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China Deals Another Blow to the International Human Rights Framework at its UN Universal Periodic Review

Andrea Worden, November 25, 2018

 

UPR session, Nov 2018, Chine

China Review — 31st Session of Universal Periodic Review, Nov. 6, 2018, Geneva.

 

Over the past several years, the Chinese government has steadily been promoting its own version of human rights –– “human rights with Chinese characteristics”–– at the UN, and maneuvering to insert language trumpeted by the Chinese Communist Party (CCP), with Xi Jinping as its core wordsmith, into various UN resolutions, with an eye toward assuming a leadership role in global human rights governance. China’s third Universal Periodic Review (UPR) by the Human Rights Council (HRC) on November 6, 2018 provided a high-level global forum for the government to announce its newly formulated five-pronged “human rights development path with Chinese characteristics.” In a press conference following the review, Assistant Foreign Minister Zhang Jun claimed that more than 120 countries supported China’s path during the review, and that China’s formulation was “completely correct.” In prioritizing “the right to development” as the fundamental human right and implicitly discarding the fundamental principle of the universality, interdependence, and indivisibility of all human rights, China’s “path” poses a serious threat to the international human rights system.

Although the key components of the PRC’s human rights path are not new, they have been repackaged into a tidy framework, which China confidently proclaimed at its 2018 UPR (@1:25 and 6:09). Earlier, at its 2013 UPR, the PRC stated in its national report that it was “working to explore paths for human rights development.” By 2018, China had discovered the path, described by Zhang Jun as “national conditions-based, people-centered, development-oriented, rule of law-guided and openness-driven.”  This article takes a look at some of China’s moves to promote its “development-trumps-all” human rights narrative and agenda, weaken the UPR mechanism (and, in the process, the credibility of the Office of the High Commissioner for Human Rights (OHCHR)), and further its efforts to gut the international human rights framework as we know it.

The Universal Periodic Review (UPR) Mechanism   

The UPR is a key mechanism of the Human Rights Council (HRC); indeed, it was intended to make the HRC, established in 2006, more robust and equitable than the body it replaced, the UN Human Rights Commission. In this intergovernmental, State-driven mechanism, all 193 UN Member states are reviewed every four and a half years. The review is conducted on the basis of three documents: the national report of the State being reviewed, and two documents prepared by OHCHR–– the compilation of UN information on the State under review, and the summary of stakeholders’ information, which includes information submitted by NGOs.

Three and a half hours is allocated for the review.  The UN Member State under review is allotted a total of 70 minutes, which it uses for opening and final remarks, and comments and responses during the interactive dialogue. The remaining 2 hours and 20 minutes is apportioned equally among the countries that sign up in advance to speak at the review. In China’s 2018 UPR, each State that registered to speak was given 45 seconds to make their statements; in 2013, each country had 50 seconds. The Chinese government uses its influence to stack the roster with its friends (e.g. aid recipients, like-minded dictatorships, BRI partners, etc.) and as a result, countries poised to offer remarks critical of the PRC’s human rights record and make substantive human rights-based recommendations have less time to do so.

 

UPR session, Nov 2018

 

The review is intended to evaluate the State under review’s progress toward achieving and implementing recommendations it accepted during its previous review; fulfillment of the State’s human rights obligations and commitments; and the country’s overall human rights situation. During the interactive dialogue portion of China’s 2018 UPR, 150 delegations made statements, and offered 346 recommendations (@1:30). The Chinese government will provide its position on the recommendations by the 40th session of the Human Rights Council in March 2019. Regarding which recommendations the PRC is likely to accept, and those it’s likely to reject, the head of the UPR delegation, Vice Foreign Minister Le Yucheng, suggested the answer during his final remarks. He said “an overwhelming number of countries have fully recognized China’s efforts and achievements in promoting and protecting human rights over the last five years,” and that the Chinese delegation sincerely appreciated their “many constructive comments and recommendations.” @3:07:22) As for certain other countries, Vice Minister Le said, “We will not accept the politically driven accusations from a few countries that are fraught with biases, and in total disregard of facts; even less will we entertain attempts to use human rights as an excuse to interfere in China’s internal affairs or undermine its sovereignty and territorial integrity.” (@3:08:14)

China Finds its Human Rights Path for the New Era

In the PRC’s National Report submitted for its 2013 UPR (2013 Report), the section that lays out the government’s human rights theory is titled, “The concept and theoretical system of human rights under socialism with Chinese characteristics.” There is no mention of “human rights with Chinese characteristics.” As noted above, the government stated at that time it was “working to explore paths for human rights development.” (para. 5.) The 2013 Report further states that China:

“respects the principle of universality of human rights and is of the view that all countries have a duty to take measures, commensurate with their national conditions, continuously to promote and protect human rights in accordance with the purposes and principles of the Charter of the United Nations and the basic spirit of the Universal Declaration of Human Rights and the relevant international human rights instruments.” (para. 4)

