Xiaorong Li
Obviously the growth of a civil society and the development of the rule of law are mutually supportive and mutually beneficial. Professor Cohen has made huge imprints in leading the way to develop the latter, but also indirectly and directly to develop the former. Let me use my 5 minutes to say something about one part of this point, that is, how developing the rule of law helps the growth of civil society.
When I say civil society, I refer to a public space sandwiched between the private realm where for-profit interests dominate and the space where the State dominates. A sizable and lively public space is a fact of life in China today. Yes, you’re right, this civil society still has to fight hard for its life and for every inch of the space for independent action, against powerful forces from both sides that try to invade it and obliterate it. No matter how fragile and precarious, the fact that such a Chinese civil society is alive and kicking is monumental and it is, to a large extent, a gift from those who worked tirelessly to help the development of rule of law in the past many years, and the person who has been at the forefront of that hardworking troupe is the person we’re honoring here today.
There are many ways in which the emergence of a legal system and the promise of rule of law have boosted civil society. Three come to mind:
First, the promise of rule of law gave people hope, inspires them, and the law supplied the ammunition. The Chinese law has been the double-sword which the party-state uses to put people in their place but it is also used by the people to hold the government accountable and seek justice.
Second, many young lawyers, products of the newly minted law schools in China’s universities, take the government’s promise of rule of law and what they learnt in law textbooks literarily, but as they meet the reality of rule by the CCP political and legal committees, they become the front-row challengers of the system, and leaders in the civil rights movement.
Thirdly, members of the Chinese civil society have used the law to some extent effectively to extract positive changes, not without paying the prices, of course.
Take for example what is known as the “rights-defense movement”. Several things about this phenomenon deserve our attention:
1st, it has commanded a broad participation from many social classes/groups, not limited to the educated elite.
2nd, participants have made good use of the internet as their tools for communication & mobilization – to bypass draconic rules controlling organizing, and they have NOT been crushed by the Great Fire Wall and the heavy deployment of cyber-police;
3rd, while NGO organizing has become the primary target of the government’s war against civil society, many forms of informal organizing have been invented and they are carrying on the bulk of citizen actions;
And finally, this movement remains largely non-violent, participants appeal to the law & the Constitution, despite the fact that there have been an increasing number of violent mass incidents in clashes between protesters and the police.
These features are worth noticing because they may offer explanations as to why some small positive changes have been extracted by civil society activism from the authoritarian police state. We need only look back at the past half year to find several mini-steps forward, not mentioning earlier landmark decisions like the abolition of the Custody & Repatriation detention system. These recent steps include:
- the uncharacteristically light sentence for the young woman Deng Yujiao who accidentally killed an official in self-defense last summer;
- the backing out by government from its order to mandatorily install filtering software Green Dam Youth Escort on new computers last July;
- the quiet acknowledgement of “black jails” in the official media in recent weeks,
- and the lift of ban by the Shanghai government two weeks ago on activist Feng Zhenghu's return from Japan after his 92-days protest at the Tokyo airport.
In short, three decades of foreign legal aid and rule of law programs have helped nurture aspirations and provide tools for activists in the Chinese civil society to fight for justice. Jerry and many of you who are here today played an important role in making this possible. I second what Jerry said in his South China Morning Post article 3 days ago that such programs and the international pressure have helped pave the way for an easier transition once the fundamental changes take place. However, we must face up to the troubling reality that none of these efforts has stopped the Chinese government from engaging in extra-legal persecution of Gao Zhisheng, and mis-use of the law to persecute Liu Xiaobo and many others good citizens including Chen Guangcheng, Hu Jia, Huang Qi, Tan Zuoren (the list can go on), to punish them for having spoken up for or taken actions to protect the rights and interest of disadvantaged groups of fellow Chinese citizens.
As a testimony to Jerry’s integrity and contributions, I end my remark by reminding us that, over the years, Jerry has actually befriended some of those whose names I just mentioned, spoken up on their behalf, and, in some cases, acted as legal adviser to their lawyers. Thank you, Jerry!
(Remarks made at the Conference: “Half a Century of Asian Law: A Celebration of Prof. Jerome Cohen”, George Washington University School of Law, Feb. 19, 2010)
Friday, February 26, 2010
Monday, December 21, 2009
Copenhagen: China's Predictable Act of Game Change
Xiaorong Li
The UN Summit on climate change ended in a non-binding agreement. China and the US, for different reasons, hail it as a victory. Toward the end of the negotiations, Politico reported that China's negotiators were pushing for "a short, noncommittal collective statement" rather than a full-fledged binding agreement. What came out of the summit is something that those monitor China’s human rights have predicted. China emerged as the central holdout, leading developing countries with high emission rates, which, they said, if they were mandated to lower, would slow down their economy and cost billions, which they wanted the industrialized countries to pay.
No one should be surprised to learn from Copenhagen that the last thing the Chinese government wants is a binding agreement, transparency of its actions in implementing it and any opportunity for international monitoring. Yet, China also wants to appear a key player in global efforts to combat climate change.
China also says it deserves being given “exception”. Now that sounds familiar! Chinese officials told the gathering of world leaders that China is still a developing country and should not be held responsible for its carbon emissions as a developed country should. But China has become a big industrial country and replaced the US in 2006 to become the largest greenhouse gases producer. Without firm commitment by China and the US to abide by an enforceable treaty, with measurable benchmarks, to cut down emission, there is little hope to slow down climate change.
