
[217] “Clinton joins China Summit on AIDS, SARS”, China
Daily, 11/11/2003.
[218] To notice the direct influence of Clinton’s
gesture on Chinese leaders, see “Handshake highlights fight against AIDS”, China
Daily, 01/12/2003.
[219] The roundtable was organized on June 11, 2004, by the EC Delegation to China and Mongolia. Invited were members of Chinese NGOs, members of international NGOs, and members of international funding organizations. It was mentioned, among others, that donor organizations could help to create an enabling environment by promoting cooperation between branches of the Chinese (governmental) Center for Disease Control and NGOs.
[220] In contrast to the presentation of the organization in proposals seeking international funding, see above note 213.
[221] An interview with Tian HuiPing, founder of
Xingxingyu, showed that the organization was consciously avoiding the term
“human rights”. Miss Tian told me
at that time that they were avoiding the term because parents would otherwise
think their organization to be subversive. Educating the parents when using the term “human rights”
wasn’t useful either: when parents would stand up for the social position of
their child, mentioning the term “human rights” would have an adverse effect on
all people that could possibly help them out (schools, government departments,
courts,…). The term “rights”
however was being much more accepted in modern-day Chinese society, as efforts
from the Chinese Government to imbibe Chinese population with the importance of
the rule of law had led to the propagation of the term “rights”. Recorded Interview with Tian HuiPing,
December 31 2003.
[222] See STONE, Emma, Disability and Development
– Learning from action and research on disability in the majority world, Leeds: The Disability Press, 1999.
[223] WAN, Ming, op.cit., p. 26-29. See also NATHAN, Andrew, “Human Rights in
Chinese Foreign Policy”, China Quarterly 193,
September 1994, pp. 115-116 referring to NATHAN, Andrew J., SHI Tianjian, “Cultural requisites for Democracy in
China: Findings from a Survey”, Daedalus, Vol.122 No.2, Spring 1993, pp.95-123.
[224] A concept with a long history, traditionally linked to affairs of justice. This concept still influences judging of cases in China. See for example LIU, Guang’an, LI, Cunpeng, “Mediation and the Protection of Rights (Minjian tiaojie yu quanli baohu)”, in XIA, Yong (ed.), Toward An Age of Rights – A Perspective of the Civil Rights Development in China (Zou xiang quanli de shidai – zhongguo gongmin quanli fazhan yanjiu), Zhongguo zhengfa daxue chubanshe, 1999, pp. 251-290.
[225] Main law here would be: STANDING
COMMITTEE OF THE NATIONAL PEOPLE’S CONGRESS, Labor Law of the People’s Republic of China, promulgated on 95/07/1994.
[226] Rural migrant workers often come to Beijing without personal contacts, without accomodation, and without the proper legal documents.
[227] STANDING COMMITTEE OF THE NATIONAL PEOPLE’S CONGRESS, Law of the People’s Republic of China on the Protection of Disabled Persons, promulgated on 28/12/1990.
[228] This on the basis of the ‘Administrative Procedure Law’, commonly called ‘Administrative Litigation Law’. NATIONAL PEOPLE’S CONGRESS, Administrative Procedure Law of the PRC, promulgated on 04/04/1989.
[229] Interview with Mr. Chen, 14/09/2003.
[230] STANDING
COMMITTEE OF THE NATIONAL PEOPLE’S CONGRESS, Law of the People’s Republic of China on the Protection of Disabled Persons, promulgated on 28/12/1990. This law doesn’t make any explicit
mention however of autistic people, and there is still a wide discussion on
whether autistic people can make use of this law and other provisions provided
for disabled persons.
[231] In Article 46 of the Constitution of the
People’s Republic of China, and in the NATIONAL PEOPLE’S
CONGRESS, Compulsory Education Law
of the People’s Republic of China, promulgated on 12/04/1986.
[232] This attitude came to the fore when discussing the possibility of suing a hospital for negligence when transfusing blood infected with HIV. A very negative image was sketched when several persons related stories regarding failed lawsuits.
[233] For a very good overview of recent policy and other changes, see http://www.casy.org/chronpage.htm It is difficult however to keep track of effective implementation of policy changes, causing an overall insecurity concerning the specific reality of changes.
[234] Organized in Beijing on 18/19 October 2003. Participants were NGOs involved with gay/lesbian issues from all over China.
[235] I previously didn’t mention specific problems China is having in implementing its ‘rule of law’ policies. Many previously cited authors describe the difficulties China is facing. See for example LUBMAN, Stanley, op.cit., note 174 and PEERENBOOM, Randall, op.cit., note 174. Activists using the law to confront authorities, like Mr. Chen, cite corruption and a weak position of the courts as basic obstacles in realizing effective protection. China publicly acknowledges these problems, and is working towards solutions. In his book, Peerenboom describes measures the Chinese government has taken to deal with judicial corruption. See PEERENBOOM, op.cit., pp. 280-342.
[236] See p. 30
[237] Conference organized by the Center for International Communications Studies of Tsinghua University (Qinghua daxue guoji chuanbo yanjiu zhongxin), in cooperation with the American ‘Alfred Friendly Fellowships’, from April 17 to April 19, 2004.
[238] This speaker was John Pomfret, reporter for the Washington Post. In China, a large amount of PLWHA got infected through carelessly administered blood transfusions. China presents a special case in this perspective. Mostly it is this particularity that inspires the use of ‘AIDS with Chinese characteristics’.
[239] At the same conference, Ray Yip, director of the China-US AIDS Prevention and Care Project, said that China is now at the stage where South Africa was 10 years ago. In South Africa, measures were taken too late. It is up to China not to make the same mistakes.
[240] ‘Socialist Market Economy’ is just another example. Tendencies to emphasize the Chinese characteristics when talking about the ‘rule of law’ and the ‘civil society’ in China are apparent in our previous discussion of both concepts in China’s present-day society.
[241] See supra, p. 21
[242] In this article, these political connotations could be sensed in government views, but also appeared when talking about academia and ‘civil society’.
[243] Which could in the best case even involve a reassessment of current Western models and an integration of Chinese good practices. As an example one might cite the arguments voiced concerning the increasingly individualistic rights models espoused by the West (see supra p. 9).
[244] An obvious step would be to increase the relevance of the ‘Human Rights Dialogues’.