By the time of its 2018 UPR, the PRC had finished its exploration and discovered a “distinctively Chinese” path (@6:35), a path that abandons international human rights norms. The relevant section of the 2018 Report is titled, “The concept and theoretical system of human rights with Chinese characteristics.” There is no mention of the principle of universality of human rights; indeed, the only mention of “universal” is in the negative: “There is no universal road for the development of human rights in the world.” (para. 4) Nor is there a mention the Universal Declaration of Human Rights (UDHR), or “relevant international human rights instruments.” Australia noted the change from 2013 in an advance question to China, and asked:

“Does China still accept the principle of universal human rights, and if not, can China explain how its conception of human rights fits into the international human rights regime built on the concept of universality? Can China explain how “human rights with Chinese characteristics” differs from universal human rights, and if it does not, why it wishes to introduce this distinction?” (Advance Questions, Addendum 3)

This is clearly a human rights path grounded in Xi Jinping’s New Era. Not only are fundamental norms of the universality and interdependence of human rights jettisoned, the Chinese government has also dispensed with any mention of theories articulated by Xi’s predecessor, Hu Jintao. While the 2013 Report contains references to Hu’s “scientific outlook on development” and “harmonious society,” they are absent from the 2018 Report. The Report states:

“[T]he cause of human rights must be promoted on the basis of national conditions and the needs of the people of that country, and cannot be defined on the basis of a single authority. Guided by Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, China attaches great importance to the promotion and protection of human rights, ever acting as an advocate, practitioner and promoter of the cause of protecting human rights and always following the road of developing human rights with Chinese characteristics.” [2018 Report, Para. 4, emphasis added]

The translated phrase “on the basis of a single authority” is a curious rendering of the classical phrase 定于一尊 (dingyuyizun). The meaning is more along the lines of “no one (path of human rights development) should be regarded as the only choice,” or superior to all other choices.

In its 2018 Report, the Chinese government argues, in effect, that the international human rights framework is just one choice among others, and that it should not be taken as the highest authority. What, then, is the highest authority, or “the right system”? For China’s human rights development, there is only one “correct path”–– and it lies with Xi Jinping. The report describes the five-pronged path as the “road of developing human rights with Chinese characteristics” ­­–– a road that “takes national conditions as the foundation”; “takes the people as the centre”; “takes development as the priority”; “takes the rule of law as the criterion”; and “takes openness as the motivator.” (paras. 5-10.)

The PRC’s “Development First” Agenda Gains Further Ground in the HRC

Development, and the right to development, were front and center during the interactive dialogue portion of the UPR, punctuated by strong concerns raised by a smaller number of States about the mass detention of Muslim minorities in “vocational training centers” in Xinjiang, and a wide range of other human rights abuses in China.

As it’s done in the past, the Chinese government seemingly rounded up its friends and beneficiaries to engage in what could be taken as an example of offline “flooding”: the UPR, whose purpose is to review the human rights obligations and actual human rights on the ground of the State under review, was inundated by comments and recommendations from countries praising China’s development, requesting China share best practices, expressing gratitude for aid, and asking for more.  Many developing countries and members of the so-called Like-Minded Group (including, e.g., Russia, Syria, China, Cuba, Venezuela, etc.), which are decidedly not human rights-friendly, offered recommendations to China such as the following:

Namibia: “Continue sharing experiences and best practices in implementing people’s right to development.” (Draft Report of the Working Group on the Universal Periodic Review: China (11/8/18); A/HRC/WG.6/31/L.3, para. 6.128)

Pakistan: “Continue to promote discussions in the Human Rights Council on the role of development in promoting and protecting human rights” (para. 6.33); “Continue to promote the Belt and Road Initiative to help other developing countries in their development endeavours” (para. 6.45).

And in an advance question to China before the review, Pakistan asked: “China has made tremendous achievements in implementing the right to development. Could China share relevant experience?”  (Advance Questions to China First Batch –Rev)

Lao People’s Democratic Republic: “Continue to communicate with other developing countries on the experience of the state governance, including promoting and protecting human rights” (para. 6.52).

Nigeria: “Sustain its efforts in the global fight against terrorism and extremism” (para. 6.145).

Venezuela: “Continue to forge a new type of international relations featuring mutual respect, fairness, justice, and win-win cooperation and building a community with a shared future for human beings” (para. 6.36).

It’s worth noting that Venezuela didn’t quite get the New Era lexicon right during the interactive dialogue, and its recommendation was amended in an early version of the draft report for political correctness. Venezuela did not utter the CCP’s “win-win” slogan during its oral statement, and it described the future as a “shared future for human beings,” neglecting the “building” of “a community.”  The Spanish-to-English interpreter used “forms” instead of “type” (as in “new type of international relations”) and “equity” instead of “fairness.” These “mistakes” were subsequently fixed, in what seems to be another example of PRC influence and discourse management at the UN.

