China and universal human rights standards
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Note: Footnotes Omitted
Part
III. Universal Standards versus Chinese Value: Incorporation
and Compromise
Tension
between universal human rights proposed by the West and
China¡¯s human rights position is probably a necessary thing,
since neither side could easily get rid of or even simply
persuade the other side.
However, with the development of globalization and
intensive cultural, economic and political exchanges between
the two sides, some tough positions may need a open-minded
adjustment, in order to avoid destructive clashes.
This part will evaluate the theories hold by both sides and seek
the way for adjustments. By evaluation the author holds the following
beliefs:
A. On
one hand, there are some basic and universal elements in
human rights. Assuming the economic-social rights assertion,
the cultural relativism and the state sovereignty doctrine
are all justified, they can not refute this point.
As noted previously, human rights are, by definition, the rights
one has simply because one is a human being.
The fact that all human beings share some same living
styles, live by the same or like material resources, would
give rise to commonalities in their social values. Where human rights standards have ample
amount of different versions in different countries, regions
or groups, there are some basic elements rooted in all human
rights proclaims. Drawing a minimum level of protection
from rights embodied in the Universal Declaration of Human
Rights (UDHR) and subsequent United Nations human rights
covenants, security (representing protection against
torture and slavery and recognition before law), subsistence
(representing social and economic rights) and liberty
(including personal freedom and freedom of though, expression,
and religion) are basic rights for all human society.
It is true that human nature in itself in some measure culturally
relative, thus in some sense the cultural relativism might
also not wrong in holding that culture may be an important
source of the validity of a moral right or rule. However, a absolute understanding of this theory cannot be
used as a pretext to stubbornly refuse adjustment or change
in one cultural group¡¯s human rights position.
First, absolute cultural relativism stems from perceptions
of the persistence of traditional societies.
It is assumed that culture is a static entity. On the contrary, culture is dynamic and
adaptive. It
can and does change.
It continually exhales the old and inhales the new.
Second, absolute cultural relativists also take the
erroneous assumption that culture is a unitary and unique
whole that cannot be changed incrementally or only in part.
They argued that universal standards embodied in
the U.N. Bill of Human Rights are applicable only to certain
Western societies; to impose them on other societies from
which they did not originally arise would do serious and
irreparable damage to those cultures. In fact, people are quite adept cultural
accommodationists.
Unless forced by external enemies, it is no shame
to incrementally change or adjust a society¡¯s culture.
More over, culture is always under the affection
of social structure. This conclusion can be drawn from nearly
each society, because every society¡¯s current culture is
different from that of old days, due to the change in the
society¡¯s social change.
State sovereignty arguably remains one of the columns of international
law, and it still play a central rule in the enforcement
of U.N. Human Rights Covenants. In U.N. Charter, sovereignty and human
rights are given equal weight: under Chapter I on ¡°Purposes
and Principles,¡± Article 1 articulates the aims to ¡°achieve
international cooperation ¡ in promoting and encouraging
respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language or religion,¡±
whereas Article 2 declares that ¡°nothing contained in the
present Charter shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction
of any states or shall require the Members to submit such
matters to settlement under the present Charter.¡±
The U.N. Charter therefore allows selective choice by each
member state as to which principle to invoke as legal authority
for its position on human rights.
However, the application of state sovereignty also
cannot be understood and interpreted in an absolute sense.
As former U.N. Secretary Ghali has observed: ¡°while
respect for the fundamental sovereignty and integrity of
the state remains central, it is undeniable that the centuries-old
doctrine of absolute and exclusive sovereignty no longer
stands, and was in fact never so absolute as it was conceived
to be in theory. A major intellectual requirement of our
time is to rethink the question of sovereignty-not to weaken
its essence, which is crucial to international security
and cooperation, but to recognize that it may take more
than one form and perform more than one function.¡±
With respect to social and economic rights, because both civil-political
and social-economic rights were integrated into the International
Bill of Rights, the key question here is not that one must
choose one between these two groups of rights, but that
one should put which in priority.
Put another way, social-economic rights could not
be used to exclude civil-political rights, and vice versa.
Applying the above analysis to China¡¯s case, one can find that all
the three approaches fall short of severing as weapons against
the basic universal human rights standards. In the Chinese society, though some, but
by no means all, essential traditional elements have been
retained,
it also incorporated into its system ample amount of new
elements from outside world since the late Qing dynasty.
Marxist-Leninist theory once dominated the society
after 1949, but had been almost abandoned in real life in
the most recent decades. Now Western social values seem occupied
many fields of Chinese life.
