Human Rights in China

Human rights are an issue that has been much debated around the world, although due to the variety of issues involved, there has been a certain focus on Chinese human rights. The notion of human rights itself has been defined as being rights one has as a human being¹ and arguably originate from the text of the Magna Carta, created in 1215 by King John.² Other important instruments are the United States Declaration of Independence and France's Declaration of the Rights of Man, which turned ideas of rights into official statements³ that people were entitled to life, liberty and property.⁴

The Western idea of what human rights entails is protection under the law, democracy, economic freedom of choice and freedom of mind, spirit or will.⁵ These standards may be found in instruments such as the UN Charter and the Universal Declaration of Human Rights (UDHR) and a number of other international agreements and treaties.

The UDHR contains thirty articles outlining rights, and some of the most important are: the right to life, liberty and security of person⁶, a right not to be subjected to torture or to cruel treatment or punishment⁷, freedom of thought, conscience and religion,⁸ and freedom of opinion and expression.⁹ While these have been ratified by the majority of countries around the world, there are those who believe that these standards fail to take into account the often unique needs of member countries not in the West. These criticisms come predominately from Muslim countries but also Asia. For example in 1981, Said Rajaie-Khorassani, the Iranian representative to the United Nations, stated that the UDHR was "a secular understanding of the Judeo-Christian tradition,"¹⁰ and putting these standards into practice interferes with Islamic law.¹¹ Clearly different cultural and religious backgrounds have been considered in the creation of the UDHR and the most suitable standards chosen in order for universal applicability, but these may still be seen as unsuitable by some cultures. However, human rights are a worldwide concern and even if certain compromises need to be made, as long as they are not grossly burdensome, the UDHR should be implemented to its full extent in all member countries.

There has been wide debate and criticisms have been launched by the West at China's understanding and implementation of international human rights standards. This is particularly true regarding the freedom to speak one's mind, particularly against the government and the usage of the death penalty as a particularly cruel method of punishment for crimes which do not normally attract such a penalty. While it is difficult to compare human rights standards, considering the inherent differences of Western ideals and the historical, social and economic conditions in China, human rights are also universally recognised, with minor differences between cultures.

There are three dichotomies which challenge this universal notion and these have all been used by China as a method of justifying the human rights standards employed by the country and the important differences China has with the West.¹² These dichotomies are the civil-political vs the economic social, universality vs cultural relativism and international obligations vs state sovereignty.¹³ Particularly important from China's perspective is the dichotomy between international obligations and state sovereignty.

Sovereignty

Sovereignty not being interfered with is a strong position in China, one that comes from its history, particularly in the nineteenth century when foreign powers were deemed to often infringe on China's sovereignty. However, it has also been noted that the notion of sovereignty has also been used to justify or gloss over wrongdoings by the Chinese government.¹⁴ This however cannot be said to be an unusual aspect of government, governments around the world may be said to routinely use such notions to justify any mistakes or wrongdoing on their part. It is when justifications are used without basis that problems arise and China has made it clear what their position is on the role of sovereignty and its importance to the Chinese state.

In the 1991 White Paper on human rights, China stated that it opposed human rights being used by a country as a basis for imposing their own values or standards on developing countries in particular, and thus interfering in state sovereignty and dignity of these countries.¹⁵ Further, it was stated that, "China has always maintained that human rights are essentially matters within the domestic jurisdiction of a country. Respect for each country's sovereignty and non-interference in internal affairs are universally recognised principles of international law..."¹⁶. Significantly, regarding human rights China makes it clear that international human rights standards are understood and supported, listing a number of human rights violations in which the international community should act to hinder and put a stop to, such as "gross human rights violations caused by colonialism, racism, foreign aggression and occupation, as well as apartheid, racial discrimination, genocide, slave trade and serious violation of human rights by international terrorist organisations."¹⁷

Further justifications

China makes three main arguments, one is the aforementioned state sovereignty argument, as well as the right to subsistence and Chinese values.¹⁸ China stresses that state sovereignty surpasses human rights and insists on relativism, seeing human rights not just as a standard notion but one which needs to be balanced with other interests, namely the historical, social, economic and cultural conditions of a country.¹⁹ These interests are deemed as more important for China's development as a country but human rights are recognised, with full implementation of universal human rights standards being seen as a future goal but not one which supersedes any of the aforementioned values, particularly state sovereignty.

Taking these justifications one by one, it is easy to see that a culture clash exists between Western and Chinese ideals. The United States has a very liberty based approach to human rights and the country's government is also based on this notion. Universal rights and freedoms are zealously protected and upheld, any other considerations taking a back seat to these freedoms, while the PRC takes other considerations into account first, such as the aforementioned arguments as to why human rights standards are not fully applied in China or applied in a more limited fashion.

Another clash of culture between the East and West is that the meaning of human rights is interpreted differently, and despite the universality of the rights and freedoms contained in the UDHR, some cultures, as is the case in a number of Muslim countries, feel that universal human rights standards interfere with their own law.²⁰ This is also the justification used by the PRC, due to the greater importance of state sovereignty over human rights.