 

UPR session, Nov 2018, Suisse

You may listen to a country’s recommendations for China by selecting the country from menu on the right. http://webtv.un.org/search/china-review-31st-session-of-universal-periodic-review/5858293845001/?term=&lan=english&page=7#player

 

Money Matters and OHCHR  

In its 2018 Report, the PRC notes that it donated $100,000 to the Special Rapporteur on the Right to Development mandate, a new special procedure created in September 2016 (para. 76). At first glance, it’s puzzling that this mandate was created in the first place when a Working Group on the Right to Development already exists, but it turns out to have been another move by the PRC to promote development within the HRC, and occupy more “space” and resources focused on the right to development. Not surprisingly, Venezuela introduced the resolution creating the mandate on behalf of China and the Non-Aligned Movement, which was adopted by a vote of 34-2, with 11 abstentions. France and the UK voted against the resolution. The first (and current) special rapporteur, Mr. Saad Alfarargi of Egypt, participated in the first South-South Human Rights Forum held in Beijing in December 2017, by invitation from the Chinese government. During the UPR, Vice Minister Le said that the PRC will invite the Chair of the Working Group on the Right to Development to visit China (@10:24).

At the 2013 UPR, the PRC announced a dramatic increase in its funding for the Office of the High Commissioner for Human Rights. Special Envoy of the MFA, Wu Hailong, said that China would increase its annual donation to OHCHR from $50,000 to $800,000 for the next four years (@17:30). During the 2018 review, Vice Minister Le announced that China would (again) donate $800,000 annually to the OHCHR for the next five years (@10:20).  The PRC stated in the 2018 Report that it “maintains constructive contacts with [OHCHR], encourages them to perform their duties objectively and impartially, and attaches importance to the concerns of developing countries” (para. 76).

The Chinese government clearly has influence at OHCHR, which it uses to shield its human rights record from scrutiny, mute criticism, and control access to information it would rather keep hidden. The extent of the PRC’s influence, and the different tactics and leverage it uses to exert it, awaits an investigative journalist to thoroughly unravel, but in its groundbreaking report on China’s interference in UN human rights mechanisms, Human Rights Watch provides several examples of Chinese pressure on the OHCHR and special procedures, quoting one UN official as saying:  “China keeps bullying us, saying, ‘Don’t do that,’ ‘Don’t do this,’ or ‘We urge you not to do this.’”

One of the main functions of OHCHR is to provide support for the work of the HRC, including the UPR, and, as mentioned earlier, it is responsible for drafting the compilation of UN information, and the summary of stakeholders’ information. In the run-up to the 2018 UPR, OHCHR was involved in machinations that point to PRC interference in the Office’s work. The details of the disappearing and reappearing NGO submissions on the OHCHR website, inputs from groups the Chinese government views as particularly “troublesome,” and exclusion of their information from the stakeholders’ summary prepared by OHCHR, are explained in a joint statement signed by concerned NGOs, which include, among others, the Uyghur Human Rights Project, World Uyghur Congress, Tibetan Centre for Human Rights and Democracy, Demosistō, and the International Service for Human Rights. The NGOs stated that despite the OHCHR’s belated fix of most of the issues (mere days before the review), they “remain very concerned that the removal of these reports gives further credence to well-documented NGO concerns of China’s growing influence within the UN human rights system, and the deliberate silencing of critical voices.”

After China’s success in the HRC in June 2017 with its resolution titled, “The contribution of development to the enjoyment of all human rights,” I wrote, “What this means, in short, is that China will continue to promote, and attempt to expand, the importance of the right to development and economic rights, while at the same time endeavoring to curtail and weaken the enforcement of civil and political rights.” And so it has. During the UPR, the Chinese government touted its self-described “correct” human rights path, and by presenting a depraved defense of its “vocational training centers” in Xinjiang demonstrated that it was wholly unconcerned with civil and political rights, and the truth. Despite strong, rights-based recommendations from the human rights-friendly countries that participated in the review, China was nonetheless able to use the global stage of the UPR to further advance its “development trumps all” agenda at the expense of the established international human rights framework.

 

 

Andrea Worden croppedAndrea Worden is a human rights activist, lawyer, and writer. She has worked on human rights and rule of law issues involving China throughout much of her career, and previously held positions as the Acting Executive Director of Asia Catalyst, Advocacy Director with the International Campaign for Tibet (ICT), and Senior Counsel at the Congressional-Executive Commission on China (CECC). Her essays and articles on human rights issues in China have appeared in such publications as the The Pro-Democracy Protests in China: Reports from the Provinces, Yale-China Review, Georgetown Journal of International Law, South China Morning Post, and China Rights Forum, among others.

Follow her on Twitter @tingdc

 

 


Andrea Worden’s UN human rights series on China Change:

China Pushes ‘Human Rights With Chinese Characteristics’ at the UN, Andrea Worden, October 9, 2017.

As the UN Declaration on Human Rights Defenders Turns 20, China Wages a Multi-Pronged Attack on Rights Defenders, Andrea Worden, March 14, 2018.

With Its Latest Human Rights Council Resolution, China Continues Its Assault on the UN Human Rights Framework, Andrea Worden, April 9, 2018.

China Fails in its Gambit to Use the UN NGO Committee to Silence the Society for Threatened Peoples and Uyghur Activist Dolkun Isa, July 10, 2018.