In essence, traditional society in which principles
of social justice are based not on rights but on status
and on the intermixture of privilege and responsibility,
has been under endless changing and amending. By history, Chinese society has many cases
of absorbing successfully outside cultural factors into
its body (probably Buddhism, which became one of China¡¯s
major religions, is the most striking example of cultural
adoption). So
in this sense it is very possible that China play this game
again by absorbing the basic universal human rights standards. On the other hand, what left by traditional Chinese values
presents no huge troublesome or obstacle to China¡¯s acceptance
of basic human rights.
State sovereignty is of particular importance to China¡¯s dealing
with foreign world in every aspect. The Chinese interpret the history of their
interaction with the outside world during the nineteenth
century as a long series of painful episodes of national
humiliation in which foreign powers constantly trampled
on China¡¯s sovereignty. Although I personally share this common feeling with the majority
of my countrymen, I don¡¯t endorse an absolute sovereignty
claim. While in theory a nation¡¯s internal affairs
should not be meddled by outside force, a government should
be so broadminded to accept international criticisms and
should have the courage to correct its own errors.
It looks to me that on many occasions, state sovereignty
is being manipulated as a political tool to distract Chinese
people¡¯s attention from the government¡¯s wrongdoings.
It should be noted that, China appears to have a second position
regarding universal human rights standards. As a contrast to its repeating statement of state sovereignty
and cultural distinctions, Chinese government in reality
is not totally ignorant of international aspects of human
rights protection. It expressed many times in international
forum that it was willing to abide by international human
rights covenants.
The 1991 Human Rights White Paper formally acknowledged
the ¡°international aspect¡± of human rights. In Premier Li Peng¡¯s Government Work
Report in March 1992, Li Stated, ¡°We believe that human
rights and fundamental freedoms of all mankind should be
respected everywhere . . . China agrees that questions concerning
human rights should be the subject of normal international
discussion.¡± In April 1994 Foreign Minster Qian Qichen
declared, ¡°China respects the Universal Declaration of
Human Rights, the Proclamation of Teheran, the Declaration
on the Rights to Development, and other international documents
related to human rights.¡± In the 1995 Human Rights While Paper,
the government stated that ¡°China respects the purposed
and principles of the Charter of the United Nations related
to the promotion of human rights and fundamental freedoms.¡± It also grab the chance, as it usually
does, to sing its own praise: ¡° In recent years China has,
as always, actively supported and participated in international
activities in the human rights field and has made new efforts
to promote the healthy development of international human
rights since the Cold War.¡± The highest level expression came about
in October 1997, in his press Conference with U.S. President
Clinton, Chinese President Jiang Zemin addressed: ¡°It goes
without saying that, as for general rules universally abided
by in the world, China also abides by these rules.¡±
Though Chinese government usually acts far behind it says, it did
took many measures incorporating universal human rights
standards into its judicial, political and economic system
in the last decades.
For example, China¡¯s 1997 revised Criminal Law and
Criminal Procedural Law establishing a series of principles
that international human rights community had long sought
to press China to adopt: (1)acts not stipulated in explicit
terms as crimes are no longer considered crimes; (2)highly
ideological category of ¡°crimes of counterrevolution¡±
was repealed; (3) a person is presumed innocent until proved
guilty by a court or tribunal at the closing of the trial;
(4) Chinese law will not regard as criminal any peaceful
activity in the exercise of the fundamental rights guaranteed
by the Universal Declaration of Human Rights; and (5) a
permanent independent tribunal be established or a judge
be associated with all proceedings under which the authorities
may committee a person to reeducation through labor, ¡°in
order to obviate the possibility of any criticism that the
present procedure is not entirely in conformity with international
standards for a fair trial.¡±
To conclude, though it¡¯s difficult to say which position speaks
louder than the other due to their conflicting nature, two
implications seems to be clear. Our analysis to the first position indicates
that the basic universal human rights standards are possibly
applying to China.
Strengthening our analysis, the second position indicates
that China is (or appears to be) willing to accept the universal
standards.
B. On
the other hand, culture, sovereignty and development issues
bear some merits in human rights arena; in promoting and
protecting universal human rights, much attention should
be given to a country¡¯s cultural distinction, national
condition, and development stage.
Please note that on the above section I use
the qualifying word ¡°absolute¡± before cultural relativism
and state sovereignty. As a matter of fact, culture and sovereignty could not be totally
ignored in considering universal human rights standards. Culture difference cannot be excuses for
every wrong, but it explains many things. Rooted in a nation or group¡¯s tradition and living habit,
culture can be adaptive to some totally new things such
as universal human rights, but the change is clearly a time-consuming
process rather than an overnight job.