Copenhagen accentuates the stark choices that the Chinese leaders must make sooner or later: Will China rise as a responsible, cooperative, and rule-binding world power, a force to do good in solving global problems? Or will China rise as a force to undermine international efforts, imposing its own political will, changing the rule of the game by swinging its sheer weight around on world stage?
While many have been charmed and seduced by China’s rapid rising power status, it is easy to turn blind eyes to the fact that the Chinese government rules above the law at home. It needs the law and uses it as its political tool. The Chinese leaders love rule by law, but they have kept rule of law at bay! The government has little transparency in its decision making. It is un-accountable to its people, even those who would be negatively affected by its decisions and policies. Such a power is naturally averse to any international monitoring and efforts at holding it accountable to binding rules constraining its exercise.
It is true that China has singed on to binding international rules. That is when there were enough pressure and incentives. In 1998, China signed and ratified the binding human rights treaty International Covenant on Social, Economic and Cultural Rights (ICSECR), and also signed (but has not ratified) the International Covenant on Civil and Political Rights. At that time, China was eager to return to international stage with as a respectable power player. It still had to struggle to shed off bad reputations after it had bloodily butchered peaceful pro-democracy protesters on Tiananmen ten years back, in 1989.
The key to getting China to sign binding agreement on cutting emission, then, is making the government understand what is at stake for its own interest -- if climate change can’t be quickly contained. And monitoring is necessary if any quick effective emission cut is to be achieved.
Even if China had signed a binding international agreement in Copenhagen, it does not mean action. It is important to take seriously the lessons learnt from the way in which China evades its treaty obligations to international human rights law:
First, when ratifying an international treaty, China never fails to take reservations on key articles and opt not to accept optional protocols. Thus China took reservation on the article stipulating the right to form independent union in the ICSECR. It also took reservations on articles governing monitoring and refused to adopt the Optional Protocol to the Convention against Torture. These moves practically exempted China from inspection by the Committee against Torture and prevented Chinese citizens from reporting individual cases to the Committee.
Secondly, international monitoring of China’s implementation of its treaty obligations and holding it accountable has been very difficult, if not impossible. Twenty-one years after China signed and ratified the Convention against Torture, the Chinese law has not yet been fully revised to conform to the treaty’s requirements, perpetrators have rarely been held criminally responsible, victims are hardly ever compensated, and torture remains rampant in detention centers, jails, and in law enforcement. (These are documented in the UN Committee against Torture’s 2008 “Concluding Observation & Recommendations” issued after its review of China’s own report on the implementation of this treaty in the past five years: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/457/10/PDF/G0845710.pdf?OpenElement)
Thirdly, even after a treaty is signed and ratified, China would resist very hard any monitoring efforts. China responded to the CAT “Observations” with a belligerent comment, denouncing its conclusions as “biased” and the sources it cited as “fabricated” by groups whose purpose was to “overthrow the Chinese government”. (See UN document CAT/C/CHN/CO/4/Add.1) At the UN Human Rights Council, where China lobbied hard and voluntarily pledged to promote human rights in order to get re-elected for a second term in 2009, it plays an aggressive role in trying to change the rules and practices that give the UN human rights monitoring mechanisms some teeth. E.g., China is trying to undo the UN practice of appointing independent experts to the Committee against Torture or to the positions of mandate holders of the Special Procedures monitoring different thematic issues of human rights or specific countries. China does not want the experts to do the job independently. If China has its way, the professors, lawyers, judges and NOG human rights advocates, who currently serve as volunteers in these posts will be replaced one day by diplomats and politicians from member states.
Taking these lessons seriously allows environmentalists and others who care about climate change to work more effectively toward their goals by, for instance, supporting efforts at democratic reform, rule of law changes, and improvement in protection of human rights in China.
The UN Summit on climate change ended in a non-binding agreement. China and the US, for different reasons, hail it as a victory. Toward the end of the negotiations, Politico reported that China's negotiators were pushing for "a short, noncommittal collective statement" rather than a full-fledged binding agreement. What came out of the summit is something that those monitor China’s human rights have predicted. China emerged as the central holdout, leading developing countries with high emission rates, which, they said, if they were mandated to lower, would slow down their economy and cost billions, which they wanted the industrialized countries to pay.
No one should be surprised to learn from Copenhagen that the last thing the Chinese government wants is a binding agreement, transparency of its actions in implementing it and any opportunity for international monitoring. Yet, China also wants to appear a key player in global efforts to combat climate change.
China also says it deserves being given “exception”. Now that sounds familiar! Chinese officials told the gathering of world leaders that China is still a developing country and should not be held responsible for its carbon emissions as a developed country should. But China has become a big industrial country and replaced the US in 2006 to become the largest greenhouse gases producer. Without firm commitment by China and the US to abide by an enforceable treaty, with measurable benchmarks, to cut down emission, there is little hope to slow down climate change.
Copenhagen accentuates the stark choices that the Chinese leaders must make sooner or later: Will China rise as a responsible, cooperative, and rule-binding world power, a force to do good in solving global problems? Or will China rise as a force to undermine international efforts, imposing its own political will, changing the rule of the game by swinging its sheer weight around on world stage?