 

 

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As the UN Declaration on Human Rights Defenders Turns 20, China Wages a Multi-Pronged Attack on Rights Defenders

Andrea Worden, March 14, 2018

 

“Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms.”

–– UN Declaration on Human Rights Defenders

 

UN Declaration on HRDs

 

The Chinese government attacks human rights defenders (HRDs) – those who peacefully defend and promote human rights – on a range of fronts. First, and most critically, are the government’s attacks on HRDs at home. The relentless crackdown on human rights defenders has gone from bad to worse under Xi Jinping, and we can expect the downward trend to accelerate now that Xi is no longer constrained by term limits. While the resilience of China’s beleaguered HRDs is remarkable, their numbers are shrinking; a few prominent examples of HRDs detained, disappeared, or dead at the hands of the state include: Ilham Tohti, Liu Xiaobo, Tashi Wangchuk, Wang Quanzhang, Li Baiguang, and Cao Shunli.

Second, China harasses, obstructs, and jails HRDs who attempt to engage with the UN human rights mechanisms. A recent Human Rights Watch (HRW) report details the various ways the Chinese government interferes with civil society engagement at the UN, from restrictions on travel and detention (to prevent activists, as in the case of Cao Shunli, from traveling to Geneva), to reprisals and threats against family members of HRDs.

Third, and the focus of this article, China challenges the concept and even the term “human rights defenders” at the UN. With the UN Declaration on Human Rights Defenders (Declaration) celebrating its 20th anniversary this year, and China undergoing its third Universal Periodic Review (UPR) in November, this is an important moment to press China on its utter lack of compliance with the Declaration.

I recently wrote at China Change about China’s aggressive promotion of “human rights with Chinese characteristics” at the Human Rights Council (HRC) to undermine settled international human rights norms and push its vision for “global human rights governance.” This article will look at China’s recent moves in its long-term effort to dilute the concept and “harmonize” the term “human rights defenders,” while at the same time appearing to be a “responsible actor” on human rights at the UN. This two-fold strategy was on display in November 2017, when the Third Committee of the General Assembly adopted by consensus a resolution marking the 20th anniversary of the Declaration, which China joined, while it sought at the same time to weaken the text and the impact of the resolution.

The Declaration on Human Rights Defenders in Brief

The term “human rights defender,” surprisingly, does not appear in the text of the UN Declaration on Human Rights Defenders (the Declaration’s sobriquet), nor in its unwieldy official title: “Declaration on the Right and Responsibility of Individual, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.” Thus, not surprisingly, the Declaration lacks a precise definition of the term “human rights defender.” Article 1 of the Declaration states simply: “Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms…” Those who exercise this right (through peaceful, nonviolent means) are human rights defenders; human rights defenders are identified first and foremost by what they do.

The Declaration highlights those rights that HRDs (and others) already have pursuant to international human rights law –– such as those set forth in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and other human rights instruments –– which are fundamental for the defense of human rights. These rights include, among others, the rights to peaceful assembly and association, freedom of expression and opinion, free flow of information, the right to participate in public affairs, the right to due process and an effective remedy for violations of human rights defenders’ rights, and the right to solicit and receive funds for rights defense work. (See inter alia, arts. 5-9, 12,13; and discussion in Chinese here.)

States have various duties and responsibilities under the Declaration, including “to protect, promote and implement all human rights and fundamental freedoms” and to create a safe and enabling legal and administrative environment for the effective guarantee and enjoyment “of all those rights and freedoms in practice.” (Art. 2.)

China’s Role in the Drafting of the Declaration

The drafting of the Declaration on Human Rights Defenders took 14 years and was described by Amnesty International as “tortuous” in a 1995 account. The glaring absence of the term “human rights defenders” from the Declaration’s title and text –– despite the usage of the term during negotiations of the text –– speaks to the contentiousness of the process that brought the Declaration into being.

In 1985, the UN Commission on Human Rights (predecessor to the Human Rights Council), created a working group to draft the Declaration. At first, the former Soviet Union and Eastern bloc countries were primarily responsible for moves that hindered progress on the draft text; however, in the 1990s, after the collapse of the Soviet Union and other geopolitical shifts, the States most responsible for obstruction and delay on the draft were Cuba, China, and Syria, with Mexico and Iran playing supporting antagonistic roles.

In 1994, according to Amnesty’s account, China and Cuba argued to remove from the draft an article relating to the right to solicit and obtain resources for the work of HRDs.  In 1995, China and Cuba also pushed for inclusion of wording that would have limited defenders to the right to peacefully oppose only violations of their own rights, rather than human rights abuses suffered by others. In addition, China supported a proposal offered by Cuba that would have created numerous limitations on the work of HRDs, including restricting the work of HRDs to its “humanitarian essence.” Amnesty concluded at the time that the “root problem is that a small group of governments seem determined to prevent the creation of a useful instrument for the defence of human rights.”

