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The Rise of China and International Human Rights Law

Björn Ahl1

Abstract: This study focuses on the Universal Periodic Review of the United Nations Human

Rights Council in order to investigate the impact of China’s official human rights position on

international human rights discourses. China’s Review, including its National Report, the

Chinese Government’s reactions to statements and recommendations on its domestic human

rights situation as well as its statements and recommendations on other states under review

are investigated in order to find out whether China is able to project successfully its official

human rights view on the international arena.

A. Introduction

This study takes the People’s Republic of China (‘PRC’) as an example of a ‘new’ player in

international relations and investigates the impact of China’s rise on international human

rights law. Though the PRC is not new to the international community, it has taken on a new

role due to its economical rise and gaining in international power. During the past decade,

China’s participation in international regimes has increased significantly. The accession to the

WTO in 2001 marked the beginning of a continuous engagement in the field of international

trade.2 China is now a member of 25 human rights treaties, including six core human rights

instruments.3 It participates in the international human rights regime by submitting reports,

1 Dr. iur. (Heidelberg), Associate Professor of Chinese Legal Culture, Institute of East Asian Studies, Cologne University. I would like to thank Pilar Czoske for valuable research assistance. 2 J. Ya Qin, Trade, Investment and Beyond: The Impact of WTO Accession on China's Legal System, 191 The China Quarterly 720 (2007). 3 Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979, 1249 United Nations Treaty Series 13; the PRC ratified the convention on 4 November 1980 and declared a reservation regarding Art. 29 (1); International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966, 660 United Nations Treaty Series 195; the PRC ratified the convention on 29 December 1981 and declared a reservation regarding Art. 22; International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, 1465 United Nations Treaty Series 85; the PRC ratified the convention on 4 October 1988 and declared that the Chinese Government does not recognise the competence of the Committee against Torture as provided for in Art. 20 of the Convention and does not consider itself bound by Art. 30 (1); Convention on the Rights of the Child of 20 November 1989, 1577 United Nations Treaty Series 3; the PRC ratified the Convention on 2 March 1992 and declared that the PRC shall fulfil its obligations provided by Art. 6 of the Convention under the prerequisite that the Convention accords with the provisions of Art. 25 concerning family planning of the Constitution of the PRC and in conformity with the provisions of Art. 2 of the Law of Minor Children of the PRC; International Covenant on Economic, Social and Cultural Rights of 16 December 1966, 993 United Nations Treaty Series 3; the PRC ratified on 27 March 2001. The PRC declared that the application of Art. 8 (1) (a) of the Covenant to the PRC shall be consistent with the relevant provisions of the Constitution of the PRC, the Trade Union Law of the PRC and the Labour Law of the PRC; Convention on the Rights of Persons with Disabilities of 13 December 2006, 2515 United Nations Treaty Series 3; the PRC ratified the Convention on 1 August 2008.

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drafting new instruments and engaging in various bilateral human rights dialogues.4 In the

post-Tiananmen period China faced UN censure, Western government sanctions, suspension

of co-operation and freezing of loans. In the UN Human Rights Commission, China defeated

resolutions by no-action motions but the annual fight over resolutions were an embarrassment

for the Chinese Government. This led to a more proactive approach to international human

rights in order to eliminate country-specific resolutions, ‘confrontation’ as well as ‘naming

and shaming’. 5 China co-operated with other developing countries and formed the

Like-Minded Group to propose reforms of human rights monitoring. In general, Beijing’s

response to Western human rights criticism was largely successful.6

China is not only imagined as the ‘other’ in orientalist and essentializing discourses;7 as an

economically successful and flexible authoritarian state it also constitutes an alternative

model of a political system that is fundamentally different from liberal democracies.8 The

development model of the ‘Beijing consensus’ appeals to many developing countries,

particularly after the global financial crisis appears to have discredited rule-of-law systems.9

As China’s authoritarian political system is built on non-liberal values, there is an intrinsic

tension between such a political system and the international human rights regime that

assumes a liberal framework.10

There is no consensus in international relations studies on the future role of China in the

international community. Whereas it is generally believed that an increasingly integrated and

institutionalized international order can socialize norm-violating states,11 China’s behaviour

towards the international human rights system has been described in terms of ‘tactical

learning’ rather than socialization into international standards.12 Other authors emphasized

the Chinese Government’s ability to impede international human rights scrutiny.13 It is

argued that China resists the normative influence of the international human rights regime by

attempting to diminish international human rights pressure or by only erratically making 4 R. Peerenboom, China Modernizes: Threat to the West or Model for the Rest?, at 83 (2007). 5 D. Chen, Explaining China’s Changing Discourse on Human Rights, 1978-2004, 29 Asian Perspective 155 (2004). 6 R. S. Inboden/T. C. Chen, China’s Response to International Normative Pressure: The Case of Human Rights, 47 The International Spectator 45, at 50 (2012); D. Chen, China’s Participation in the Human Rights Regime: A State Identity Perspective, 2 Chinese Journal of International Politics 399, 403-404 (2009). 7 T. Ruskola, Legal Orientalism, 101 Michigan Law Review 179 (2002). 8 For a recent account of authoritarianism in China see: C. Li, The End of the CCP's Resilient Authoritarianism? A Tripartite Assessment of Shifting Power in China, 211 The China Quarterly 595 (2012). 9 S. Halper, The Beijing Consensus: Legitimizing Authoritarianism in Our Time (2012). 10 Peerenboom (note 4) at 86. 11 G. J. Ikenberry, The Rise of China and the Future of the West: Can the Liberal System Survive? 87 Foreign Affairs 23, at 37 (2008). 12 M. Wan, Human Rights in Chinese Foreign Relations, at 126 (2001). 13 A. Kent, China, the United Nations and Human Rights: The Limits of Compliance (1999).

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concessions. Moreover, China is regarded as applying economic and political leverage to

reshape international human rights institutions in order to make them suit its own interests.14

A recent study has analysed China’s statements on human rights at the United Nations in

order to find out whether and how a powerful People’s Republic challenges international

human rights norms.15 It is found that the Chinese Government manages a consistent

counter-discourse on international human rights that focuses on contesting implications of

human rights rather than challenging the rights themselves. Though China’s official

statements are regarded as being dominated by a self-defensive approach, it is argued that

firm and repeated opposition to important implications of human rights will lead to a gradual

erosion and dilution of core concepts of international human rights.16

This study focuses on the Universal Periodic Review (‘UPR’) of the United Nations Human

Rights Council (‘HRC’) in order to investigate the impact of China’s official human rights

position on international human rights discourses. China’s Review, including its National

Report, the Chinese Government’s reactions to statements and recommendations on its

domestic human rights situation as well as its statements and recommendations on other states

under review may reveal whether China is able to project successfully its official human

rights view on the international arena by articulating its preferential interpretation of

international human rights. The investigation may also discover whether other states support

Chinese human rights approaches.

Against the background of doctrinal and sociologically informed models of China’s

interaction with international law, the UPR is introduced and its significance for measuring

China’s impact on international human rights discussed. Then the study turns to the legal

relevance of the UPR and analyses the National Report, statements and recommendations of

the PRC Government as well as other activities of China with regard to the development of

international human rights.