While many have been charmed and seduced by China’s rapid rising power status, it is easy to turn blind eyes to the fact that the Chinese government rules above the law at home. It needs the law and uses it as its political tool. The Chinese leaders love rule by law, but they have kept rule of law at bay! The government has little transparency in its decision making. It is un-accountable to its people, even those who would be negatively affected by its decisions and policies. Such a power is naturally averse to any international monitoring and efforts at holding it accountable to binding rules constraining its exercise.
It is true that China has singed on to binding international rules. That is when there were enough pressure and incentives. In 1998, China signed and ratified the binding human rights treaty International Covenant on Social, Economic and Cultural Rights (ICSECR), and also signed (but has not ratified) the International Covenant on Civil and Political Rights. At that time, China was eager to return to international stage with as a respectable power player. It still had to struggle to shed off bad reputations after it had bloodily butchered peaceful pro-democracy protesters on Tiananmen ten years back, in 1989.
The key to getting China to sign binding agreement on cutting emission, then, is making the government understand what is at stake for its own interest -- if climate change can’t be quickly contained. And monitoring is necessary if any quick effective emission cut is to be achieved.
Even if China had signed a binding international agreement in Copenhagen, it does not mean action. It is important to take seriously the lessons learnt from the way in which China evades its treaty obligations to international human rights law:
First, when ratifying an international treaty, China never fails to take reservations on key articles and opt not to accept optional protocols. Thus China took reservation on the article stipulating the right to form independent union in the ICSECR. It also took reservations on articles governing monitoring and refused to adopt the Optional Protocol to the Convention against Torture. These moves practically exempted China from inspection by the Committee against Torture and prevented Chinese citizens from reporting individual cases to the Committee.
Secondly, international monitoring of China’s implementation of its treaty obligations and holding it accountable has been very difficult, if not impossible. Twenty-one years after China signed and ratified the Convention against Torture, the Chinese law has not yet been fully revised to conform to the treaty’s requirements, perpetrators have rarely been held criminally responsible, victims are hardly ever compensated, and torture remains rampant in detention centers, jails, and in law enforcement. (These are documented in the UN Committee against Torture’s 2008 “Concluding Observation & Recommendations” issued after its review of China’s own report on the implementation of this treaty in the past five years: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/457/10/PDF/G0845710.pdf?OpenElement)
Thirdly, even after a treaty is signed and ratified, China would resist very hard any monitoring efforts. China responded to the CAT “Observations” with a belligerent comment, denouncing its conclusions as “biased” and the sources it cited as “fabricated” by groups whose purpose was to “overthrow the Chinese government”. (See UN document CAT/C/CHN/CO/4/Add.1) At the UN Human Rights Council, where China lobbied hard and voluntarily pledged to promote human rights in order to get re-elected for a second term in 2009, it plays an aggressive role in trying to change the rules and practices that give the UN human rights monitoring mechanisms some teeth. E.g., China is trying to undo the UN practice of appointing independent experts to the Committee against Torture or to the positions of mandate holders of the Special Procedures monitoring different thematic issues of human rights or specific countries. China does not want the experts to do the job independently. If China has its way, the professors, lawyers, judges and NOG human rights advocates, who currently serve as volunteers in these posts will be replaced one day by diplomats and politicians from member states.
Taking these lessons seriously allows environmentalists and others who care about climate change to work more effectively toward their goals by, for instance, supporting efforts at democratic reform, rule of law changes, and improvement in protection of human rights in China.
Tuesday, December 15, 2009
China’s Indictment of Liu Xiaobo: What Does It Say about the Obama Administration’s Human Rights Policy?
Xiaorong Li
The news came last Friday that Liu Xiaobo, the best known Chinese dissident intellectual who lives in Beijing, was indicted on December 10, 2009, “International Human Rights Day,” by the Beijing Procuratorate. This move seems rather provocative or defiant, considering that the US President Obama had just returned from his China trip, where he has, no matter clearly or opaquely – a subject of debate, made statements advocating freedom of expression and information.
The Chinese leaders’ defiance to Mr. Obama and his call for more freedom of expression at the Shanghai “town hall” meeting with students carefully handpicked by the Chinese officials cannot be more accentuated by the fact that Mr. Liu is indicted for “drafting Charter 08 with others”, which the prosecution said was a “serious crime.” This means that writing and expressing views urging democratic reform and improving human rights is officially “a serious crime” in China and people go to jail for doing that, like Mr. Liu Xiaobo has for the past year.
Many may have wondered why the Chinese authorities chose at this time to indict Mr. Liu. But why wouldn't they? What would they have been worried about? One interesting question is whether the Obama Administration would learn something about the diminishing effectiveness of quiet private engagement on human rights with a big and increasingly more powerful country like China – if such a policy ever had any effectiveness at all before.
From talking to many people inside China, including Mr. Liu’s close friends, supporters, and his lawyers, I have heard it said repeatedly, often passionately, that the move against Liu Xiaobo and Charter 08, after having detained him and harassed other signatories for an whole year, is the outcome of the US President’s timid appeal in China. They told me that Obama’s appeals for human rights, which came in the form of praising freedom of expression on the internet and in a statement about agreeing to disagree about human rights during the joint press conference with the Chinese President Hu Jintao, were too weak and too vague. This seems to signal green light for the Chinese leaders to take strong actions on detained democrats and human rights activists, whose fate had been put on hold, as if awaiting for Obama’s visit.