The fractious working group eventually reached agreement on a final text, and on December 9, 1998, the UN General Assembly adopted the Declaration on Human Rights Defenders by consensus ( i.e., without a vote).  The adoption was timed to coincide with the 50th anniversary of the adoption of the Universal Declaration of Human Rights (UDHR) by the General Assembly (December 10, 1948). Although the Declaration on HRDs is not legally binding, its adoption by consensus –– despite the struggle it took to reach an agreed text –– is a sign of political will among UN Member States for the principles, language, and action items contained in the Declaration.

China Pushes Back Against Growing Momentum for Protection of HRDs

During the past 20 years, however, countries have differed greatly in the extent to which they have embraced, or opposed, the Declaration and the changes it helped catalyze. China has continuously undermined protection for human rights defenders at the UN, and persistently wages war on the term, regardless of where it may show up (e.g., HRC resolutions in June 2016 on the elimination of discrimination against women and violence against women). As HRW notes in its recent report, The Costs of International Advocacy, during the June 2016 session, a Chinese diplomat stated that the HRC “should not promote such a controversial concept.”

As human rights defenders have become recognized as a vital part of the international human rights mechanisms, and the UN creates more space for civil society, China and other States (e.g., China’s friends in the so-called Like-Minded Group) have intensified their efforts to silence them. A UN official quoted by HRW said: “The whole UN machinery tries to make space for civil society while the PRC machinery works the other way, trying to shrink the space for NGOs.”

The tactics used by China and other authoritarian regimes to silence those who try to engage with the UN human rights mechanisms has led to a greater focus on the issue of reprisals at the Human Rights Council and in the UN system as a whole. In September 2017, China abstained from an HRC resolution on cooperation with the UN human rights mechanisms and reprisals. Earlier, China challenged the treaty body chairs’ adoption of the San Jose Guidelines, measures aimed to protect civil society actors from reprisals for their efforts to engage with the treaty bodies.

China’s Efforts to Undermine HRDs in the General Assembly’s Third Committee in 2017

In October 2017, during the interactive dialogue with the Special Rapporteur on the situation of human rights defenders on his annual report in the General Assembly’s (GA) Third Committee –– a key component of the UN human rights infrastructure  –– a Chinese diplomat delivered a statement that summarizes some of the key arguments China marshals against HRDs at the UN (English) (Chinese). Ms. Qu Jiehao stated:

“China is of the view that as there is no clear and universal definition worked out through intergovernmental negotiation on “human rights defenders”, countries have different views on who can be defined as ‘human rights defenders.’ All people should enjoy the same human rights and fundamental freedoms on an equal basis. Human rights defenders should not be regarded as a special group to be granted special rights and status. Those who have violated law or engaged in criminal activities in the name of ‘human rights defenders’ to undermine the interests of the majority of people or public order should be brought to justice according to law.”

China and other countries that are not friendly toward HRDs use the absence of a definition of the term “human rights defenders” in the Declaration on Human Rights Defenders to argue that the term and concept “human rights defenders” is ambiguous and controversial–– notwithstanding the robust and expanding UN (not to mention regional and national) infrastructure on human rights defenders.

Moreover, China speciously argues that the Declaration on HRDs creates “special rights” for HRDs. The text of the Declaration is clear, however, that the rights highlighted therein are contained in the UDHR and other core human rights instruments, and are specifically emphasized because they are critically important to the defense of human rights. The Chinese government also invokes its domestic laws (e.g., those that in practice are used to criminalize peaceful speech and assembly) to argue that HRDs are engaged in “illegal conduct,” and thus are not only undeserving of protection, but also criminally liable. China also invokes “non-interference in internal affairs” on this issue, as it does with so many issues at the UN.

A resolution on human rights defenders, with different themes and emphases, is introduced biennially, in alternating years, in the GA’s Third Committee in New York and the Human Rights Council in Geneva. Norway takes the lead on the HRD resolutions, as it did in November 2017 in the Third Committee, and strives to achieve a consensus text to signal to HRDs around the globe that the UN unanimously supports them.

On November 20, Ambassador May-Elin Stener, the Deputy Permanent Representative for Norway to the UN, introduced the draft resolution on human rights defenders (A/C.3/72/L.50/Rev.1) in the 51st meeting of the Third Committee of the GA’s 72nd session (UN Web TV @ 14:00). The resolution calls for an end to violence and reprisals against HRDs and the active promotion of the Declaration and its implementation during 2018. The resolution also provides for a high-level plenary meeting of the General Assembly during its 73rd session in 2018 on the promotion of the Declaration, and requests the Secretary-General to “undertake a comprehensive assessment and analysis of progress, achievements and challenges” on how the UN mechanisms can better assist States in “strengthening the role and security of human rights defenders.”

After Ambassador Stener presented oral revisions to the draft resolution (beginning @ 17:44) that reflected further negotiations, she invited the Committee to adopt the resolution by consensus, as orally revised, so “the Third Committee can send a clear message of unanimous support of human rights defenders in all parts of the world.”