B. Models of China’s Interaction with International Law

China’s normative engagement in international human rights law is closely interlinked with

the processes of international law reception, in particular the application of international

treaties in municipal law. The PRC Government’s motivation to challenge the liberal human

rights order originates primarily in domestic resistance to assimilation of local practices and

institutions.

14 Inboden/Chen (note 6), at 55. 15 K. Kinzelbach, Will China’s Rise Lead to a New Normative Order? An Analysis of China’s Statements of Human Rights at the United Nations (2000-2010), 30 Netherlands Quarterly of Human Rights 299 (2012). 16 Ibid. 331-332.

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On a doctrinal level, China’s reception of international law is dealt with a high degree of

flexibility.17 The abstract relationship between international law and municipal law is neither

explained in terms of monism nor dualism. Instead, Chinese scholars follow a dialectical

model according to which international law and municipal law are separate systems that are

infiltrating and supplementing each other rather than conflicting with each other.18 The

Chinese Constitution is silent on the status of public international law in the national legal

system. Art 67 (14) of the Constitution provides that the National People’s Congress (‘NPC’)

Standing Committee decides on the ratification of international treaties, which implies that

treaties have the same rank in domestic law as statutes adopted by the NPC Standing

Committee. However, the NPC Standing Committee’s decision and the subsequent

publication of the treaty text in the Official Gazette do not have the capacity to allow the

administration and the courts to apply treaty provisions directly. Direct application requires

either a statutory reference norm or a judicial interpretation of the Supreme People’s Court

referring to the relevant international treaty.19 Reference norms are statutory provisions that

provide for the application of specific international treaties within municipal law if certain

conditions are fulfilled, e.g. national law contravenes an international treaty obligation.20

Interpretations of the Supreme People’s Court supplement or adjust statutory reference norms.

Apart from explicit references to international law, the domestic legal system is harmonized

with international treaties by amending existing laws and regulations or by adopting new

legislation.21 Official statements set out that international treaties can either be implemented

by amending and adopting existing laws, enacting new laws or in some cases by directly

applying international norms, depending on the area to which they belong.22 The complex

mechanism that controls the application of treaties in China enables state organs to limit the

effectiveness of domestic treaty implementation. If, for example, the NPC Standing

Committee were to avoid publication of the treaty text in the Official Gazette, the treaty

17 B. Ahl, Chinese Law and International Treaties, 39 Hong Kong Law Journal 737 (2009); K. Zou International Law in the Chinese Domestic Context, 44 Valparaiso University Law Review 935, (2009-2010). 18 T. Wang, Introduction to International Law (Guojifa yinlun) at 191 (1998); G. Zhou, International Law (Guojifa) at 20 (1983); Z. Li, The Role of Domestic Courts in the Adjudication of International Human Rights: A Survey of the Practice and Problems in China, in: B. Conforti (ed.), Enforcing International Human Rights in Domestic Courts, 329, at 338 (1997). 19 Ahl (note 17), 747-748. 20 Art 142 (2) General Principles of Civil Law of 4 December 1986 as amended by 27 August 2009: “If any international treaty concluded or acceded to by the People's Republic of China contains provisions differing from those in the civil laws of the People's Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People's Republic of China has announced reservations.” 21 M. Wan, Human Rights Law-making in China, 29 Human Rights Quarterly 727 (2007). 22 L. Zhu, Chinese Practice in Public International Law: 2010, 10 Chinese Journal of International Law, 430 (2011).

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would fail to become valid in domestic law. Published treaties would be of no effect at all if

no statutory reference provisions were adopted that refer to the treaty and enable direct

application of it. Even if there were a reference norm that refers to a treaty, a legally binding

judicial interpretation could prevent a court from referring to a treaty. Moreover, reference

provisions grant courts wide discretionary power, particularly those that make the prior

application of a treaty subject to the condition of a conflict of domestic and international

provisions or a loophole in national law.23

The enormous flexibility that is inherent in this approach enables the PRC Government to

prove, in relation to other states and international organizations, the domestic implementation

of treaty obligations by way of publication of the treaty and reference norms. In case the PRC

Government faces criticism of improper implementing an international human rights treaty, it

may either argue that the treaty has already automatically become part of the domestic legal

system or point to the published treaty text in the Official Gazette or to a reference norm. On

the other hand, if a claim is based on an international human rights treaty before a domestic

Chinese court, the court can either argue that the preconditions for the application of a

reference norm are not fulfilled or that the treaty had already been transformed into domestic

law and that only the relevant domestic law provision should apply. 24 Judicial and

administrative practice is left enough latitude to be able to continue ignoring international

obligations. The legal mechanism of international law reception in China suggests that there

are local variations and deviation from international standards and practices alongside the

general tendency of global convergence in international law. Particularly in the field of human

rights, the combination of resistance on the domestic level with efforts to increase the

appearance of international human rights compliance on the international level is most

evident.25

A sociologically informed perspective has termed this process ‘selective adaptation’ which

describes how the interpretation of international rule regimes is mediated by local norms:26

“interpretive communities selectively adapt non-local standards for local application in light

23 Ahl (note 17), at 752. 24 B. Ahl, Statements of the Chinese Government before Human Rights Treaty Bodies: Doctrine and Practice of Treaty Implementation, 12 The Australian Journal of Asian Law 82 (2010). 25 P. Potter, China and the International Legal System: Challenges of Participation, 191 The China Quarterly 699, at 713 (2007). 26 P. Potter, Law, Policy, and Practice on China's Periphery: Selective Adaptation and Institutional Capacity (2011); P. Potter, Legal Reform in China – Institutions, Culture and Selective Adaptation, 2 Law & Social Inquiry 465, at 478 (2004); L. Biukovic, International Law Interrupted – A Case of Selective Adaptation, 60 University of British Columbia Law Journal 161, 167-171 (2010).

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of their own normative perspectives”.27 According to this view, the process of selective

adaptation is composed of elements of perception, complementarity and legitimacy.

Perception of international law determines how local communities interpret and apply

international law in the domestic context.28 China’s perception of international human rights

is related to factors such as historical process, domestic political culture, the one-party system,

the concept of international law and international power politics.29 It is argued that China’s

selective compliance with international human rights is based both on domestic and

international factors. 30 The Government’s official human rights concept exercises

considerable influence on the perception of international human rights in China. Main

features of the Chinese human rights concept are the privileging of collective over individual

rights, intrinsic hierarchy of rights, subordination of civil and political rights to

socio-economic development, contingency of rights on local conditions, primacy of economic

growth by stressing subsistence and self-determination as the basic rights upon which all

other rights depend.31 On a theoretical level, the official state-centred human rights concept is

still dominated by Marxist-Leninist ideology. According to the basis-superstructure model,

the legislative monopoly of the State, and the instrumental character of law, human rights are

not understood as inherent and inalienable rights based on human dignity but as being derived

from and granted by the state as well as restricted by the level of economic development.32