Moreover, the change may or may not happen, but at
any event the outside power which want to change the culture
need to respect the culture first. As to sovereignty, agreement has not been reached on how much
a country should surrender its sovereignty to international
community. Nonetheless,
it is irrational to take it for granted that a country¡¯s
sovereignty should be ignored when other country disagree
with it¡¯s human rights performance. May be an international convention should
be drafted to address this issue.
Moreover, in promoting human rights, a country¡¯s
national condition and its development should be taken into
consideration.
There are dangers when writers in the West attempt
to judge critically the human rights records of non-western
cultures, regardless all the national condition difference.
While for most North Americans, Europeans and Japanese,
modernism has meant increased liberty and prosperity, for
Third world peoples if has often meant economic deprivation,
resource depletion, and sometimes a torn social fabric.
Respect for the rights guaranteed by either
of the United Nations Covenants is impossible without respect
for the rights guaranteed by both. One cannot accept Civil and Political Rights but reject the
Economic, Social and Cultural Rights, and vise versa. But is there a priority issue? To me the answer may be yes. Human rights may be moral concerns, but often they are not
merely concerns. Sometimes
a country can afford to act on its own or external human
rights concerns, other times it can not.
Also, for a certain period, some countries can afford
to invest its resources to all aspects of human rights concerns;
others can not. China is a nation which suffered from wars and foreign invasions
for more than 150 years, during which the Chinese just had
a instable society.
China also was populous and poor, lacking capital,
educated and skilled manpower, and many material resources.
It is understandable that China puts the right of
subsistence and development as the first need for a certain
period. China¡¯s
puzzle is that on side, the West wants China become a civil
and political rights based society overnight, while the
Chinese leaders deny the idea that the two groups of rights
don¡¯t exclude each other but rather mutually support, even
when appropriate economic success has been achieved.
Some times Westerners use universal human rights
standards in an over simple manner, without a full consideration
of Chinese people¡¯s major concerns. American and international human rights
organizations and officials have been interested in the
rapid expansion of civil rights for the majority of Chinese
people than in the serious violation of a small minority¡¯s
human rights. There
are two striking examples demonstrating how incompatible
between a simple imposition of universal standards and Chinese
people¡¯s main concern.
One is the family plan program, and the other is
the Chinese¡¯s government¡¯s ongoing crackdown of Falun
Gong.
The family policy and its implementation incurred
more criticisms internationally than it did domestically.
With the situation that nearly 20 million people
reach working age in China every year and most of them need
jobs, most of Chinese people, including those in rural areas,
become aware that limited resources in China can not afford
too large a population.
As a matter of fact, a common level of understanding
as to this question is arguably not the government¡¯s fabrication
but is something existing in reality. As to the crackdown Falun Gong, foreigners
always assume that the Chinese government is persecuting
people¡¯s religion belief and infringing all Chinese people¡¯s
basic human rights. However, responses inside China are quite
different from that of the West.
When the Chinese government declared Falun Gong an
¡°evil cult,¡± it was not a surprise to many people in China.
As a sect including pieces of teaching from Buddhism,
Taoism, China¡¯s folk superstitions as well as fox and weasel
sprits,
as Professor deLisle correctly pointed out, Falun Gong attracts
¡°those who have not fared especially well during the reform
era, including the elderly, the unemployed and many people
socialized under high socialism who have not managed a comfortable
transition to a market-based order.¡± To be sure, the Chinese government¡¯s
major purpose is maintaining its ruling over the country. However, when the government declared
that it did this in order to maintain social stability and
safeguard the fruit of 20 years economic performance, it
spoke probably in part on behalf of the majority of Chinese
people. It
is estimated that there are 2.4 million Falun Gong followers,
while most of other Chinese are no friends to this sect.
One may draw an impression by reading those free
comments on those most well known Chinese BBS or Internet
Discussion Forum
based in the United States or Hong Kong, where Falun Gong
is the most venerable target being criticized for its threatening
to China¡¯s stability. Some, representing a popular view, criticize
that Falun Gong distracts people¡¯s attention from democratic
movement.
It¡¯s true that sometimes the government¡¯s
policy regarding Family Plan Program and Falun Gong goes
too far and officials are too enthusiastic in implementing
such a policy, nonetheless it is unwise to judge such policy
in a simple model, namely, a model like this: universal
standards require free religion belief ¨C Falun Gong seems
to be religion or something like that ¨C China¡¯s crackdown
thus violated universal standards.
This model is neither convincing nor appealing to
Chinese people but rather incur some negative feeling.
Nonetheless, it may be not a bad ideal to require
the Chinese government to achieve its targets by legal method
and with more secure and mild ways.