Estonia, speaking for the EU (beginning @ 31:05), expressed a certain degree of dissatisfaction with the text. Estonia stated that the EU welcomed “the aim of this resolution” to use the 20th anniversary of the Declaration “in a manner that is supportive of the work of the human rights defenders around the world.” But he expressed the EU’s concern that there were “a number of areas” that “could have benefitted from a strengthening of the text, including more accurate references to existing official UN documents and the removal of unnecessary qualifiers.” But in the interests of achieving consensus, the EU agreed to the final text.

Although China also joined the consensus on the adoption of the resolution, and did not call for a vote, as it had in 2015, it nevertheless issued a statement challenging certain aspects of the resolution.

The Chinese delegate (beginning @ 33:10) welcomed the tabling of the resolution and said that it joined the consensus after oral amendments. In particular, the delegate expressed China’s appreciation for Norway accepting its proposals on a few specific paragraphs, including preambular (i.e., introductory) paragraph 7 (discussed below). He then laid out China’s positions and reservations.

With respect to preambular paragraph (PP) 9, which describes rights defenders’ work as “positive, important, and legitimate,” China stated:

“Preambular paragraph 9 contains preconceived notions that the roles and activities of human rights defenders are legitimate. China reiterates that … human rights defenders must carry out their activities in a peaceful and lawful way. Human rights defenders, if acting in violation of domestic law, shall be equally sanctioned by the law as others. No state shall employ the issue of human rights defenders as a tool to interfere in other countries’ internal affairs.”

China also expressed concern about operative (i.e., action-oriented) paragraph (OP) 7, which condemns the criminalization of, and intimidation and violence against human rights defenders for reporting and seeking information on human rights abuses, and OP 8, which urges States to protect the right of everyone to interact with international human rights bodies. China stated that these two paragraphs “go beyond the scope of the application of the Declaration.”

With respect to the paragraph calling for a high-level meeting of the GA in its next session (OP 14), the Chinese delegate stated, “the paragraph is ambiguous about the nature of the meeting.” He continued: “China wishes to highlight that this meeting shall be of a commemorative nature and its purpose is to promote the declaration. China is not in favor of the adoption of an outcome document in this meeting.”

The Chinese delegate noted that China had called for a vote on the human rights defenders’ resolution two years earlier in 2015 but this year (2017) it joined the consensus, because it believed that the current text had improved compared with the 2015 resolution. The call for a vote in 2015 by China and Russia was unprecedented; at the time, Amnesty expressed concern about “actions taken by some Member States to undermine the crucial principles of the UN Declaration on Human Rights Defenders adopted in 1998.”

With respect to the 2017 resolution, China’s change to PP 7 is potentially significant ––a footnote was added to the term “human rights defenders.” The footnote states: “The term human rights defenders applies consistent with the purposes, principles and provisions of the Declaration on the Right and Responsibility of Individual, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.” This unnecessary addition, which China took responsibility for, is perplexing. It may be an opening salvo in a bid to undermine the common understanding of the work of HRDs and their rights, and the States’ responsibility to protect them. The fact that the representative of the Russian Federation (beginning @ 37:30) expressed support for the footnote is cause for concern. The delegate stated that Russia was “pleased to see” in the orally amended document “specifications regarding the term human rights defenders.”

Moreover, Switzerland expressed concern about China’s addition of the footnote (beginning @ 47:45), stating: “we regret the addition of a footnote under PP 7, which seeks to define the term human rights in the resolution. Switzerland believes that this footnote is applicable only in the context of this resolution on the 20th anniversary of the Declaration on Human Rights Defenders, and we reserve our position for the future.”

Different iterations of the draft resolution also reflect a struggle over its title. The title of the first version of the resolution tabled in late October 2017 (A/C.3/72/L.50) included a parenthetical with the shorthand name for the Declaration’s cumbersome title: “Twentieth anniversary and promotion of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (commonly referred to as the Declaration on human rights defenders).” [Emphasis added.] The parenthetical didn’t last long. In the next version of the negotiated text (A/C.3/72/L.50. Rev.1), the “commonly referred to as” language was moved to a footnote, and in the final version of the resolution that was adopted by the Third Committee, the footnote had disappeared, and the “commonly referred to as” language resurfaced in an easy-to-miss spot at the end of the third preambular paragraph.

In late December 2017, the GA adopted by consensus the Third Committee’s final draft resolution on the 20th anniversary of the Declaration. Now that we are well into 2018, it’s incumbent upon all stakeholders to proactively promote the Declaration and work towards strengthening its implementation.

 

 

*          *          *

What can be done at the UN during the 20th anniversary year of the Declaration? 

There are several significant opportunities for civil society engagement on China and the issue of human rights defenders in 2018.

First, China’s next Universal Periodic Review (UPR) will take place in November 2018. The deadline for NGO submissions is March 29. China’s national report is due in July 2018. Despite the fact that States are obligated to consult with domestic civil society in the process of drafting their National reports, China’s practice, not surprisingly, has been to enlist GONGOs in an effort to appear to “satisfy” this requirement.