Complementarity refers to a state’s appearance, intention and capacity to be in compliance

with international legal standards; specifically, if and how a state handles discrepancy

between non-local and local rules with regard to its structural organization and institutional

capacity.33 In political science literature, China is described as a ‘fragmented’ authoritarian

state.34 Socialist ideology is no longer a defining element, however, the party-state is

organised according to Leninist principles of a centralised socialist party dictatorship, a

central hierarchy of party organs with strict relations of subordination in all areas of 27 P. Potter, Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms and Practices, 2 Washington University Global Studies Review 119, at 147 (2002). 28 P. Potter, Selective Adaptation and Institutional Capacity, 61 International Journal 389 (2006). 29 P. Potter 2011 (note 26), 57-58. 30 A. Kent, China’s Human Rights in ‘the Asian century’, in: T. Davis and B. Galligan (eds.), Human Rights in Asia, 187, at 206 (2011). 31 Potter (note 25), at 710; Chen (note 3), at 169 and 172. L. Zhu, Chinese Practice in International Public Law 2007-2, 7 Chinese Journal of International Law 735, at 736 (2008). 32 L. Zhu, Chinese Practice in International Public Law 2009, 9 Chinese Journal of International Law 607, at 630 (2010); L. Zhu, Chinese Practice in International Public Law 2006, 6 Chinese Journal of International Law 475, at 481 (2007). 33 Biukovic (note 26), at 167. 34 On ‘fragmented authoritarianism’ K. Lieberthal, Introduction: The “Fragmented Authoritarianism” Model and Its Limitations, K. Lieberthal and D. Lampton (eds.), Bureaucracy, Politics, and Decision Making in Post-Mao China, 1 (1992).

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administration, police, judiciary, military, economy and society. The nomenclature system

enables the party to control access to all senior leadership positions in state and society, the

party system of internal discipline control provides senior party members with de facto

immunity from the judicial organs of the state and effective control and manipulation of

media contents silences dissent.35 This structure of the party-state poses significant limits on

certain civil and political rights. For example, there are severe restrictions of freedom of

speech. The single-party system must rely for its survival on the manipulation of public

opinion in order to silence public dissent from policy decisions of the party leadership, which

may otherwise develop into criticism of the system itself. With regard to personal integrity

rights such as the right to life, liberty of the person, prohibition of arbitrary detention and

torture, the state has a general interest in safeguarding such rights. However, unlawful

detention and torture is used as an instrument to discipline dissidents or human rights

lawyers.36 The party-state will not respect the right to a fair trial in ‘sensitive’ or ‘political’

cases, where the outcomes are predetermined by party organs and then implemented by

courts.37 Fundamental attributes of China’s political system are only partially compatible

with international human rights norms. Hence, China endorses only such human rights that

are consistent with its state-centred view on human rights and the international community’s

efforts to socialize China into accepting human rights were only successful in those areas,

where rights acknowledge the power of the party-state.

Legitimacy relates to the acceptance of international law by local communities and the

acceptance of China within the international community.38 Legitimacy concerns towards the

international community are evident in the PRC Government’s statements that expressly

recognize the universality of human rights and present domestic practice as in conformity

with international human rights standards.39 The yearly publication of China’s ‘Human

Rights Record of the United States’ in response to the United States State Department’s

Human Rights Report is directed towards both an international and local audience in order to

balance human rights criticism that is directed against the PRC.40

35 S. Heilmann, Das politische System der Volksrepublik China, at 66 (2004). 36 Amnesty International, Against the Law: Crackdown on China’s Human Rights Lawyers Deepens (2011). 37 Peerenboom (note 4), 90-99. 38 Potter (Note 27), at 160. 39 L. Zhu, Chinese Practice in Public International Law: 2011, 11 Chinese Journal of International Law 541, 567-568; L. Zhu, Chinese Practice in Public International Law: 2008, 8 Chinese Journal of International Law 493, at 517 (2009). 40 Chinese Information Office of the State Council, Full Text of Human Rights Record of the United States in 2011, available at: http://www.gov.cn/misc/2012-05/25/content_2145654.htm; the National Report on Human Rights (2012-2015) was issued in June 2012, available at: http://news.xinhuanet.com/english/china/2012-06/11/c_131645029.htm.

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C. Universal Periodic Review as an Indicator of China’s Impact on International

Human Rights

The Human Rights Council replaced the Human Rights Commission in 2006, after it had been

criticised for politicization and selectivity with which it allegedly monitored human rights.41

The periodic review mechanism, which evaluates regularly the human rights performance of

all states, is the most significant change that was introduced to the mandate of the Human

Rights Council.42 The UPR is a peer-based assessment of human rights performance that

aims at improving adherence to shared norms, where states give policy recommendations to

each other.43 The Resolution authorizing the establishment of the UPR points out that the

review should ensure equal treatment with respect to all states and should be conducted in a

co-operative, constructive, non-confrontational and non-politicized manner.44

The benchmarks that are used as a basis of the review are a combination of universal and

country-specific standards. They include the UN Charter, the Universal Declaration of Human

Rights, human rights instruments to which the relevant state is a party, voluntary

commitments made by states; international humanitarian law, as far as it is applicable, will be

taken into account. The first step in the process of the UPR is the interactive dialogue in the

Working Group, during which the state under review presents its national human rights report,

replies to questions raised by other states and offers concluding remarks. Before the Working

Group session, the national report of the state under review is issued together with a

compilation of information contained in the reports of treaty bodies, special procedures and

other UN official documents and a summary of other reliable information provided by

relevant stakeholders such as NGOs and national human rights institutions.45 The Working

Group adopts a report that is factual and based on the proceedings, reflecting the

recommendations of the delegations during the interactive dialogue. States under review will

communicate to the Council whether they accept or reject a recommendation. The report of

the Working Group is then adopted at the plenary session of the Council. The review process

41 E. Dominguez-Redondo, The Universal Periodic Review of the UN Human Rights Council: An Assessment of the First Session, 7 The Chinese Journal of International Law 721, at 722 (2008). 42 The Council was established by UN General Assembly Resolution 60/251 on 15 March 2006. M. Lilliebjerg, The Universal Review of the UN Human Rights Council – An NGO Perspective on Opportunities and Shortcomings, 26 Netherlands Quarterly of Human Rights 311 (2008); J. Vengoechea-Barrios, The Universal Periodic Review: A New Hope for International Human Rights Law or a Reformulation of Errors of the Past, 12 Revista Colombiana de Derecho Internacional 101 (2008); B. Rudolf, United Nations Commission on Human Rights/United Nations Human Rights Council, Max Planck Encyclopedia of Public International Law (2008). 43 E. MacMahon/M. Ascherio, A Step Ahead in Promoting Human Rights? The Universal Periodic Review of the UN Human Rights Council, 18 Global Governance 231, at 232 (2012). 44 UN General Assembly, Resolution 60/251, Human Rights Council, UN doc. A/RES/60/251 (2006), para. 4. 45 Human Rights Council, Resolution 5/1 Institution-building of the United Nations Human Rights Council, UN doc. A/HRC/5/1 (2007), Annex, para. 1.

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is followed by an implementation phase during which the commitments made by the states

and accepted recommendations are implemented. The following review is then used to assess

the progress between the two reviews. The first cycle of the UPR was completed in October

2011. About 73 per cent of over 21,350 recommendations made in the first twelve sessions of

the UPR were accepted by the states under review, about 15 per cent were rejected and about

12 per cent received an ambiguous answer.46

In the initial discussions on the establishment of the HRC, China was not very active due to

its earlier success in diminishing human rights pressure in the Human Rights Commission.

Beijing entered the negotiations in order to object membership criteria that held states to

particular standards, country-specific approaches to human rights, strong NGO participation

and binding follow-up action in the UPR. The Chinese Government attempted to gain control

over UN Special Procedures, restricting the human rights advisory body and confidential

complaints procedure and supported a redistribution of seats in favour of Asian and African

states. China also tried, however unsuccessfully, to introduce a rule that required

country-specific resolutions to be sponsored by one third of the HRC and passed by two thirds.