It now looks like that US officials handed a short list of prisoners of conscience to the Chinese officials and President Obama may have personally conveyed the US government’s concerns about the individuals on the list to Hu Jintao. It was a private, quiet effort, to the Administration’s credit. But precisely because it was quiet and private, the Chinese leaders could easily pretend that they didn’t know anything and feel not pressure to respond. If this laudable effort ends there, out of the public view, it practically re-assured the Chinese leaders that the US would not protest loudly if they refuse to release these individuals or improve their conditions. The Chinese leaders seem to have concluded, quite logically, that the Obama administration, coming to Beijing to ask for help on several issues of importance to the US -- constraining Iran and N. Korea’s nuclear programs, slowing climate change, and re-balancing the economy -- would be too distracted by its own problems and unwilling to offend China by exerting any real pressure if the Chinese government went ahead convicting Liu Xiaobo and accusing drafting Charter 08 a crime.
For the Charter 08 writers and signatories, it might be better to be acknowledged than ignored by the Chinese government, but being officially labeled as having committed “a serious crime” sends a chill through the community. Charter 08, a public petition calling for democratic reform and protection of human rights, was initially signed by 303 Chinese on its release day on Dec. 9, 2008. In the past 12 months, more than 10,000 people have signed the petition, including about 8,000 residing on mainland China.
During those 12 months, other than the initial arrests, summons, interrogations, raids of homes and confiscation of personal property, the government has only published articles in official media to denounce “universal values” and “multi-party democracy,” but officials have rarely responded directly to Charter 08 by naming its name and have refrained from calling it a criminal act. Coming out finally to label drafting Charter 08 “a serious crime” clarifies speculations that, within top ranks of the leadership, officials were divided and some reformist inclined officials might be sympathetic to the drive or might have seen this as an opportunity to consolidate their power in the high-level power struggle.
Calling drafting Charter 08 a “crime” sends a stern warning to those who wrote, edited, or promoted this text, about one hundred of people, I was told, and to the thousands who signed the petition. For being implicated in this “criminal” act, they too could face imprisonment. The Chinese authorities clearly want to put them in their place: stop them from voicing their political views and threaten them with legal punishment for engaging in any political organizing!
Once again, the Chinese leaders behaved like calculating maximizers of benefits. Since they see no costly consequences for locking up its most vocal critic, and on the contrary, feeling confident they have had other big world powers tied around their fingers, they no longer need to make concessions by making a soft landing on Mr. Liu’s case. There is no obstacle in their path: They revert to do what the nature of their power has always seduced them to do – silencing dissent, stamping out any civil society mobilization for political change. Being calculating, rational, does not make an authoritarian one-party regime less authoritarian.
Let’s face it, it would not be entirely fair to call Obama’s China trip the worst or least successful in comparison to previous US Presidents’ China visits on account of the lack of any deal on prisoners’ releases this time. China is almost a different country today and the US-China relations are in a very different place as compared to the days of the Clinton’s and the Bushes’ presidencies. But quiet private diplomacy, an old strategy that didn’t quite work under these former presidents, is less likely to work now as China sees little bargain in such deals and no real pressure for compliance.
Obama could still have done better at making clear, strong, and eloquent statements on human rights and democracy on his China trip. The outcome might not have been different, given the weakened position of the US vs. China. But even if that were the case, the President would have at least stood the ground of US values and made the American people proud. And more importantly, to many Chinese democrats and human rights advocates, he would not have let them down.
December 14, 2009
The news came last Friday that Liu Xiaobo, the best known Chinese dissident intellectual who lives in Beijing, was indicted on December 10, 2009, “International Human Rights Day,” by the Beijing Procuratorate. This move seems rather provocative or defiant, considering that the US President Obama had just returned from his China trip, where he has, no matter clearly or opaquely – a subject of debate, made statements advocating freedom of expression and information.
The Chinese leaders’ defiance to Mr. Obama and his call for more freedom of expression at the Shanghai “town hall” meeting with students carefully handpicked by the Chinese officials cannot be more accentuated by the fact that Mr. Liu is indicted for “drafting Charter 08 with others”, which the prosecution said was a “serious crime.” This means that writing and expressing views urging democratic reform and improving human rights is officially “a serious crime” in China and people go to jail for doing that, like Mr. Liu Xiaobo has for the past year.
Many may have wondered why the Chinese authorities chose at this time to indict Mr. Liu. But why wouldn't they? What would they have been worried about? One interesting question is whether the Obama Administration would learn something about the diminishing effectiveness of quiet private engagement on human rights with a big and increasingly more powerful country like China – if such a policy ever had any effectiveness at all before.
From talking to many people inside China, including Mr. Liu’s close friends, supporters, and his lawyers, I have heard it said repeatedly, often passionately, that the move against Liu Xiaobo and Charter 08, after having detained him and harassed other signatories for an whole year, is the outcome of the US President’s timid appeal in China. They told me that Obama’s appeals for human rights, which came in the form of praising freedom of expression on the internet and in a statement about agreeing to disagree about human rights during the joint press conference with the Chinese President Hu Jintao, were too weak and too vague. This seems to signal green light for the Chinese leaders to take strong actions on detained democrats and human rights activists, whose fate had been put on hold, as if awaiting for Obama’s visit.