Situation in China

The People's Republic of China made an important amendment to their constitution in 2004, adding that "the State respects and preserves human rights."²¹ However, it is still the position of the United States that rights protected under the UDHR are being violated²², and raising particular concern is the position of the PRC on issues such as the death penalty and freedom of speech.

Death penalty

Article 48 in the General Provisions Part of the PRC Criminal Law, the death penalty is to be issued only in the most serious crimes and there are 68 offences listed for which death is an applicable penalty and the Supreme People's Court (SPC) has to approve each case.²³ The SPC had delegated the duty to provincial courts in the past but has since reformed in the interests of "respecting and protecting human rights and exerting strict controls over the death penalty."²⁴ The rule is not mandatory, but is often put into practice in an attempt to deter crime.

In 2005, China handed out the highest number of death penalties, executing 1,770 people. In a report by Amnesty International, the total number of death penalties carried out are much higher than the available numbers as the true amount is said to be a state secret and according to their findings, the true numbers are roughly double the official amount.²⁵ In fact a senior member of the National People's Congress has stated that the true number is closer to 10,000 people a year.²⁶

Bringing forth concern is the fact that the types of crimes being committed which are punishable by death include crimes which are not normally considered so serious in nature, and thus punishable by death, for example, fraud and forgery.²⁷ China has justified this number as a method of campaigning against crime, listing it as a necessary method of deterring criminals. Further, cultural beliefs in China do not see death in the same manner as Western cultures, for the Chinese, death is often seen as a channel to another world and does not conflict with the beliefs of Confucianism and legalism.²⁸

However, the number of death sentences handed out is truly frightening and there have been calls for reform, particularly when mistakes have been made and innocent people executed, such as in the cases of Nie Shubin, She Xianglin and Teng Xingshan.²⁹ Looking further back than the numbers of 2005, the year 1993 saw 77% of executions around the world happening in China.³⁰

Justification

While China certainly has valid reasons for the death penalty and its usage on a historical, social, economic and cultural level and has valid laws in place for use as a legal punishment, on a humanitarian level, the amount of executions and the number of crimes which are punishable by death are far too high. Information collected by organisations such as Amnesty International indicate that the way in which decisions handed out often do not fulfill the principles of justice and defendants do not always have legal representation, or are forced to confess through torture.³¹ This allows for a high margin of error and considering that human life is at risk, the system needs to be reformed.

China has the right to use the death penalty, and it is used in quite a number of other countries around the world, it is the method of usage which presents a problem for human rights standards. This should be reformed in order to better adhere to international human rights standards, and the number of punishments punishable by death should be further limited to ensure only the most violent/serious offenders are sentenced to death. China has recognised a problem through implementing the aforementioned reforms regarding the role of the Supreme People's Court as well as admitting that the current legal system is lacking in laws, due process as well as problems regarding conflicts of law.³²

Freedom of speech and association

The People's Republic of China generally places great limits on the freedoms of speech and association, despite the guarantee of these freedoms present in the 1982 Constitution which provides that, "citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration."³³ However, its preamble requires that four basic principles are upheld, the leadership of the Communist Party of China, socialism, dictatorship of the proletariat and Marxism-Leninism Mao Zedong Thought.³⁴

In practice, freedom of speech is severely restricted due to censorship. This is made easier through the fact that it is the government which controls many media establishments throughout the country. Things the government does not want stated are censored against, for example, Chinese law forbids references to democracy or anything which is against the ruling party and the way China is run.³⁵ This level of censorship has even involved removal of the word 'democracy from Microsoft MSN's chat rooms in China and the denied entry of American and European movies into China, although piracy has flourished to counteract this ban.³⁶

Notable restrictions also apply to the media and many foreign journalists have found themselves in situations where they have been detained, even foreign correspondents from large news organisations such as the BBC, The Washington Post and CBS, among many others, have been detained and interrogated by PRC Police.³⁷ In the Reporters Without Borders' Annual World Press Freedom Index of 2005, the PRC ranked 159 out of 167 places. This means that the PRC is considered to be among the countries with the strictest media control.³⁸ The Chinese media are expected to comply with the rules set out in the Communist Party of China Propaganda Department Guidelines and deal with harassment, detention surveillance or even imprisonment if the rules are not adhered to. The type of news coverage is also controlled, with the content mandated to be 80% positive and 20% negative.³⁹

Justification

The justification of state sovereignty also applies here and while there is certainly an entitlement for the government to justify such actions with the notion of sovereignty, to people of the West it appears as though there are far too many restrictions on the media and that the government wants too much control of something that it should ideally not be involved with at all. The freedom of speech guarantee in the Chinese Constitution is meaningless with so many restrictions in place, as once again China has chosen to honour state sovereignty over human rights. There are really no other relevant justifications which could be used by China in this case, the state sovereignty argument is viable but certainly seems to be a weak justification considering the measures in place which violate free speech of not just the media but also the people of China. This goes directly against the universal standard and while there is a guarantee of such freedoms under the Constitution it is in theory only.