In co-operation with states that share its human rights views, the PRC was successful in

resisting the proposal to elect members of the HRC by two thirds of the General Assembly

and to have specific membership criteria.47

The global intergovernmental peer review of the UPR is particular suitable to serve as an

indicator measuring the impact of China’s official human rights position on the international

human rights order. This is due to the evolutionary, dynamic, open and consensual approach

of the review mechanism that relies on positive reinforcements and inducements.48 Compared

to reporting procedures before human rights treaty bodies, the UPR possesses a stronger

interactive element and has more political weight than review by an expert’s body.49 The

open structure of the UPR allows states under review to promote their peculiar interpretations

of human rights. States receive immediate feedback from the international community in the

form of comments and recommendations, which in turn indicates indifference, support of or

opposition to certain interpretations of human rights. Moreover, the response to statements

and recommendations of the state under review or the statements and recommendations that

the relevant state makes, when other states are under review, are also important indicators. 46 Statistics available at: http://www.upr-info.org/database/statistics/index.php?cycle=1. 47 Inboden/Chen (note 6), at 54. 48 McMahon/Ascherio (note 43), at 234. 49 C. Tomuschat, Universal Periodic Review: A New System of International Law with Specific Ground Rules, U. Fastenrath et al. (eds.), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma 610, at 616 (2011).

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Such reactions of the state under review can indicate whether a state follows a power-oriented

approach that is mainly concerned with avoiding criticism of its own human rights situation.

On the other hand, the responses can display a norm-oriented approach that applies a

consistent interpretation of human rights or a combination of power-oriented and

norm-oriented behaviour.

D. Legal Relevance of Universal Periodic Review

As long as China is not in a position to translate its human rights preferences into customary

international law or treaty law, it can only continue using international fora to voice its

dissenting human rights views. What are possible legal effects of China’s official statements

in the UPR framework that challenge the established interpretation of international human

rights? The UPR as a non-confrontational mechanism appears to be purely political in nature

and it is not clear what legal effects the review can produce. It is argued that when a state

accepts a recommendation under the UPR, the relevant state agrees to be assessed on the

implementation of the accepted recommendation.50 On the other hand it is feared that states

would undermine their international human rights obligations when they reject

recommendations.51 However, the rejection of a recommendation in the UPR mechanism

cannot be interpreted as a withdrawal from the obligation of an international treaty. The

rejection of a recommendation only constitutes the objection to the monitoring of a certain

obligation under the UPR mechanism.52 However, China’s permanent and consistent illiberal

counter discourse towards established human rights may diminish the possibility that such

human rights develop into jus cogens.53

Given that almost all states participate in the UPR and are represented at ministerial level,

documents such as a state’s national report can be treated as evidence of a state’s opinio juris

on human rights.54 If the precondition is accepted that clear evidence of opinio juris

minimizes the requirement of consistent state practice,55 then the UPR could accelerate the

50 E. Dominguez-Redondo, The Universal Periodic Review – Is there Life Beyond Naming and Shaming in Human Rights Implementation?, New Zealand Law Review 673, at 678 (2012). 51 M. Nowak, It’s Time for a World Court of Human Rights, in: M. Bassiouni and W. Schabas (eds.), New Challenges for the UN Human Rights Machinery, 17, at 24 (2011). 52 Dominguez-Redondo (note 50), at 703. 53 Kinzelbach (note 15) 331-332; Potter (note 25), at 711; D. Shelton, Normative Hierarchy in International Law, 100 American Journal of International Law 291 (2006). 54 R. L. Blackburn, Cultural Relativism in the Universal Periodic Review of the Human Rights Council, 2011/3 ICIP Working Papers 7, at 14 (2011). 55 M. Shaw, International Law, 75-76 (2008); D. Boucher, The Recognition Theory of Rights, Customary International Law and Human Rights, 59 Political Studies 753, at 760 and 763 (2011); R. Baker, Customary International Law in the 21st Century: Old Challenges and New Debates, 21 The European Journal of International Law 173 (2010).

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forming of new customary law.56 If a state accepts a recommendation though there is no

corresponding obligation under public international law, the acceptance may be interpreted as

a binding unilateral act, which establishes an autonomous obligation of the relevant state.57

Since China has not yet ratified the International Covenant on Civil and Political Rights

(ICCPR), it could be argued that the PRC Government enters into new binding human rights

commitments via the UPR if it accepts recommendations that correspond to rights under the

ICCPR.

E. China’s Statements in the Universal Periodic Review

The review of China was held on 9 February 2009 and the outcome of the review was adopted

by the HRC on 11 June 2009. The HRC selected Canada, India and Nigeria as the group of

rapporteurs (troika) to facilitate the review of China.58 115 states expressed their intention to

participate in the interactive dialog. Whereas the representatives of 60 states could participate

in person, 55 states submitted comments and questions via the extranet.59

I. China’s National Report

The National Report is the first step in the interactive process. The drafting of the Report is

fully under the control of the state under review. On China’s basic position on human rights,

the Report noted: “China respects the principle of the universality of human rights and

considers that all countries have an obligation to adopt measures continuously to promote and

protect human rights in accordance with the purposes and principles of the Charter of the

United Nations and the relevant provisions of international human rights instruments, and in

the light of their national realities. The international community should respect the principle

of the indivisibility of human rights and attach equal importance to civil and political rights

and economic, social and cultural rights as well as the right to development. Given differences

in political systems, levels of development and historical and cultural backgrounds, it is

natural for countries to have different views on the question of human rights. It is therefore

important that countries engage in dialogue and cooperation based on equality and mutual

respect in their common endeavour to promote and protect human rights.”60 It was further

56 C. Dahlmann, The Function of Opinio Juris in Customary International Law, 81 Nordic Journal of International Law 327 (2012); K. Gallant, Use of Comparative Law in Determining the Customary International Law of Human Rights, 24 Florida Journal of International Law 429, 430-433 (2012). 57 Dominguez-Redondo (note 50), at 704. 58 Report of the Working Group on the Universal Periodic Review: China, Human Rights Council, 11th Session, Agenda Item 6, UN doc. A/HRC/11/25 (2009), para. 1 and 2. 59 R. Smith, “To see Themselves as Others see Them”: The Five Permanent Members of the Security Council and the Human Rights Council’s Universal Periodic Review, 35 Human Rights Quarterly 8, at 16 (2013). 60 National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1: China, Human Rights Council, Working Group on Universal Periodic Review, 4th Session, UN

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stated that recommendations by human rights treaty bodies are accepted and implemented “in

the light of China’s national realities”.61 Though these statements accept the universality of

rights on an abstract level, they emphasise a relativist position when it comes to the concrete

implementation of human rights standards on the domestic level.

The progress in the enjoyment of human rights after China embarked on its reform path in

1978 is linked to economic growth and the achievement of a level of ‘relative prosperity’.62

With regard to the pending ratification of the ICCPR, which China signed in 1998, it was said

that legislative, judicial and administrative reforms are underway to “create the conditions for

the early ratification”.63 In accordance with a Marxist perception of rights, these statements

link the level of protection of individual rights to the level of economic development. Further,

these statements imply a justification for denying or restricting individual rights.

