China in the World: Human Rights Challenges and Opportunities

JBI on China in the World
At an expert conference convened by New York University School of Law & Human Rights in China on April 23, 2013, four distinguished human rights and law experts shared their insights: Michael H. Posner (roundtable facilitator), Professor of Business and Society, NYU Stern School of Business, and former U.S. Assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor; Jerome A. Cohen (panelist), Professor, NYU School of Law and Co-Director, NYU School of Law U.S.-Asia Law Institute; Felice D. Gaer (panelist), Director, AJC’s Jacob Blaustein Institute for the Advancement of Human Rights (JBI), and Vice-Chair, United Nations Committee Against Torture; and Fu Hualing (panelist), Professor, The University of Hong Kong, Faculty of Law.

JBI Director Felice Gaer analyzed progress made, opportunities created, and obstacles posed by China's human rights policy.

China’s impact on International human rights standards and implementation
Speakers: Michael H. Posner, Felice D. Gaer, Jerome A. Cohen

China in Africa, China in Asia, China and the Law of the Sea
Speakers: Felice D. Gaer, Michael H. Posner, Jerome A. Cohen, member of the audience

Transcript of JBI Director Felice Gaer’s Remarks

China’s impact on International human rights standards and implementation

Thank you, Mike. China's involvement with the United Nations and with the world on issues of human rights has progressed. It really has changed. A country which once followed Deng Xiaoping's advice—“calmly observe, cherish obscurity, never seek leadership”—is now often taking an active role on international human rights in the UN that no one ever imagined.

This assertiveness is not necessarily positive for human rights and the UN. Significantly, China has publicly acknowledged the universality of human rights. At the same time, it actively attempts to redefine what that universality is, and contests the applicability of human rights worldwide. It's a good political lesson. We have all witnessed how China contests human rights and its binding application. Yet, when challenged, China doesn't want to be alone. China joined the world in the 1993 Vienna World Conference on Human Rights in affirming that universality is absolute, while acknowledging that historical and regional and cultural and religious factors have to be taken into account. It affirmed that human rights are the first responsibility of governments, and universality must be followed. In itself, that's a really important development.

China has also ratified seven of the ten major human rights treaties. Those ratifications have often been accompanied by China’s engagement to try to change, or substantially limit, the universal reach of the treaties and what are the standards involved in each.

Chinese officials at the UN have always emphasized a hierarchy of rights. Specifically, China emphasizes economic, social, and cultural rights, and solidarity rights8, over civil and political rights. China argues that a country can only implement human rights when its level of development is high enough. So this economic and social rights approach limits the relevance and impact of rights, and questions universal standards of compliance. For China, human rights are therefore aspirational, rather than legally binding rights. Universal standards shift according to a state’s level of development. China thus downplays civil and political rights issues for itself and globally.

China is still not a party to the International Covenant on Civil and Political Rights. China signed it after tremendous efforts during the tenure of John Shattuck,9 your predecessor, some 15 or more years ago. But they have not yet ratified it. They are still studying it, refining laws, and perhaps looking for somequid pro quo—when China signed the treaty, the U.S. dropped a stand-alone resolution on China it had presented annually at the UN’s Commission on Human Rights.

The Chinese also emphasize collective rights over individual rights, and promote new solidarity rights as well. And in that process, they have tended not just to join with, but, in some cases, to lead together with Cuba and a number of other countries in a way that suggests a preference for weak human rights mechanisms, little or no country-specific scrutiny, and a strict limit on independent information sources used in the UN human rights system.

If I could turn the tables here a little bit, Mike, may I ask you to discuss events during your term as Assistant Secretary? China stepped up in front, organized several joint statements, and led a coalition in the UN publicly identifying the limits on political protests (during the Arab Spring). Another statement was on limiting the use of the Internet, declaring it shouldn't be used for nefarious purposes like terrorism. That kind of leadership was something they didn't do previously, but they obviously felt obliged by the uncertainty of the Arab Spring, recalling Poland in 1989, to say proactively that they (China) are in this system: “We are in these treaty bodies, we are in the Human Rights Council, and we intend to shape them in the way we want.”

China’s emphasis was on maintaining public order and control. My question is: why don’t more countries stand up to China’s problematic leadership in these human rights bodies?