It now looks like that US officials handed a short list of prisoners of conscience to the Chinese officials and President Obama may have personally conveyed the US government’s concerns about the individuals on the list to Hu Jintao. It was a private, quiet effort, to the Administration’s credit. But precisely because it was quiet and private, the Chinese leaders could easily pretend that they didn’t know anything and feel not pressure to respond. If this laudable effort ends there, out of the public view, it practically re-assured the Chinese leaders that the US would not protest loudly if they refuse to release these individuals or improve their conditions. The Chinese leaders seem to have concluded, quite logically, that the Obama administration, coming to Beijing to ask for help on several issues of importance to the US -- constraining Iran and N. Korea’s nuclear programs, slowing climate change, and re-balancing the economy -- would be too distracted by its own problems and unwilling to offend China by exerting any real pressure if the Chinese government went ahead convicting Liu Xiaobo and accusing drafting Charter 08 a crime.
For the Charter 08 writers and signatories, it might be better to be acknowledged than ignored by the Chinese government, but being officially labeled as having committed “a serious crime” sends a chill through the community. Charter 08, a public petition calling for democratic reform and protection of human rights, was initially signed by 303 Chinese on its release day on Dec. 9, 2008. In the past 12 months, more than 10,000 people have signed the petition, including about 8,000 residing on mainland China.
During those 12 months, other than the initial arrests, summons, interrogations, raids of homes and confiscation of personal property, the government has only published articles in official media to denounce “universal values” and “multi-party democracy,” but officials have rarely responded directly to Charter 08 by naming its name and have refrained from calling it a criminal act. Coming out finally to label drafting Charter 08 “a serious crime” clarifies speculations that, within top ranks of the leadership, officials were divided and some reformist inclined officials might be sympathetic to the drive or might have seen this as an opportunity to consolidate their power in the high-level power struggle.
Calling drafting Charter 08 a “crime” sends a stern warning to those who wrote, edited, or promoted this text, about one hundred of people, I was told, and to the thousands who signed the petition. For being implicated in this “criminal” act, they too could face imprisonment. The Chinese authorities clearly want to put them in their place: stop them from voicing their political views and threaten them with legal punishment for engaging in any political organizing!
Once again, the Chinese leaders behaved like calculating maximizers of benefits. Since they see no costly consequences for locking up its most vocal critic, and on the contrary, feeling confident they have had other big world powers tied around their fingers, they no longer need to make concessions by making a soft landing on Mr. Liu’s case. There is no obstacle in their path: They revert to do what the nature of their power has always seduced them to do – silencing dissent, stamping out any civil society mobilization for political change. Being calculating, rational, does not make an authoritarian one-party regime less authoritarian.
Let’s face it, it would not be entirely fair to call Obama’s China trip the worst or least successful in comparison to previous US Presidents’ China visits on account of the lack of any deal on prisoners’ releases this time. China is almost a different country today and the US-China relations are in a very different place as compared to the days of the Clinton’s and the Bushes’ presidencies. But quiet private diplomacy, an old strategy that didn’t quite work under these former presidents, is less likely to work now as China sees little bargain in such deals and no real pressure for compliance.
Obama could still have done better at making clear, strong, and eloquent statements on human rights and democracy on his China trip. The outcome might not have been different, given the weakened position of the US vs. China. But even if that were the case, the President would have at least stood the ground of US values and made the American people proud. And more importantly, to many Chinese democrats and human rights advocates, he would not have let them down.
December 14, 2009
Thursday, December 10, 2009
Speaking of Human Rights
Here's the speech President Obama should give when he meets President Hu Jintao
By Xiaorong Li
November 17, 2009
While President Barack Obama is in Beijing this week, he has an opportunity to address two key issues, climate change and human rights concerns, simultaneously. Here's the kind of speech the president should give:
"President Hu Jintao, ladies & gentlemen, it is a great pleasure to be in Beijing.
My administration has put climate change at the top of our diplomatic agenda. This is especially true when it comes to our relationship with China. Our two large nations share the title of top consumers of energy and the biggest polluters on earth. None of us can escape the impact of climate change. The security and stability of our nations and our peoples - our prosperity, our health, our safety - are in jeopardy.
Yet, we cannot meet this challenge unless all the largest emitters of greenhouse gases, including China, act together. The U.S., as one of the developed nations that caused much of the damage to our environment over the last century, has a responsibility to lead. China, as a rapidly developing nation that will produce a large share of global carbon emissions in the decades ahead, must do its part.
I am proud to say that my administration is actively pursuing its agenda to promote clean energy and reduce carbon emissions. President Hu, I urge you to build on what your government has already done to combat pollution and promote alternative energy.
I also want to express my admiration for the independent environmental activists who have sprung up across China. In my country, activists have played a vital role in mobilizing public opinion, blowing the whistle on polluters and developing energy-saving measures. I salute them as part of the solution to environmental problems.
For this reason, I am concerned that they still cannot express their views freely. One of this country's most vocal environmentalists is behind bars. Wu Lihong, a farmer, should be released from prison where he is serving a three-year sentence in retaliation for exposing the illegal dumping of industrial waste in the famous Tai Lake. Another hero, Sun Xiaodi, is currently serving two years in a labor camp. He fought for recognition of the health problems caused by nuclear contamination among workers in a plant in Gansu Province.
In 2008, a plant producing harmful waste was constructed in the densely populated city Chengdu. Residents held a protest march. One organizer, Chen Daojun, is now serving three years in prison for 'inciting subversion of the state.'
Your honor, you told the U.N. General Assembly in September that your government will take bold actions to reduce greenhouse gas emissions. Such an ambitious plan calls out for the active participation of members of Chinese civil society. Free expression is a key to civil society participation. People who post their opinions on the Internet, like the writer Liu Xiaobo, should not be behind bars for voicing their political views.