The presentation of China’s institutional safeguards for human rights was drafted in very

general terms. It attempts to give the impression of a multiparty democratic system with

independent courts and regional autonomy of ethnic minorities.64 This section of the National

Report elaborated on the system of people’s congresses with competitive elections and direct

elections at county and township levels. However, it does not mention that elections at higher

levels are indirect elections and that electoral lists are prepared under tight control of the

Communist Party. This part of the National Report was drafted in such an unspecific and

selective manner that the uninformed reader assumes compliance with international standards

of governance. Presenting the constitutional system as complying with universal standards of

good governance is aimed at legitimacy building on the international level.

The National Report then turned to economic, social and cultural rights.65 It stated that the

government gives top priority to realizing the rights to subsistence and development.

Economic growth and poverty alleviation that meets the poverty reduction target set in the

UN Millennium Development Goals (‘MDG’) form the centre of this part. The subsequent

section described developments in the areas of the right to work, social security, housing,

education and health by referring to new legislation, statistics, policies, plans and strategies

that give a very positive account of achievements in those areas. This positive account was

complemented by and contrasted with the section on ‘Difficulties and Challenges’, which doc. A/HRC/WG.6/4/CHN/1 (2008), para. 6. 61 Ibid, para. 11. 62 Ibid, para. 7. 63 Ibid, para. 11; on the PRC Government’s efforts to bring national legislation in line with the ICCPR: B. Ahl, Exploring Ways of Implementing International Human Rights Treaties in China, 28 Netherlands Quarterly of Human Rights 361, at 363 (2010). 64 National Report (note 60), para. 13-18. 65 Ibid, para. 19-41.

13

emphasised imbalances in the development between urban and rural areas, unemployment,

underdeveloped social security systems and public health services as well as the shortcomings

in the fields of environmental protection, work and food safety.66 Under the heading ‘Future

Objectives’ the PRC Government introduced its National Human Rights Action Plan for

2009-201067 and other programmes and development plans to tackle problems in the areas of

economic and social rights.68

The section on civil and political rights focused on personal integrity rights such as the right

to life, freedom of the person, prohibition of torture and the right to fair trial.69 It also

commented on the freedom of religious belief and the freedom of speech and the ‘information

media.70 With regard to the right to life it was highlighted that China controls the application

of the death penalty strictly by means of a Supreme People’s Court mandatory review

procedure of death penalty cases. The new policy of ‘kill fewer, kill cautiously’ has indeed

led to better supervision of death penalty trials and most probably also to a reduction of the

number of death sentences.71 On freedom of the person and prohibition of torture the Report

listed new and amended legislation and made very general statements such as that a certain

“mechanism of checks and balances can effectively supervise and restrict the exercise of such

power”72 or that the “total number of cases involving the extortion of confession by

torture … is on the decline in China”.73 The report on freedom of religion and freedom of

expression only included very general statistical data such as how many followers of different

faiths there are in China or how many copies of the Bible have been published.74 The Report

referred only vaguely to political reform, when it mentioned “more extensive citizen

participation” or “democracy and the rule of law”.75 The Report listed the fundamental rights

that are enshrined in the Chinese Constitution and referred to “250 laws relating to the

protection of human rights” that were enacted by the NPC and its Standing Committee.76 The

only paragraphs that admitted problems in the area of civil and political rights criticised a low

level of human rights awareness of local government officials, negligent law enforcement and

66 Ibid, para. 80-89. 67 Information Office of the State Council of the People’s Republic of China, National Human Rights Action Plan of China (2009-2010), available at: http://english.gov.cn/official/2009-04/13/content_1284128.htm. 68 National Report (note 60), para. 90-100. 69 Ibid, para. 42-54. 70 Ibid, para. 55-62. 71 S. Trevaskes, China’s Death Penalty: The Supreme People’s Court, the Suspended Death Sentence and the Politics of Penal Reform, British Journal of Criminology, doi: 10.1093/bjc/azt002 (2013). 72 National Report (note 60), para. 46. 73 Ibid, para. 50. 74 Ibid, para. 57 and 58. 75 Ibid, para. 7. 76 Ibid, para. 10.

14

cases of miscarriage of justice.77 The PRC Government also made a subsequent statement

during the interactive dialogue that expressly linked the guarantee of civil and political rights

to democracy, institution building and the rule of law.78 However, this statement is rather an

exception of the approach that generally links infringements of rights to a lack of ‘awareness’

or ‘improper education’ of government officials. Moreover, the report devoted a chapter to

the protection of the rights of special groups such as women, children, persons with

disabilities and ethnic minorities.79

II. China’s Reactions to Recommendations

During the interactive dialogue, 60 states made statements and most of them gave specific

recommendations.80 Whereas ‘Western’ states recognized the overall progress in China’s

human rights situation, they also made specific recommendations in areas such as death

penalty, torture, administrative and legal reform, enforced disappearances, rights of women

and children, rights of ethnic minorities, rights of persons with disabilities, non-discrimination,

freedom of expression, media regulations, freedom of religion, trade unions and UN Special

procedures. Other states, mainly from the Asian and African regions commended the Chinese

Government’s efforts and took a soft approach in their recommendations by either just

requesting the continuation of certain policies or the sharing of information.

China issued its first national human rights plan (2009-2010) on 13 April 2009 elaborating on

the domestic implementation of international human rights obligations.81 With regard to civil

and political rights, China accepted the recommendation to “create conditions for the early

ratification of the ICCPR”,82 “in accordance with its national realities to proceed with

legislative, judicial and administrative reform to create conditions permitting ratification of

the ICCPR”, 83 and “analyse the possibility of ratifying the ICCPR”. 84 However, the

following recommendations were rejected: to ratify the ICCPR “as quickly as possible and

with minimal reservations,”85 to “state a precise calendar for ratification and adoption of

necessary measures,”86 to ratify the ICCPR “as soon as possible and bring legislation into

77 Ibid, para. 89. 78 Report of the Working Group on the Universal Periodic Review: China (note 58), para. 61. 79 Ibid, para. 63-76. 80 For an overview of China’s general responses to recommendations see: UPR Info, Responses to recommendations – China, available at: http://www.upr-info.org/IMG/pdf/recommendations_to_china_2009.pdf; R. Smith, Equality of Nations “Large and Small”: Testing the Theory of the Universal Periodic Review in the Asia Pacific, 2 Asia-Pacific Journal on Human Rights and the Law 36 (2011). 81 Information Office of the State Council of the People’s Republic of China, (note 67). 82 Report of the Working Group (note 58), para. 114, No. 1 (Sweden). 83 Ibid, (Algeria). 84 Ibid, (Argentina, Brazil, Austria). 85 Ibid, para. 117, 27 (e) (Australia). 86 Ibid, para. 117, 56 (b) (France).

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line with its provisions,”87 “reflect concrete steps towards ratification”88 or to “release a clear

timetable for work towards ICCPR ratification”.89 With regard to right to life, China accepted

the recommendation to “continue to implement the policy of strictly controlling and applying

the death penalty in the light of its national realities.”90 The recommendations by various

countries to abolish the death penalty, to reduce the number of crimes to which the death

penalty can be imposed and to publish figures on executions, death sentences and the

Supreme People’s Court review procedure were all rejected.91 Yet it is interesting to note,

that the PRC Government accepted a recommendation on handling the death penalty although

China has not assumed any legal obligations under public international law with respect to the

death penalty.92 China only accepted recommendations that fit into its ‘sequencing argument’

namely that civil and political rights are granted by the state once a certain level of economic

development is achieved. All recommendations were rejected that did not express respect for

the requirement that the state has to provide those conditions before civil and political rights

can be granted.

