- Opportunities and Potholes of the UN “Universal Periodic Review”
Thank you for this opportunity to address issues related to the upcoming UN HRC Universal Periodical Review on China. As the previous speaker Ms. Gaer has expertly described, the UPR is a brand new, thus very little known UN human rights tool.
For an organization like the UN, the establishment of UPR is remarkable. Only a few years ago, it would have been unimaginable to put China under international spotlight to scrutinize its human rights record in a comprehensive manner. Since 1989, almost every year, China had successfully blocked any vote on motions at the now-demised UN Human Rights Commission to put on its agenda to examine China’s human rights behavior! This once seemingly insurmountable hurdle now suddenly vanished!
However, UPR can be abused by UN member states, esp. those who are unfriendly to human rights and the process can be highly politicized, its effectiveness minimized. The UN is an intern-governmental organization, where member states lobby, bargain, and position themselves to advance their own national interest. China in particular has demonstrated its skillfulness to mount impressive efforts to lobby its “friendly” countries at UN venues.
Some common tactics that member states have used to undermine UPR in order to prevent a critical report on their performance are: (1) use “national human rights institutions” and government-organized “non-government organizations” (GONGOs) to submit rosy reports to dilute the 10-page compilation by the Office of the High Commissioner’s Office for Human Rights (OHCHR) of stakeholders’ submissions; (2) fill the 3-hour “interactive dialogue” with praises or irrelevant remarks by delegations from “friendly” countries; (3) using the opportunity for state party response to dismiss critical questions or independent NGO submissions as “slandering” or “fabrications.”
So why does China bother to buy into UPR or become a member of the HRC? That is a much larger question than I could address here. There are some interesting hypotheses on the table: (1) China wants to be treated as a member in good standing in the international community; China could not have opposed UPR while keeping a straight face because, when China rebutted critics of its human rights, it has accused them to be “selectively targeting China” or “politicizing human rights”; UPR applies to all countries. If you look at the China’s National Report, it refers to its own position on human rights as based on “equal respect”, “fairness”, “objectivity, non-selectiveness” ; (2) UPR has been structured in such a way that the pain for a state to undergo it is minimized, a point that I will come back to soon.]
China’s own “National Report” to the UPR Working Group is typical affair. It follows a pattern, as we have seen in China’s reports to Committee Against Torture or Committee on Economic, Social, Cultural Rights, by presenting a positive assessment of its “great progress”, reiterating its commitment to promoting human rights, and highlighting legislative and regulatory steps, while glossing over ongoing violations and omitting the fact that many good-sounding laws are impossible to implement and officials who failed to implement them face little consequence.
One way to reduce UPR’s vulnerability to politicization and abuse is to facilitate active participation of civil society, or NGOs. One remarkable thing about UPR is its built-in openness, no matter how limited, for civil society intervention. To sufficiently explore the opportunity is the only way available to make UPR to have any impact.
[See Handout 1: the various opportunities for civil society involvement prior to, during, and after a country’s UPR review.]
So when the schedule to review China was set, the UPR Working Group called for NGO submissions last summer. 46 “stakeholders” (National human rights institutions and supposedly NGOs) submitted reports, each restricted to 5-pages. The UN OHCHR has compiled a file summarizing “credible and reliable” information from stakeholder’s submissions.
[See Handout 2: 46 stakeholders (NGOs and national human rights institutions). The list and the summery of submissions are on the OHCHR ]
Other than National HR Institutions, there are at least 3 types of organizations on the list: International NGOs, including Chinese, Tibet and Falungong groups overseas, Chinese (including HK) NGOs, and GONGOs. Two things are interesting: (1) Most of the groups from China are GONGOs, with few exceptions. The GONOG reports generally present “progress” and recommend legislations that are already been drafted or proposed. (2) Groups that working on Children, women, migrants, HIV/AIDS did make submissions. Yes there is no independent human rights NGOs like AI or HRW from the Mainland who made submissions, though some loose networks of activists/dissidents participated in the submissions with international groups.
The missing of Chinese domestic, openly operating, or “legally registered” human rights NGOs has to do with restrictive regulations and official crackdowns on independent NGOs.
So we can be almost certain, no Mainland Chinese human rights activist will attend the UPR session in Geneva in Feb., even though they might be invited to go by international NGOs. There is the risk factor: fear for being intercepted on the way out or retaliated against going back (one activist was recently interrogated several times, his home was raided and personal belonging confiscated. The policemen said they acted on the order from above to do anything to stop anyone from preparing a human rights report for the UPR!). But additionally, there are also obstacles such as travel costs, and UN ECOSOC accreditation, even for any legally registered groups.
Ironically, problems such as restriction on freedom of association, assembly, and speech, which the UPR is intended to examine and, hopefully, find solutions, play a key role in undermining UPR, diminishing its impact.
Another way to make UPR work is that human rights friendly member states should actively participate. The 3-hour “interactive dialogue” on Feb. 9 (9am-12) is open to all 192 countries (e.g. US is not HRC member, but can participate). The Feb. 11 session is when the record of the State reviews are considered, which lasts for 30 min (12-12:30), where China can respond or reject some recommendations. Then, there is a HRC plenary session several months later where the report is adopted. Only NGOs with ECOSOC accreditation can attend these sessions and can make statements only in the HRC session.
It is important to get into the final report of the UPR working group a concrete list of substantive recommendations with measurable results. This document will go in record as a testimony to China’s delivery after it has made pledges to promote human rights and signed numerous treaties, covenants and declarations on protecting human rights. All stakeholders in the next 4 years can refer to this document as yardstick to measure any progress China may or may not make. China will be in an awkward position to denounce such a document as “interference in its internal affairs” by “anti-China forces” with “ulterior motivations” – because China has gone through the process and participated in setting the rules and in reviews of other state parties. It can’t quite dismiss the process as “selective” or “unfair”.
What could the US delegation or any other human rights friendly countries do in the UPR process? The US is not a member of HRC, but has observer’s status.
Prepare one good question about an area of serious rights abuses and make one substantive but feasible recommendation.
For instance, given the importance of free speech as a fundamental human right, the US Permanent delegation could ask the question about the detention and harassment of signatories of Charter 08, who merely exercised their freedom of expression by endorsing a declaration on human rights and democracy. Ask for the release of detained signatory writer/intellectual Liu Xiaobo on suspicion of “inciting subversion against the state,” which is a crime frequently used in China to persecute free speech.
The US delegation could recommend that China to release Liu Xiaobo, and, for the long-term protection of free expression, to clarify and precisely define the meaning of the terms “incitement,” “subversion” and “state power” in Article 105(2) of the Chinese Criminal Code as well as the specific conditions under which a peaceful act of expression may constitute “inciting subversion against state power.” Such conditions must explicitly exclude any non-violent activity in the exercise of the right to freedom of expression, including expressions critical of political parties and government authorities.
In connection to this last point, I should mention that I’d like to submit the English translation of Charter 08 by Perry Link that appeared in NYRB for the record.
Thank you!
Xiaorong Li
(Congressional-Executive Commission on China Roundtable, "The UN Human Rights Council's Review of China's Record:
Process and Challenges", January 16, 2009, 10-11:30am)
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