Another of your predecessors told me how the U.S.—the Bush Administration—would go forward with the China resolutions at the UN (attempts to express concern on the human rights situation) that had been dropped at the end of the Clinton Administration. And he said the Chinese would come to them and say, “If you raise this issue, you will be alone.” And your predecessor said back, “We know that and we don't really care.” And he said that drove China’s diplomats crazy, because one of their important approaches is to also work together with others, never be alone, and to build those coalitions. So what we see is China’s tendency to do everything by consensus, a tendency in the Human Rights Council and other bodies to try to build this kind of support, and a rather feeble response by what I would call the pro-human rights countries—the pro-civil and political rights countries—in saying, “Wait a minute, we won't have that.” These rights-supporting countries are willing to talk about rights abuses in private. That's what the Chinese want: to bilateralize comparisons about compliance with rights, rather than universalize them. Chinese diplomats went around Geneva, meeting with Ambassadors before the first Universal Periodic Review in 2009 (the second one's coming up in October) and said, “Please raise any issues you want to raise with us, but do it in private.” The rest of the world has basically said okay, and has engaged in dialogues and private discussions.

What we aren't seeing is public opposition to rights abuses, and to weakening the human rights system, by rights-supporting governments in quite the way we would hope. The result, it seems to me, is that rights-supporting countries look weak, and China feels safe. It enables them to ignore human rights issues, ignore important cases—like Chen's nephew, like the 70 Arbitrary Detention Working Group cases that Sharon spoke about in the first panel, including cases where the Working Group has found the detentions to be in violation of international standards and norms. There seems to be an ability to just brush these things off. I think we are seeing a long-term strategy on the Chinese side of cherishing obscurity, but using visibility to weaken or limit the UN’s human rights bodies whenever needed. And we are seeing no strategy, or no visible strategy, on the other side. And you know, there is an old saying, “If you don't know where you are going, any road will take you there.” Is the U.S. now in that phase? I hope not.

China in Africa
Well, I’ll say a few words about Africa. Whether it’s Kinshasa, or South Sudan, or it’s any of the many other countries in the region, China’s investment is phenomenal. And with our own policy of sanctions and having convinced businesses from Canada, the U.S., and many other Western countries to pull out of places like Sudan, we have also provided an opportunity for extraordinary influence by China in those countries.

Same thing with Burma: China and India are doing lots of business there as the U.S. and others maintained the various sanctions. And to a certain extent, recognition of that has brought back a kind of, shall we say, more sophisticated engagement. I think Mike could talk to us a little bit about Burma and the China angle and it could be quite interesting. But China is making friends for China around the world and building leverage and also sources of resources. So, from a human rights point of view, sanctions in Africa and Chinese investment might be seen by some observers as having had some negative results.

But you could also see China’s involvement as a positive development. Mike asked earlier, “What about China’s leadership on Darfur and Sudan and other countries like that?” Consider the fact that China abstained on sending Darfur to the International Criminal Court (ICC) but was okay, later, about referring Libya. Of course, thousands of Chinese workers were evacuated from Libya during the crisis. Still, China did not block Libya being considered by the ICC.

This was no insignificant development; it was quite a change in China’s traditional approach to these international institutions. Is it because China is stepping up to the plate as a world power and recognizes its obligations, or is it out of self-interest to protect Chinese and China in these contexts? In a way, it doesn’t matter, because what we are seeing is a greater involvement with these international bodies concerned with rights. I think that those are important developments.

As to the Asian regional system, let’s see if the ASEAN system again gets off the ground. Here’s another case where Mike may have some greater insights into this than we do. But, the fact that we’re seeing China engaging internationally, and being concerned about these issues in the region—whether it’s North Korea or Burma or anywhere else—is, again, a different situation than we saw previously. China’s engagement in international human rights bodies in its early years were self-protective; their goal was to make sure there would be no criticism of China, no resolutions, no criticism, and that country criticism would be minimized in any way possible, so that existing international mechanisms would not be able to enforce rights. It became okay, after a while, to acknowledge that there are universal rights, but not to enforce those rights universally. And so the weaker the institutions, the better. What we’re seeing now, with the growth of these regional systems, is a certain seriousness in some of these regions. We should be nurturing that, it seems to me, in every such case.

I want to mention the economic growth model issue/question that was raised earlier. China is coming up before the UN Economic, Social and Cultural Rights Committee for a review of its compliance with the Covenant. China is coming up in the UN before the Universal Periodic Review in October for review of all of its compliance across the board. China doesn’t want to be criticized, whether it’s RTL or it’s the economic growth model. This is a time when voicing concern about these issues—whether it’s from the U.S. or South Sudan or Burma or anywhere else—is going to have more influence on China than it might have at other times. So, if we were looking for both challenges and opportunities, I think this is an opportunity—both in terms of the ASEAN region and in terms of these international forums where China is coming forward. Just as 70 cases were presented by HRIC to the Arbitrary Detention Working Group—and many were found to be violations of rights—if China changes the RTL system, there might not be those cases. It’s a time to try to see if that will happen.

Full Roundtable Transcript