China accepted the recommendation to “push forward reform of re-education through labour

according to its national realities”93 whereas it rejected all recommendations that requested to

abolish re-education through labour. 94 Again, the acceptance depends on whether the

recommendation describes the relevant right as conditioned by “natural realities” and gives

the Chinese state enough leeway to determine the specific contents of the suggested reform.

All other recommendations regarding civil and political rights such as freedom of expression,

media regulations, and freedom of religion were rejected.95 Where China faced severe

criticism in the area of political rights, it rejected criticism as ‘politicised’ and attempted to

marginalize such states as belonging to a group of ‘few countries that make ill-founded

allegations’.96 However, recommendations on human rights awareness campaigns, technical

assistance and advisory services in the field of human rights, training programmes in human 87 Ibid, para. 117, 30 (b) (Netherlands). 88 Ibid, para. 117, 83 (g) (New Zealand). 89 Ibid, para. 117, 42 (a) (United Kingdom and Northern Ireland). 90 Ibid, para. 117, No. 30 (Egypt). 91 Ibid, para. 117, 27 (b) (Australia), 86 (b) (Austria), 95 (d) (Brazil), 28 (c) (Canada), 56 (c) (France), 43 (e) (Germany), 96 (a) (Italy), 38 (b) (Mexico), 83 (c) (New Zealand), 31 (b) (c) (Switzerland), 42 (b) (United Kingdom and Northern Ireland). 92 C. Tomuschat, Universal Periodic Review: A New System of International Law with Specific Ground Rules, U. Fastenrath et al. (eds.), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma 610, at 613 (2011). 93 Report of the Working Group (note 58), para. 117, No. 31 (Sudan). 94 Ibid, para. 117, 28 (d) (Canada), 43 (a) (Germany), 82 (e) (Czech Republic). 95 Ibid, para. 117, 27 (d), (e) (Australia), 82 (b) (Czech Republic), 97 (Hungary), 92 (b) (Sweden), 56 (a) (France), 43 (g), (h) (Germany), 96 (b) (Italy). 96 Ibid, para. 60 and 113.

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rights for judges, lawyers and prison personnel were accepted.97 The acceptance of such

recommendations is in line with the tradition of connecting violations of civil and political

rights to a low level of ‘human rights awareness’ among government officials and to counter

abusive human rights practices by ‘educational measures’ rather than by structural reforms.

In respect of UN Special Procedures, China rejected the recommendation to issue a standing

invitation to UN Special Rapporteurs.98 However, the recommendation to invite Special

Rapporteurs dealing with economic and social rights was accepted. 99 More general

recommendations to support and protect children, women and persons with disabilities were

accepted.100 However, the recommendations to “analyse the possibility of ratifying the

Protocol to Prevent, Suppress and Punish Trafficking of persons”, to adopt specific legislation

on domestic violence and to withdraw the reservation to Art. 6 of the Convention on the

Rights of the Child (right to life) were rejected.101 Recommendations on the rights of ethnic

minorities, particular in Tibet, were also rejected.102 Recommendations on economic and

social rights such as economic and social development in general, access to health and

education, social security system, poverty alleviation were all accepted.103

All in all, the PRC Government accepted 42 and rejected 50 recommendations.104 The

rejected recommendations originated mostly from European or Latin American Governments

as well as from Australia and New Zealand.105 No recommendations from Asian or African

countries were rejected, which fits the general pattern that the acceptance rate between those

groups of states are relatively high as they take a soft approach towards recommendations.106

Given that across the board over 70% of recommendations were accepted in the first cycle,

China appears to be an exception as it rejected a relatively large number of recommendations.

A large number of rejections could either indicate that the Chinese Government just does not

care about the negative international image that is created by rejecting recommendations or

97 Ibid, para. 117, No. 7 (Germany, Jordan and United Arab Emirates). 98 Ibid, para. 117, 86 (e) (Austria), 27 (d) (Australia), 28 (h) (Canada), 96 (c) (Italy), 81 (b) (Latvia), 30 (c) (Netherlands), 42 (c) (United Kingdom and Northern Ireland). 99 Ibid, para. 117, No. 9 (Saudi Arabia). 100 Ibid, para. 117, No. 13 (Qatar), No. 14 (Mozambique), No. 15 (Yemen). 101 Ibid, para. 117, 84 (a) (Argentina), 79 (c) Finland. 102 Ibid, para. 117, 82 (f) (Czech Republic), 83 (e) (New Zealand), 31 (d) (Switzerland). 103 Ibid, para. 117, No. 16 (New Zealand), No. 17 (Morocco), No. 18 (Philippines), No. 19 (Zimbabwe). 104 Ibid, para. 114 and 117. 105 Ibid, Argentina, para. 84 (a); Australia, para. 27 (b), (c), (d), (e), (f), (g); Austria, para. 86 (b), (e); Brazil, para. 95 (b), (c), (d); Canada, para. 28 (c), (d), (e), (f), (g), (h); Czech Republic, para. 82 (a), (b), (c), (d), (e), (f), (g), (h), (i); Finland, para. 79 (a), (c); France, para. 56 (a), (b), (c), (d); Germany, para. 43 (a), (b), (e), (f), (g), (h); Hungary, para. 97 (a); Italy, para. 96 (a), (b), (c); Latvia, para. 81 (b); Mexico, para. 38 (a), (b); Netherlands, para. 30 (b), (c); New Zealand, para. 83 (a), (c), (d), (e), (g); Portugal, para. 85 (b); Sweden, para. 92 (a), (b), (c), (d), (e), (f), (g); Switzerland, para. 31 (a), (b), (c), (d); United Kingdom, para. 42 (a), (b), (d), (c). 106 Over 80% of recommendations are accepted within Asia, McMahon/Ascherio at 242.

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that it takes the consequences of accepting a recommendation seriously. This is inconsistent

with the general trend that states want to be seen as accepting most recommendations.107

A recent study has analysed how states use the UPR by introducing various categories of

action levels.108 The action level is indicated by the verbs contained in recommendations.

Recommendations that are not directed towards the state under review, request assistance

from other states, or require the state under review to share information demand the least

effort form the relevant state. Recommendations pointing out continuity in actions or policies,

or those that ask the state under review to consider certain changes increase the burden on the

state under review. A high action level is linked to recommendations that request specific

action and a lesser to those that require action that contains an attenuating or general element.

In the first six sessions of the first cycle, over two thirds of recommendations were clearly

action oriented.109 In contrast to the assumption that the UPR allows states to go beyond their

regional affiliations, the study concludes that “clear regional patterns exist that continue to

reflect the polarized nature of the contemporary international community”.110

With regard to action levels, the great majority of recommendations, which were rejected by

the PRC Government required unconditional and specific action such as reducing the scope of

application of the death penalty and publishing the number of executions. 111 All

recommendations with low action levels, which required the exchange of information or

emphasized the continuity of policies, were accepted or received general responses. Moreover,

all of the recommendations from Asian or African states were accepted. With regard to all

states participating in the first cycle of the UPR, more than half of the rejections related to

recommendations with the highest action level and about 50% of such recommendations

originated in Western European states.112 Insofar, recommendations towards China and

China’s reactions to certain action levels of recommendations fit the overall pattern.