Freedom of association

The People's Republic of China places similar restrictions on the citizens rights of association, particularly groups which show disapproval of government. Such gatherings are deemed as revolutionary, even as political crimes and for this reason the Chinese government takes a strong stance on the issue. The massacre in Tiananmen Square in 1989 is the most well known example of this lack of tolerance and is a widely debated topic in human rights circles. Deaths from the incident are said to be between 400 and 2600, while injuries are between 7000 and 10000.⁴⁰

Five years after Tiananmen Square, in June 1994, China introduced new regulations in the 1993 State Security Law in order to better protect themselves against those wanting to have their voices heard. State officials were given more power to detain individuals, confiscate property and determine what a "hostile" organisation is comprised of.⁴¹ Such individuals and organisations are often considered counter-revolutionary or anti-political and those detained for exercising the constitutionally given right of freedom of speech and association are usually detained in illegal manners, such as detention for long periods without being questioned, given access to a legal representative or charged with any crime. There are clear problems with due process in this area.⁴²

Regulations made by the state severely limit any type of association and there are only certain types of organisations which have state approval and these organisations need to be registered.⁴³ Further illustrating the harsh measures in place for those who want to have their voices heard, in 1994 the Beijing Intermediate People's Court handed down sentences between 15 and 20 years' imprisonment to three prisoners convicted of "leading counter-revolutionary organizations."⁴⁴ This demonstrates the level of disapproval by the state at any type of association and assembly which is in any way against the beliefs of the PRC and CCP.

Justification

It is hard to find a level of justification that applies to the harsh view that is taken of the freedom to associate. Although provided for by the Chinese Constitution, it is completely unusable due to the fact that it has been overtaken by state sovereignty. State sovereignty is used widely to overcome human rights requirements and this is also the case regarding freedom to associate. It appears not to be a mere system of regulation by the state but one of control over any demonstrations of individualism or different thoughts and ideas than those held by the state.

While a country under the type of regime present in China is of course entitled to use state sovereignty to their advantage it is used far too often in China to deny citizens their natural human rights, human rights which have been agreed to on an international level under the UN Charter and the Universal Declaration of Human Rights. The system should be reformed to grant citizens more of their entitlements and put the Chinese Constitution into practice rather than the way it is used currently, providing human rights and freedoms on a purely theoretical level.

1
Jack Donnelley, (1989) Universal Human Rights in Theory and Practice
9

2The New Encyclopaedia Britannica (1994) Vol 7, 15th edn,
Encyclopaedia Britannica Inc, Chicago, p 673.

3
Wang, J. China and the Universal Human Rights Standards, p
137.

4
Maxwell and Freidberg, supra note 13 at xvi

5
Wang, J. China and the Universal Human Rights Standards, p
139.

6Universal Declaration of Human Rights, Art 3

7
Ibid, Art 5

8
Ibid, Art 18

9
Ibid, Art 19

10
Littman, David. "Universal Human Rights and 'Human Rights in
Islam'". Midstream, February/March 1999

11
Ibid

12
Wang, J. China and the Universal Human Rights Standards, p
139.

13
Ibid.

14
Ibid, p 150.

15
1991 White Paper on Human Rights

16
Wang, J. China and the Universal Human Rights Standards, p
147.

17
Ibid.

18
Ibid, p 136.

19
Lecture notes, Ancient Legal Traditions

20
Littman, David. "Universal Human Rights and 'Human Rights in
Islam'". Midstream, February/March 1999

21
Edward Cody, China Amends
Constitution to Guarantee Human Rights.

22
Chinese Human Rights,
http://en.wikipedia.org/wiki/Chinese_human_rights

23
Criminal Procedure Law, Article 199

24
China amends law to tighten control over death sentence,
http://en.ce.cn/National/Law/200610/27/t20061027_9163445.shtml

25
Amnesty International's report on China

26
Ibid

27
Death Penalty Developments in 2005 - Amnesty International,
http://web.amnesty.org/pages/deathpenalty-developments2005-eng

28
Lecture notes, Criminal Justice in China, 7 December 2006

29
Death Penalty Developments in 2005 - Amnesty International,
http://web.amnesty.org/pages/deathpenalty-developments2005-eng

30
China Human Rights Fact Sheet,
http://www.christusrex.org/www1/sdc/hr_facts.html

31
Death Penalty Developments in 2005 - Amnesty International,
http://web.amnesty.org/pages/deathpenalty-developments2005-eng

32
Varieties of Conflict of Laws in China,
http://www.humanrights.uio.no/forskning/publ/wp/2002/02/working_paper-Varietie.html

33
Chinese Constitution 1982, Article 35

34
Ibid, Preamble

35
Chinese Human Rights,
http://en.wikipedia.org/wiki/Chinese_human_rights

36
Ibid

37
China Human Rights Fact Sheet,
http://www.christusrex.org/www1/sdc/hr_facts.html

38
Reporters sans frontieres - Annual Worldwide Press Freedom Index -
2005, http://www.rsf.org/rubrique.php3?id_rubrique=554

39
Ibid

40
Ibid

41
Ibid

42
Ibid

43
Ibid

44
Ibid