It is also crucial to hold polluting businesses accountable through a fair and just judicial process. That is why I am concerned that Chinese lawyers have been stripped of licenses or, as in the case of the Beijing lawyer Gao Zhisheng, imprisoned, tortured and made to 'disappear.'
The United States is willing to engage China as an ally and partner in finding solutions. The American people are flexible and pragmatic, but they hold dear to their hearts respect for liberty and human dignity. They will not give these ideals up for expediency's sake.
I look forward to working with you to achieve our common purpose: a world that is safer, cleaner and healthier than the one we found; and a future that is worthy of the children in China, in the United States, and in the world. Thank you."
Xiaorong Li is a research scholar at the Institute for Philosophy & Public Policy, University of Maryland, College Park, who does consultant work for Chinese NGOs.
Copyright © 2009, The Baltimore Sun
By Xiaorong Li
November 17, 2009
While President Barack Obama is in Beijing this week, he has an opportunity to address two key issues, climate change and human rights concerns, simultaneously. Here's the kind of speech the president should give:
"President Hu Jintao, ladies & gentlemen, it is a great pleasure to be in Beijing.
My administration has put climate change at the top of our diplomatic agenda. This is especially true when it comes to our relationship with China. Our two large nations share the title of top consumers of energy and the biggest polluters on earth. None of us can escape the impact of climate change. The security and stability of our nations and our peoples - our prosperity, our health, our safety - are in jeopardy.
Yet, we cannot meet this challenge unless all the largest emitters of greenhouse gases, including China, act together. The U.S., as one of the developed nations that caused much of the damage to our environment over the last century, has a responsibility to lead. China, as a rapidly developing nation that will produce a large share of global carbon emissions in the decades ahead, must do its part.
I am proud to say that my administration is actively pursuing its agenda to promote clean energy and reduce carbon emissions. President Hu, I urge you to build on what your government has already done to combat pollution and promote alternative energy.
I also want to express my admiration for the independent environmental activists who have sprung up across China. In my country, activists have played a vital role in mobilizing public opinion, blowing the whistle on polluters and developing energy-saving measures. I salute them as part of the solution to environmental problems.
For this reason, I am concerned that they still cannot express their views freely. One of this country's most vocal environmentalists is behind bars. Wu Lihong, a farmer, should be released from prison where he is serving a three-year sentence in retaliation for exposing the illegal dumping of industrial waste in the famous Tai Lake. Another hero, Sun Xiaodi, is currently serving two years in a labor camp. He fought for recognition of the health problems caused by nuclear contamination among workers in a plant in Gansu Province.
In 2008, a plant producing harmful waste was constructed in the densely populated city Chengdu. Residents held a protest march. One organizer, Chen Daojun, is now serving three years in prison for 'inciting subversion of the state.'
Your honor, you told the U.N. General Assembly in September that your government will take bold actions to reduce greenhouse gas emissions. Such an ambitious plan calls out for the active participation of members of Chinese civil society. Free expression is a key to civil society participation. People who post their opinions on the Internet, like the writer Liu Xiaobo, should not be behind bars for voicing their political views.
It is also crucial to hold polluting businesses accountable through a fair and just judicial process. That is why I am concerned that Chinese lawyers have been stripped of licenses or, as in the case of the Beijing lawyer Gao Zhisheng, imprisoned, tortured and made to 'disappear.'
The United States is willing to engage China as an ally and partner in finding solutions. The American people are flexible and pragmatic, but they hold dear to their hearts respect for liberty and human dignity. They will not give these ideals up for expediency's sake.
I look forward to working with you to achieve our common purpose: a world that is safer, cleaner and healthier than the one we found; and a future that is worthy of the children in China, in the United States, and in the world. Thank you."
Xiaorong Li is a research scholar at the Institute for Philosophy & Public Policy, University of Maryland, College Park, who does consultant work for Chinese NGOs.
Copyright © 2009, The Baltimore Sun
Thursday, April 30, 2009
Václav Havel Honors a Chinese Prisoner
New York Review of Books, Volume 56, Number 7 · April 30, 2009
Letter to the editor
In response to China's Charter 08 (January 15, 2009)
A link to China's Charter 08
To the Editors:
Readers may be interested to know that Liu Xiaobo, a Beijing-based dissident now being held by Chinese authorities, and the other signatories of Charter 08, have received the 2008 Homo Homini Award in Prague. The award, which was presented by former Czech president Václav Havel on March 11 on behalf of the Czech-based organization People in Need, is given each year to someone who has "made an important contribution to promoting human rights, democracy and non-violent resolution of political conflicts."
For over three months, Liu has been held in incommunicado detention without access to a lawyer, in violation of Chinese law, for his involvement in the creation of Charter 08. Inspired by the 1977 Czech and Slovak protest movement Charter 77, of which Václav Havel was a founding member, Charter 08 is a document signed by more than eight thousand Chinese citizens that calls for greater respect for individual rights and democratic reform in China ["China's Charter 08," NYR, January 15]. Since Liu's detention, his wife has been able to pay him only two visits, under severely restricted circumstances. His current whereabouts are unknown.
The award was accepted on Liu's behalf by Xu Youyu, a political philosopher and writer, Cui Weiping, a literary critic, and Mo Shaoping, a leading human rights lawyer. In presenting the award, Havel said:
I would like once more to point out our experience, one that our Chinese friends should adopt in one way or another, the experience that one may never reckon with success, one may never reckon with the situation changing tomorrow, the day after tomorrow, or in ten years. Perhaps it will not. If that is what you are reckoning with, you will not get very far.
