Like sustainable development, Chinese promotion of human rights is seen as both a cause and a process – one that should be pursued at all times, but with an incremental approach resulting in changes that will be slow in coming. In the past three decades, China’s process of opening up has lifted 300 million people out of poverty. This is as much a human rights achievement as it is an economic one. China’s economic success combined with constitutional and administrative reforms, increased participation in UN human rights activities, and developments in the Chinese criminal justice system suggests that the nation is serious about making improvements to its human rights record. However, China is adamant that its perspective is in some ways intractably different from that of the west with regards to human rights.
There are four principal constitutional developments that have taken place over the last two-and-a-half decades that have the potential to improve human rights in China. First, a 1988 amendment to the Chinese constitution legitimizing the private economy resulted in an improvement in the humanitarian situation, at least for those able to take part in the subsequent economic expansion. This development was bolstered in 1993, when the Chinese constitution was amended to formally endorse a market economy. The third important constitutional change took place in 1999 when the rule of law was officially enshrined in the constitution. Finally, in 2004, China expressly endorsed human rights as such when a provision was added to the constitution saying, “The state respects and protects human rights.”
From these four developments, Judge Xue concluded that human rights are now a fundamental principle of the Chinese legal system. However, the Chinese constitution can never be applied directly; the Chinese legislature, the National People’s Congress (NPC), must promulgate all laws dealing specifically with rights. Thus, the Chinese legislature can essentially insert a “Notwithstanding the constitution” clause into pieces of legislation that directly contravene the constitution itself. This legislative feature makes the above-mentioned constitutional developments much less satisfying than they would be had they been contained in a constitution operating as the supreme law of the land.
Chinese administrative developments, on the other hand, seem to have produced much more concrete results. In 1982, China passed its law on civil procedure, which marked the beginning of the Chinese administrative law regime. The civil procedure law allowed citizens to sue state organs. Since the adoption of the law, there have been over 900,000 suits against the state. According to Judge Xue, 40 percent of these suits end with the state losing, and 25 percent of the suits end with the state paying damages. This administrative system provides for a mechanism to expose inefficiency and corruption, which in turn leads to a government more able to further the human rights of its citizens.
Judge Xue also cited an increase in participation in United Nations human rights activities as evidence that China is committed to human rights. Despite its history of being excluded from the international community, China has ratified most international treaties and conventions related to human rights. It is a state party to the Convention Against Corruption and even initiated the Treaty on the Rights of Persons with Disabilities. To ensure continued compliance with these international agreements, China submits regular reports to monitoring bodies.
Of all the areas mentioned by Judge Xue in her lecture of human rights, she was most open about the shortcomings of the Chinese criminal justice system. Though she noted that China has made substantial progress in this area, especially as it relates to the criminal code and capital punishment, she acknowledged that the criminal justice system “remains under criticism, both at home and abroad.”
The first positive development in the Chinese criminal justice system came in the form of the modernization of the Criminal Code that took place in 1997. The 1997 amendments to the code replaced the practice of “crime by analogy” with the more positivist principle of nulla crimen sine lege – the notion that “without the law, there is no crime.” Additionally, through the modernization of the code, the Chinese government embraced the ideas of proportionality between the crime and the punishment and equality before the law and sought to embody these two principles throughout the Criminal Code.
Similarly, developments related to capital punishment suggest that the Chinese government takes human rights into consideration when making laws. In 2007, the NPC passed a law requiring all death penalty cases to be reviewed by the Supreme Court, hopefully minimizing erroneous executions. In the last several years, thirteen crimes have been removed from the list of capital offenses, and capital punishment has been abolished altogether for persons over the age of 75. These developments were a direct response to changes popular opinion with regards to human rights – an opinion to which Judge Xue would argue the Chinese government is finely tuned and highly responsive.
However, Judge Xue finished her discussion of capital punishment with a statistic, which calls into question the nature of the Chinese government’s relationship to public opinion when she stated that a Chinese study found that 99 percent of the Chinese population was against abolishing the death penalty. That statistic more closely resembles propaganda from the politburo than sound social science, as there are few policy positions with which 99% of people are in agreement. An issue as controversial as the death penalty is not likely to be one of them. Citing this statistic marked the only time that I, and many of my colleagues at the Academy with whom I spoke, questioned the veracity of Judge Xue’s presentation.
This questionable statistic aside, Judge Xue made an accurate assessment of the differences between the Chinese and western approaches to human rights and offered a legitimate criticism of the western perspective.
Judge Xue distinguished what she sees as the difference between the Chinese and Western approaches to human rights when she said that the Chinese government believes that “human rights is not a heavenly principle, but an actual set of policies.” In her view, the western treatment of human rights is akin to a frequently misstated quotation falsely attributed to Marie Antoinette during the French Revolution that “If [the peasants] have no bread, let them eat cake.” Despite the historical misrepresentation, the idea behind the quote is that the west, unable to sympathize with the realities of a developing country, calls for instantaneous improvements in what it sees as an unacceptable human rights situation from an uninformed and unrealistic position. It simply does not make sense to condition international recognition on full realization of human rights because no country has fully realized all human rights for all of its citizens. Indeed, such a full realization may not even be possible.
This fundamental misunderstanding between the developing and developed worlds has led to what Judge Xue described as a “politicization” of human rights. This politicization is evidenced by the fact that, while “no western country has ever been sanctioned” by the United Nations for human rights violations, eleven motions have been tabled against China. Zero of the eleven tabled motions were passed, suggesting, according to Judge Xue, that the motions were the result of domestic political pressure.
Judge Xue argued that western countries recognize China’s participation in the field of human rights, but they take a western view as to the substance of that participation, seeing China as a challenge to heretofore-dominant western values. This position in wrongheaded, she continued, because China’s position on cultural relativism is not a challenge to western values, but rather an assertion that what may be perfect for one culture will be imperfect for others.
China is committed to moving forward in the area of human rights by adhering to a balanced approach between human rights and duties to society and emphasizing local conditions. China asserts its right to develop in the realm of human rights, which encompass economic, social, and cultural rights and involve all aspects of Chinese society. It insists on doing so in a way that works in the context of Chinese culture and history. In concluding her lecture, Judge Xue implored her audience to bear in mind the unchallenged fact that the development of human rights standards is highly correlated to the wealth of a nation. As such, the west can expect an increase in human rights protection in the future.