III. China’s Statements and Recommendations with regard to Other States under

Review

China’s statements on the human rights performance of other countries focused nearly

exclusively on economic and social rights and the protection of vulnerable groups as well as

economic and social rights of vulnerable groups. In general, civil and political rights were just

107 Ibid, 240. 108 Ibid, 235-36. The first six HRC sessions including 8,116 recommendations under the UPR form the basis of this study. 109 McMahon/Ascherio (note 43), at 238. 110 Ibid, at 245. 111 Recommendation of the United Kingdom, Report of the Working Group (note 58), para. 42 (b). 112 McMahon/Ascherio (note 43), at 241.

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ignored. In most cases, China did not give any recommendations. For example, Belgium was

commended on its progress in eradicating poverty and ensuring the right to housing and

education as well as on its efforts in promoting gender equality, ensuring rights of migrants

and eradicating racial discrimination.113 China focused on Germany’s active measures of

integration and its anti-discrimination policies. 114 Estonia was commended on

anti-discrimination laws and measures to promote the right to work, rights of children and the

elderly. It was recommended to reduce the dropout rate of students.115 The PRC Government

raised with Western countries gender and equality issues, rights of minorities, racism,

intolerance, right to work and health of foreign migrants and minorities. Further, the PRC

Government often combined issues of discrimination and economic and social rights such as

the question on the access to work of disabled women in France.116 Australia is asked about

its specific measures adopted to protect indigenous people, foreign immigrants and ethnic

minorities from discrimination and against systematic racism in the media and the internet.117

Japan was reminded that the Special Rapporteur on contemporary forms of racism had

requested the Japanese Government to eliminate racial discrimination and xenophobia.118 The

PRC Government’s focus on discrimination and minority issues in liberal democracies fits a

general pattern in the interactive dialogue between Asian and African countries on the one

hand and European countries on the other. Across the board, about 40% of recommendations

to Western European countries related to migrants and over 20% to minorities.119 Moreover,

the Chinese Government has an interest to protect overseas Chinese who live in those

countries and may be victims of discrimination and racism.

Generally, China welcomed and commented positively on human rights plans of European

countries.120 National human rights action plans were a focus of interest because China uses

its own human rights action plans in order to demonstrate its implementation activities.

Moreover, such plans are mainly drafted to implement economic and social rights. China 113 Report of Working Group on the Universal Periodic Review, Belgium, Human Rights Council, 18th Session, UN doc. A/HRC/18/3 (2011), para. 87. 114 Report of Working Group on the Universal Periodic Review, Germany, Human Rights Council, 11th Session, UN doc. A/HRC/11/15 (2009), para. 33. 115 Report of Working Group on the Universal Periodic Review, Estonia, Human Rights Council, 17th Session, UN doc. A/HRC/17/17 (2011), para. 52. 116 Report of the Working Group on the Universal Periodic Review, France, Human Rights Council, 8th Session, UN doc. A/HRC/8/47 (2008), para. 19. 117 Report of the Working Group on the Universal Periodic Review, Australia, Human Rights Council, 17th Session UN doc. A/HRC/17/10 (2011), para. 16. 118 Report of the Working Group on the Universal Periodic Review, Japan, Human Rights Council, 8th Session UN doc. A/HRC/8/44 (2008), para. 18. 119 McMahon/Ascherio (note 43), at 243. 120 Report of the Working Group, France (note 116), para. 19; Report of Working Group on the Universal Periodic Review, Spain, Human Rights Council, 15th Session, UN doc. A/HRC/15/6 (2010), para. 59.

19

sometimes recommended states under review to accede to international human rights

conventions. Portugal was recommended to accede “as soon as possible” to the International

Convention on the Rights of persons with Disabilities.121 China also criticised the United

States for not accessing to a number of important human rights conventions.122

The PRC praised developing countries for their economic development strategies and plans to

improve people’s livelihood and focused on gender equality and education issues. The overall

tone towards developing countries was very positive. In general, China did not make

statements on political rights and did not relate to rights in their function as individual

entitlements that can be enforced against the state. In this aspect, Vietnam is an exception as it

was recommended to “take active measures” to reduce income disparities and to “continue to

help ethnic groups to increase awareness of their rights and responsibilities so that they can

improve their living conditions and better enjoy their rights”. 123 However, the

recommendation referred in an unspecific matter to ‘rights’, only the context and the use of

‘rights’ together with ‘responsibilities’ and educational measures suggest that the Chinese

Government related to political rights. Interestingly, certain states such as Cuba and Malawi

were recommended to share their “experiences and good practices” with regard to the

treatment of prisoners and prisons that serve the function of “human improvement centres”.124

It is assumed that China makes such recommendations in order to portrait its own ‘education

through labour’ camps in a more positive light as forming part of an ‘international practice’.

In terms of action levels of recommendations China took a soft approach towards states

regardless of the region the state belongs to. The PRC Government often just asked to share

information or to elaborate on a certain aspect on the National Report of the state under

review. For example, China asked Belgium “to elaborate on the specific measures for the

right to housing and education to be enjoyed equally by the Roma and other minority

groups”.125 The motivation for such an approach may be the assumption that China will be

121 Report of the Working Group on the Universal Periodic Review, Portugal, Human Rights Council, 13th Session, UN doc. A/HRC/13/10 (2010), para. 27. 122 Report of the Working Group on the Universal Periodic Review, United States, Human Rights Council, 16th Session UN doc. A/HRC/16/11 (2011), para. 21. 123 Report of the Working Group on the Universal Periodic Review, Vietnam, Human Rights Council, 12th Session, UN doc. A/HRC/12/11 (2009), para. 36; Namibia is recommended to “continue to take effective measures to eliminate social inequalities”, Report of the Working Group on the Universal Periodic Review, Namibia, Human Rights Council, 17th Session, UN doc. A/HRC/17/14 (2011), para. 44. 124 Report of the Working Group on the Universal Periodic Review, Cuba, Human Rights Council, 11th Session UN doc. A/HRC/11/22 (2009), para. 66; Report of the Working Group on the Universal Periodic Review, Malawi, Human Rights Council, 16th Session, UN doc. A/HRC/16/4 (2011), para. 54. 125 Report of the Working Group, Belgium (note 113), para. 87.