Second, as Tess McEvoy of the NGO International Service for Human Rights (ISHR) notes, the resolution marking the 20th anniversary of the Declaration “gives human rights defenders the opportunity to channel analyses and recommendations related to implementation into UN processes, with the ultimate aim of establishing better implementation and procedures.” The high-level meeting of the General Assembly on the situation of human rights defenders will take place sometime during the fall of 2018, and input from HRDs worldwide will be sought in advance for a report to be presented at that meeting.

 

 

Andrea Worden croppedAndrea Worden is a human rights activist, lawyer, and writer. She has worked on human rights and rule of law issues involving China throughout much of her career, and previously held positions as the Acting Executive Director of Asia Catalyst, Advocacy Director with the International Campaign for Tibet (ICT), and Senior Counsel at the Congressional-Executive Commission on China (CECC). Her essays and articles on human rights issues in China have appeared in such publications as the The Pro-Democracy Protests in China: Reports from the Provinces, Yale-China Review, Georgetown Journal of International Law, South China Morning Post, and China Rights Forum, among others.

Follow her on Twitter @tingdc

 

 

 


Related: 

Declaration on Human Rights Defenders  (English) (Chinese)

OHCHR, Special Rapporteur on the Situation of Human Rights Defenders

Website of the current UN Special Rapporteur on the Situation of human rights defenders, Mr. Michel Forst

OHCHR Fact Sheet No. 29, Human Rights Defenders: Protecting the Right to Defend Human Rights  (English)  (Chinese)

Janika Spannagel, Declaration on Human Rights Defenders (1998), November 2017 http://www.geschichte-menschenrechte.de/en/schluesseltexte/erklaerung-zu-menschenrechtsverteidigern-1998/

International Service for Human Rights, Third Committee of the UN General Assembly: A Practical Guide for NGOs (2017)

Universal Periodic Review –– A Practical Guide for Civil Society (English) (Chinese)

Sonya Sceats with Shaun Breslin, China and the International Human Rights System (Chatham House, October 2012)

Human Rights Watch, The Costs of International Advocacy (September 2017)

Chinese Human Rights Defenders, Repression & Resilience: Annual Report on Situation of Human Rights Defenders in China (2017)

Andrea Worden, China Pushes ‘Human Rights With Chinese Characteristics’ at the UN

 

 

 

 

 

Chinese Communist Party’s Real Attitude towards International Law

By Lan Wuyou, published: October 29, 2014

 

Affirmation in words, negation in actions

In today’s world, mankind has developed a common understanding of values like freedom and democracy, even dictatorships feel compelled to make claims of being free and democratic, except that they make up a different set of interpretations to suit themselves. This is also true in the way they treat international law. Such regimes treat both freedom and democracy as well as international law in this way. The world has witnessed the conduct of the Chinese Communist Party, which has neither fulfilled its commitments and responsibilities to the international community, nor has it utilized international rules to safeguard the legitimate rights and interests of the country, let alone safeguarding the world peace and improving human rights. The CCP’s reference to international law at every turn of speech is an insult to the term and a humiliation to the people of China.

On February 17, 2014, the U.N. Office of the High Commissioner for Human Rights issued the 372-page “Report of the detailed findings of the commission of inquiry on human rights in the Democratic People’s Republic of Korea,” detailing the atrocities suffered by the North Korean people, raising allegations of Pyongyang’s crimes against humanity, and proposing that the International Criminal Court investigate and indict Kim Jong-un and other high level officials. Such actions represent rightful international intervention in North Korea’s human rights situation. However, China stated that bringing one country’s human rights problems to the International Criminal Court is not helpful in improving the human rights situation, and that “disputes within the sphere of human rights should be managed by means of constructive dialogue and cooperation on the basis of equality and mutual respect .” Such clichéd language manifests China’s protection of North Korea. North Korea is not a signatory of the Rome Statute of the International Criminal Court, meaning that a criminal investigation into Kim Jong-eun and others like him would require the support of the U.N. Security Council. Without a doubt, the CCP would thwart such an investigation.

China’s special status as a U.N. Security Council permanent member state, joining the ranks of the five greatest countries, is a result of the bloody battle fought by the army and the people of the Republic of China and their achievements in World War II. CCP armies were passive throughout the war, but took the UN Security Council seat after it won the civil war and took over China. A permanent member state’s power to veto on important affairs of the world is a privilege in terms of international law, but even more, it is a responsibility. With this veto power, CCP has hardly made any contribution to the global family. Instead, it often uses it to aid evil-doers, letting humanitarian crises unfold without doing anything in the name of non-interference in other countries’ internal affairs. If not sheltered by the Chinese government, the Kim dynasty in North Korea would have long collapsed. The CCP protection of this rogue regime has resulted in the hellish suffering of countless North Koreans, for which the Chinese people should feel guilty and ashamed. Tens of thousands of innocent people have been sacrificed because China and Russia vetoed sanctions imposed on Syria by the U.N. Security Council. When Russia flagrantly invaded Crimea, China turned a blind eye. The CCP has emblazoned many infamous dictators as “old friends,” while making enemies of civilized nations.

Hiding Dishonorable Behaviors behind Opportunism

The CCP’s so-called respect for national sovereignty and noninterference in others’ internal affairs is a sham.