However, in our experience, not reckoning with that did pay in the end; we found that it was possible to change the situation after all, and those who were mocked as being Don Quixotes, whose efforts were never going to come to anything, may in the end and to general astonishment get their way. I think that is important. In a peculiar way, there is both despair and hope in this. On the one hand we do not know how things will end, and on the other, we know they may in fact end well.
...It is our experience—and this is perhaps more an appeal to our ranks—that international solidarity is very important and valuable. It helps, even if only as an encouragement to us, rather than as an argument convincing the powers that be. Having had firsthand experience with a totalitarian system and dictatorship ourselves, it is thus our duty to help those who are yet not able to enjoy freedom.[*]
Li Xiaorong
University of Maryland
College Park, Maryland
Notes
[*]The complete text of Havel's remarks and acceptance speeches by Xu and Cui.
Letter to the editor
In response to China's Charter 08 (January 15, 2009)
A link to China's Charter 08
To the Editors:
Readers may be interested to know that Liu Xiaobo, a Beijing-based dissident now being held by Chinese authorities, and the other signatories of Charter 08, have received the 2008 Homo Homini Award in Prague. The award, which was presented by former Czech president Václav Havel on March 11 on behalf of the Czech-based organization People in Need, is given each year to someone who has "made an important contribution to promoting human rights, democracy and non-violent resolution of political conflicts."
For over three months, Liu has been held in incommunicado detention without access to a lawyer, in violation of Chinese law, for his involvement in the creation of Charter 08. Inspired by the 1977 Czech and Slovak protest movement Charter 77, of which Václav Havel was a founding member, Charter 08 is a document signed by more than eight thousand Chinese citizens that calls for greater respect for individual rights and democratic reform in China ["China's Charter 08," NYR, January 15]. Since Liu's detention, his wife has been able to pay him only two visits, under severely restricted circumstances. His current whereabouts are unknown.
The award was accepted on Liu's behalf by Xu Youyu, a political philosopher and writer, Cui Weiping, a literary critic, and Mo Shaoping, a leading human rights lawyer. In presenting the award, Havel said:
I would like once more to point out our experience, one that our Chinese friends should adopt in one way or another, the experience that one may never reckon with success, one may never reckon with the situation changing tomorrow, the day after tomorrow, or in ten years. Perhaps it will not. If that is what you are reckoning with, you will not get very far.
However, in our experience, not reckoning with that did pay in the end; we found that it was possible to change the situation after all, and those who were mocked as being Don Quixotes, whose efforts were never going to come to anything, may in the end and to general astonishment get their way. I think that is important. In a peculiar way, there is both despair and hope in this. On the one hand we do not know how things will end, and on the other, we know they may in fact end well.
...It is our experience—and this is perhaps more an appeal to our ranks—that international solidarity is very important and valuable. It helps, even if only as an encouragement to us, rather than as an argument convincing the powers that be. Having had firsthand experience with a totalitarian system and dictatorship ourselves, it is thus our duty to help those who are yet not able to enjoy freedom.[*]
Li Xiaorong
University of Maryland
College Park, Maryland
Notes
[*]The complete text of Havel's remarks and acceptance speeches by Xu and Cui.
Saturday, February 28, 2009
Only a Matter of Speech? Secretary of State Hilary Clinton's China Blunder
Words can topple regimes or shatter lives. That is more so about words uttered at important occasions by public figures with clout. What President John F. Kennedy told the crowds at the Berlin Wall “Tonight, we’re all Berliners!” and what Martin Luther King declared on the National Mall “We have a dream, one day…” have made imprints in change of course in history.
What Hilary Clinton told journalists on Feb. 20, on her way to China for a first visit as the top US diplomat, cannot be cast away into thin air as merely words. She said that human rights “can’t interfere with the global economic crisis, the global climate change crisis and the security crises.” For all sides, these words have weight because they indicate the Obama Administration’s yet-to-be articulated China police.
Ms. Clinton’s words were ostentatiously quoted in an official Chinese Xinhua News Agency editorial on Feb. 23. Xinhua couldn’t help comparing Ms. Clinton’s tip-toeing around human rights to her well-known strong words about human rights and women’s rights when she attended the World Forum on Women in Beijing in 1995 as the first lady of the US, and her call last year, as a senator from NY, for President Bush to boycott the opening ceremony of the Olympics to protest human rights abuses and repression in Tibet. Headlines across other official newspapers had the air of triumphantly celebration of the retreat of US pressure on human rights during Clinton’s two-day visit. Huanqiu (World), a hardliner newspaper run by the Ministry of State Security, had a long front page story titled “Clinton Visiting China Avoided Human Rights!”
Chinese human rights activists and dissident intellectuals, many of whom were put under house arrest or surveillance in and around Feb. 20-22, were indignant upon learning Ms. Clinton’s deliberate choices of words.
“I didn’t plan to meet her and now I have less interest in bothering her now since she has placed human rights at the bottom of her agenda!” said Weise, a Tibetan poet/writer who lives in Beijing.
“I told the police who followed me that I was going to my church, an officially banned house church, and Clinton was going to an officially hand-picked church – we had nothing to do with each other! Why you are wasting your time monitoring me? I bet she dared not to mention persecution of house-church Christians to avoid ‘interference’ with her talk here about N. Korea and trade problems!” said another Beijing dissident writer.