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treated equally when the relevant state assesses China’s human rights situation. Another

reason is that states often try to make their recommendations easily acceptable for the state

under review since a rejected recommendation has no effect at all.126

China’s behaviour fits that of other Asian states insofar as the number of recommendations is

low compared to the number of recommendations given by the group of Western European

states.127 One exception in terms of action levels is China’s recommendations to the United

States. The PRC Government recommended to “modify the definition of the discrimination in

the law to bring it in line with … international standards” and to “quickly close down

Guantanamo prison”.128 This exception in China’s behaviour in the interactive dialogue of

the UPR can be explained by the international factor of the perception of international human

rights, namely the view that human rights criticism of China is driven by United States power

politics.129 Hence, China’s recommendations are grounded in a power-oriented approach

towards the United States and deviate from the prevailing norm-oriented behaviour that

follows a soft approach on recommendations and emphasises economic and social rights. F. Other Activities with Relevance to Development of International Human Rights

Apart from making statements in various international human rights mechanisms, China has

actively participated in promoting the adoption of declarations that place emphasis on its

human rights approach. The most prominent example is the Bangkok Declaration of 1993 that

was adopted by Asian governments prior to the Vienna World Conference on Human

Rights.130 China played a leading part in drafting the Declaration. The document presented an

Asian interpretation of human rights that challenged the applicability of universal standards of

human rights in Asia.131 The Declaration criticised the emphasis of civil and political rights,

selectivity, politicisation, application of a double standard in human rights implementation

and imposition of “incompatible values”. The right to development was regarded as “an

126 McMahon/Ascherio (note 43), at 239. 127 Ibid, at 237. 128 Report of the Working Group, United States (note 122), para. 92.63, 92.157. 129 Potter (note 25) at 160. 130 Final Declaration of the Regional Meeting for Asia of the World Conference of Human Rights, Bangkok, 29 March – 2 April 1993, World Conference on Human Rights, Report of the Regional Meeting for Asia of the World Conference of Human Rights, 7 April 1993 UN doc. A/CONF.157/ASRM/8 A/CONF.157/PC/59 (1993). 131 M. Davis, Chinese Perspectives on the Bangkok Declaration and the Development of Human Rights in Asia, 89 American Society of International Law 158 (1995); K. Boyle, Stock-taking on Human Rights: The World Conference on Human Rights, Vienne 1993, 53 Political Science 79, 86-87 (1995); D. Otto, Rethinking the ‘Universality’ of Human Rights Law, 29 Columbia Human Rights Law Review 1 (1998); C. Cerna, Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts, 16 Human Rights Quarterly 740 (1994).

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integral part of fundamental human rights” and economic and social progress as a

precondition of democracy and human rights. Though the Declaration accepted the

universality of human rights, it stated that human rights “must be considered in the context of

a dynamic and evolving process of international norm-setting, bearing in mind the

significance of national and regional particularities and various historical, cultural and

religious backgrounds”.132

The Chinese government also participated in the promotion of a Declaration on Human Social

Responsibilities, the draft of which acknowledged that the “insistence on favouring the rights

of the individual leads to conflicts, divisions and interminable disputes” and built on the

indivisibility of rights and obligations. 133 After a motion was introduced to the UN

Commission on Human Rights in 1999, a UN study on human social responsibilities was

undertaken and a Special Rapporteur appointed. The Special Rapporteur presented a pre-draft

of a Declaration on Human Social Responsibilities in 2003 and comments of states were

invited. The proposed Declaration was eventually rejected in 2005.134 The EU and other

states opposed the Declaration because they saw it as an attempt to make human rights

conditional on the performance of duties and responsibilities to the community or the state.135

China’s active engagement in the process of the drafting of the Declaration can be seen as an

attempt to challenge the central concept of unconditional entitlement to human rights.136

China is also participating in the resolution presented by the Russian Federation that promotes

the respect of traditional values and human rights in the HRC.137 In the draft resolution of

February 2012 it was held that “all international human rights agreements … must be based

on, and not contradict, the traditional values of humankind. If this is not the case, they cannot

be considered valid.” It is further said that human rights recognition arises from “responsible

behaviour” by the individual. The latest resolution on this topic was adopted in September

2012, deciding to further study the possibility of recognition of traditional values within the

HRC.138 The additional study on this subject, published by the elected Human Rights

Advisory Committee in December 2012, was presented to the General Assembly,

132 Final Declaration of the Regional Meeting for Asia of the World Conference of Human Rights (note 130), para. 8. 133 UN Commission on Human Rights, 51st session, UN doc. E/CN.4/2003/105 (2003), Annex I. 134 UN Press Release ECOSOC/6174 (2005). 135 Commission of Human Rights, Summary Record of the 57th Meeting, UN doc. E/CN.4/2004/SR.57 (2004), para. 47-48. 136 K. Kinzelbach (Note 15), at 312. 137 UN Human Rights Council, 21st Session, Agenda Item 3, UN doc. A/HRC/21/L.2 (2012). 138 See UN press release of 27 September 2012, Human Rights Council adopts 10 resolutions on safe drinking water, preventable maternal mortality and use of mercenaries, available at: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12592&LangID=E

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emphasizing that against the background of the universal acceptance human rights traditional

values have to be considered in order to promote human rights on a local level, while

preventing any form of avoiding the implementation of human rights.139

G. Conclusion

With regard to legal effects of China’s participation in the UPR it is found that rejections of

recommendations do not affect the PRC’s legal obligations under human rights treaties. The

great majority of rejections concerned areas where the PRC has not yet undertaken treaty

obligations such as recommendations to reduce the number of crimes for which the death

penalty can be imposed or to establish a moratorium on the death penalty. Yet it is interesting

to note that China also accepted recommendations in such areas as the death penalty. This has

the effect that in the next review cycle the progress on this accepted recommendation will be

assessed. The possibility to accept new human rights standards under the UPR in an ad hoc

manner works in favour of the socialization in line with international norms. Although

China’s move towards a tighter control of death sentences originates in a domestic policy

change, linking it with the UPR will make it harder to reverse such domestic policies. On the

other hand, insistence on specific interpretations of human rights such as the subordination of

political rights to socio-economic development, which in turn is shared by a certain number of

other states, may diminish the possibility that certain rights develop into jus cogens.

The National Report clearly emphasises economic and social rights and largely ignores civil

and political rights or subordinates them to socio-economic development. The Report is

drafted along the lines of the official Chinese human rights concept and implicitly interprets

international human rights in the sense of this approach. This ‘relativist’ interpretation is

grounded in China’s particular perception of human rights and its distinct authoritarian

political system. Simultaneously, the Report also meets the need of legitimacy building by

pointing to the universality of human rights, international exchange and co-operation. It also

gives a general account of institutional structures and practices, which appear to comply with

international standards of good government. Considering the aspect of legitimacy, the PRC

Government is also obliged to embrace a universalistic view and present the situation on the

ground as complying with established international human rights standards.

China’s influence is also reflected in the change of tone of most statements and

recommendations. Most countries do not openly confront the Chinese Government on its

interpretation of human rights.140 Some states even echo Chinese political concepts such as

139 UN Human Rights Council, 22nd session, Agenda Items 3 and 5, UN doc. A/HRC/22/71(2012). 140 Kinzelbach (Note 15), at 332.

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that of a “harmonious society”.141 The fact that China faces less direct criticism enables it to

build a coherent counter-discourse as a basis of challenging international human rights norms.

Similar to the National Report, the interactive dialogue reflects the official state-centred

human rights perspective that regards civil and political rights as conditioned on economic

development.

China takes a soft approach in recommendations to other states under review regardless of the

region the state belongs to. The PRC Government often just asks to share information or to

elaborate on a certain issue. Statements and recommendations focus almost exclusively on

economic and social rights. In general, China’s human rights criticism towards other states is

guided by a norm-oriented approach that is consistent with its official human rights view. An

exceptional case is the review of the United States, where China followed a power-oriented

approach and made ‘hard’ recommendations at the highest action level.

141 Report of the Working Group (note 58), para. 33 (Algeria), 58 (Jordan), 50 (Vietnam).