Modern international law has long shifted from emphasizing national sovereignty above all else in the past to honoring and protecting human rights on a global scale. Human rights law is an important component of international law. The “International Convention on Economic, Social and Cultural Rights” (ICESCR) and the “International Convention on Civil and Political Rights,” passed by the U.N. General Assembly in 1966, comprise the backbone of international human rights law. In 1998, China’s State Council signed the ICCPR; however, to this day, it has not been ratified by the National People’s Congress, effectively stalling implementation of the Convention. Even though the ICESCR has completed the ratification process, its implementation has fallen far short of the requirements of the Convention.

Taking part as a member state in U.N. Human Rights Council’s “universal periodic review” system, China on the one hand produces falsified, vacuous national human rights reports to fool the international community, and on the other, suppresses activists who are truly working to defend human rights. This is an important indication of how China fails to abide by international law and fulfill its commitments.

For one to profess to be law abiding, yet to refuse to abide legal jurisdiction in favor of one’s own judgment and operate solely based on one’s own “interpretations” – can we really concede that such an individual is law abiding? But this is exactly how the CCP operates. Deep down, the CCP never trusts international law, and rejects the enforcement of international judicial institutions with the excuse that “negotiation and consultation as a means of settling international disputes” is better. To date, the CCP has yet to submit a single dispute to the international court. China signed the “U.N. Convention on the Law of the Sea” (UNCLOS), yet refused to accept judicial and arbitration jurisdiction regarding maritime boundary and territorial disputes. When the Philippines filed a complaint against China in the International Tribunal for the Law of the Sea, China ducked its head and refuses to get involved. Though China participated in the establishment of the International Criminal Court, it voted against the “International Criminal Court Rome Statute” and refused to become a signatory because it is leery of universal jurisdiction, crimes committed during civil wars, peacetime crimes against humanity, and the prosecutors’ rights to conduct independent investigations.

All for the Need to Maintain a Grip on Power

Why does the CCP reject universal jurisdiction? Universal jurisdiction is an important principle of international law, under which any country has the right to exercise criminal jurisdiction over serious offenses that harm the common interests of mankind, including genocide, torture, war crimes and crimes against humanity, regardless of the location of the offense or nationality of the offender. Countries may also establish special international mechanisms to prosecute and try such offenders. Universal jurisdiction prohibits offenders from using sovereignty as an excuse to avoid persecution. In recent years, Chinese officials have been tried outside of China for crimes such as persecution of Falun Gong practitioners and ethnic minorities. On February 10, Spain’s National Court issued an international order of arrest for Jiang Zemin and Li Peng, among others.

Although this kind of investigation is unlikely to result in punishment for the offender due to CCP interference, it still confronts the arrogance of these evil-doers and serves as a kind of deterrent.

In the face of international conflict or events that have been internationalized, the CCP will not utilize international rules and regulations to fight for fair rights and benefits of China as a country, will not directly face problems, and will only act of its own accord. The South China Sea issue has undoubtedly become internationalized since early on, but the CCP insisted on self-deception while deceiving others, putting China in a difficult position.  This illustrates how the CCP doesn’t really have the interest of the country in mind. Whether it’s the “setting aside of territorial disputes for the time being” of Deng’s era, or Xi Jinping’s extremely provocative posturing, neither is out of consideration for China’s national interest. Rather, they serve the political needs of the party, and the needs to protect its reign. The CCP’s refusal to act in accordance with international norms in favor of reckless abandon not only gives the international community a vile impression of China that could lead to further isolation, but also causes China to forfeit sovereignty and humiliate itself at the same time. In the Party’s view, international law is nothing more than a tool for publicizing and demonstrating the official position. The Party does not permit the existence of other points of view, scholars hardly have any independence, and the public is hard pressed to find complete and neutral analysis from the perspective of international law to understand what the crux of the issue is.

Some believe that today’s China is similar to Germany 100 years ago, and there is some truth in this assessment. In January of this year, China and Japan cursed each other as “Lord Voldemort.” It seems to me that, though Japan’s militarism once inflicted catastrophes on its neighbors, its post-war constitutional system sealed it away and prevents it from reoccurring. But the Chinese Communist Party, ruler of the present-day China, is a current criminal which is not checked domestically by the will of the Chinese people and which does not honor the rules of the international law. Still short on real strength, it has not been engaging in aggressive expansion, but throughout, dictatorship not only harms the Chinese people, it is also a threat to the region and the world.

International law is “soft” on strength, and the job of defeating “Voldemort” will have to rely on the people of China. But international society cannot continue to subscribe to the policy of appeasement. The UN has to be reformed to really play its role in promoting peace and development in the world without being manipulated by a few rouge states. China will not be an accountable and respected country in the world until it becomes a free and democratic country.

 

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Lan Wuyou (蓝无忧) is a legal professional living in Zhengzhou. 

 

Related:

Understanding China’s Diplomatic Discourse, by Zhao Chu

 

(Translated by Lauren G.)

Chinese original