“I went over the list of women whom Clinton met. Except for Gao Yaojie, a veteran AIDS doctor, the others are all from pro-government or government-organized ‘non-governmental organizations’”, another Beijing intellectual told me. During the one-hour meeting with these women, Clinton said nothing about women’s rights or human rights, according to Ms. Gao, the AIDS doctor.
Glaringly missing from the women’s gathering were the Tiananmen Mothers who have been seeking justice for their loved ones killed twenty years ago by government troops who crushed pro-democracy protester in Beijing; also uninvited was Zeng Jinyan, an AIDS activist and the wife of Hu Jia, also an AIDS activist who is serving a three-and-half year sentence for “inciting sedition against state power;” and yet another woman who should have been invited is Liu Xia, an artist, who has been asking the police in vain for the whereabouts of her husband, Liu Xiaobo, a dissident writer, who was detained on suspicion of drafting a widely popular manifesto of political reform known as “Charter 08.”
Ms. Clinton’s political postures on her China trip are painful to watch. They shamed us Americans. They signal a callousness to those Chinese who have suffered from their struggle for justice, freedom, and democracy – the values that define what America is about. Ms. Clinton’s usual compassion for injustice and for those who suffer is lost in crude calculations of political gains from the Chinese leaders.
What should concern us most may not be Ms. Clinton’s words of choice but the fact that it may have given substance to the unrevealed China policy of the Obama Administration. To be true to his inaugural speech, Mr. Obama should shun from thorny issues – human rights, Tibet, etc. – in dealing with the Chinese leaders, who by nobody’s stretch of imagination belong to the ranks of “those who cling to power through corruption and deceit and the silencing of dissent”, those who are “on the wrong side of history”.
Feb. 26, 2009
What Hilary Clinton told journalists on Feb. 20, on her way to China for a first visit as the top US diplomat, cannot be cast away into thin air as merely words. She said that human rights “can’t interfere with the global economic crisis, the global climate change crisis and the security crises.” For all sides, these words have weight because they indicate the Obama Administration’s yet-to-be articulated China police.
Ms. Clinton’s words were ostentatiously quoted in an official Chinese Xinhua News Agency editorial on Feb. 23. Xinhua couldn’t help comparing Ms. Clinton’s tip-toeing around human rights to her well-known strong words about human rights and women’s rights when she attended the World Forum on Women in Beijing in 1995 as the first lady of the US, and her call last year, as a senator from NY, for President Bush to boycott the opening ceremony of the Olympics to protest human rights abuses and repression in Tibet. Headlines across other official newspapers had the air of triumphantly celebration of the retreat of US pressure on human rights during Clinton’s two-day visit. Huanqiu (World), a hardliner newspaper run by the Ministry of State Security, had a long front page story titled “Clinton Visiting China Avoided Human Rights!”
Chinese human rights activists and dissident intellectuals, many of whom were put under house arrest or surveillance in and around Feb. 20-22, were indignant upon learning Ms. Clinton’s deliberate choices of words.
“I didn’t plan to meet her and now I have less interest in bothering her now since she has placed human rights at the bottom of her agenda!” said Weise, a Tibetan poet/writer who lives in Beijing.
“I told the police who followed me that I was going to my church, an officially banned house church, and Clinton was going to an officially hand-picked church – we had nothing to do with each other! Why you are wasting your time monitoring me? I bet she dared not to mention persecution of house-church Christians to avoid ‘interference’ with her talk here about N. Korea and trade problems!” said another Beijing dissident writer.
“I went over the list of women whom Clinton met. Except for Gao Yaojie, a veteran AIDS doctor, the others are all from pro-government or government-organized ‘non-governmental organizations’”, another Beijing intellectual told me. During the one-hour meeting with these women, Clinton said nothing about women’s rights or human rights, according to Ms. Gao, the AIDS doctor.
Glaringly missing from the women’s gathering were the Tiananmen Mothers who have been seeking justice for their loved ones killed twenty years ago by government troops who crushed pro-democracy protester in Beijing; also uninvited was Zeng Jinyan, an AIDS activist and the wife of Hu Jia, also an AIDS activist who is serving a three-and-half year sentence for “inciting sedition against state power;” and yet another woman who should have been invited is Liu Xia, an artist, who has been asking the police in vain for the whereabouts of her husband, Liu Xiaobo, a dissident writer, who was detained on suspicion of drafting a widely popular manifesto of political reform known as “Charter 08.”
Ms. Clinton’s political postures on her China trip are painful to watch. They shamed us Americans. They signal a callousness to those Chinese who have suffered from their struggle for justice, freedom, and democracy – the values that define what America is about. Ms. Clinton’s usual compassion for injustice and for those who suffer is lost in crude calculations of political gains from the Chinese leaders.
What should concern us most may not be Ms. Clinton’s words of choice but the fact that it may have given substance to the unrevealed China policy of the Obama Administration. To be true to his inaugural speech, Mr. Obama should shun from thorny issues – human rights, Tibet, etc. – in dealing with the Chinese leaders, who by nobody’s stretch of imagination belong to the ranks of “those who cling to power through corruption and deceit and the silencing of dissent”, those who are “on the wrong side of history”.
Feb. 26, 2009
Tuesday, January 20, 2009
China's Human Rights under Magnifying Glasses
- 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)
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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