Details

Autor(en) / Beteiligte

• Mitchell, Ryan

Titel

THE EMERGING CHINESE MODEL OF STATIST HUMAN RIGHTS

Ist Teil von

• American University international law review, 2022-05, Vol.37 (3), p.617-671

Ort / Verlag

Washington: American University

Erscheinungsjahr

2022

Quelle

Business Source Ultimate【Trial: -2024/12/31】【Remote access available】

Beschreibungen/Notizen

• "1 The comment was issued as part of a message to attendees of a symposium held in Beijing to commemorate the UDHR, celebrate China's progress in realizing its aims, and articulate an officially-sanctioned vision of future action.2 The Beijing conference, organized by the China Foundation for Human Rights Development and the China Society for Human Rights Studies (CSHRS), both state-affiliated organizations, featured government officials, academics, and others involved in state sanctioned human rights work.3 One of the highest-ranking officials present was the Vice-Chairman of China's legislature, Qiangba Puncog, an ethnic Tibetan, former governor of Tibet, and current director of the CSHRS.4 Qiangba Puncog stated that such events were a good opportunity to transition from a passive posture of accepting rights norms promulgated by Western states to actively promote "Chinese proposals for ensuring human rights . . . and developing human rights together globally for shared prosperity. Both, remain subordinated to "third generation"9 rights of peace and development-now however redefined as "values" and signifying above all preservation of the international status quo regarding state sovereignty as well as a global economic architecture favoring continued growth over projects of redistribution-are now the foundations of China's proposed post-liberal,10 but also in important respects post-socialist, future for international human rights.11 The formerly insurgent discourse of a "right to development" has now declined in favor of a view on global political economy that does not challenge, but explicitly seeks to reinforce or co-opt existing structures. II.HUMAN RIGHTS AND THE FORMATION OF THE CHINESE PARTY-STATE There was no ideological monopoly on the imported concept of "human rights" (renquan AN) in early 20th century China.12 Before the fall of the Qing Dynasty in 1911, renquan had been introduced as a subject of intellectual discourse and political debate.13 Foreign texts on law and politics, such as the 1789 Déclaration des droits de l'homme et du citoyen,14 were being translated and published in China alongside more recent debates and interpretations like those of the influential Heidelberg jurist Georg Jellinek15 and the Japanese scholar Kato Hiroyuki,16 both of whom viewed the state as the indispensable medium for realization of individual rights.17 Chinese students and exiled intellectuals encountered such ideas in Japan (primarily) as well as in the West, and they played an important role in the evolving concept of renquan.18 Thought leaders, such as constitutional reformer Liang Qichao, advocated a "rights consciousness" (quanli yishi ...) building on these statecentric views as well Jhering's historicized notion of rights emerging from a culturally-contingent Rechtsgefühl.19 The initial reception of "human rights" and of the related concept of "people's rights" or "civil rights" (minquan ...) in China was thus highly ambivalent.20 Although certainly associated with notions of individual legal protection in the face of arbitrary power, "people's rights" or "civil rights" were simultaneously tied to the notion of the need for a strong, legislatively-capable state, and culture of legality, to be constructed in order for such rights to be conferred and protected in the first place.21 During the decades of political crisis and civil war that China endured between 1912 and 1949, renquan discourse became most notably associated with the cadre of liberal intellectuals espousing moderate reformist positions within the Republic of China.22 Among such figures' efforts, P.C. Chang's participation in the drafting of the UDHR is emblematic of an approach favoring active participation in international human rights discourse.23 Meanwhile, both the Chinese Communist Party and influential ultra-conservative elements within the Nationalist Party (Guomindang) cast doubt on the utility of renquan as a legal or political concept, sometimes for different reasons.24 For Communistaligned writers in particular, debunking the utility of moderate reformist calls for human rights was an important aspect of ideological struggle-these writers argued that legally-defined rights were a formalistic distraction from the revolutionary struggle of the proletariat to achieve real emancipation.25 On the other hand, the concept itself was not wholly rejected.26 "Rights" were endorsed in general throughout the civil war as well as after the PRC's founding in 1949 by Communist authorities, though they were often conceived in political, not judicialized terms.27 During the PRC's first decade, Chinese Communist authorities grappled with the project of reconciling a progressive position on international law and diplomacy with their government's ostracized status as a non-UN member.28 The foundation of China's subsequent foreign policy (still endorsed today) was the concept of the "Five Principles of Peaceful Coexistence" which sought to reinterpret Charter norms on state sovereignty and mutual non-interference as guarantees of existential security for decolonized states.29 The PRC's posture towards the UDHR reflected these tensions. China, along with other states present at Bandung, signed onto the declaration stating that claims to autonomy by currently or formerly colonized peoples were an embodiment of the principles of human rights contained in the UDHR.31 The proposal for inclusion of this reference originated with the atypically liberal and pro-American Lebanese delegate (and UDHR co-drafter) Charles Malik, and it did not reflect a more general concern with "human rights" (especially if defined as individual rights) by China or most other Bandung participants.32 On the other hand, it did signify willingness to reappraise and reinterpret human rights to bring to the fore their (as noted above, already existing) state-supporting connotations.33 The notion of Third World solidarity allowed the vocabulary of rights, and documents such as the UDHR, to be assimilated to China's position on the UN Charter itself.34 While by no means free from bourgeois ideology and Western agendas, UDHR nonetheless represented core universal norms-above all those related to state sovereignty, prohibition of aggression, and non-interference- needed to establish international peace and progress for formerly oppressed peoples.35 Taking up this association, various Third World states argued that "the right of self-determination" should be included in ongoing multilateral plans to draft an "International Bill of Rights"-a view supported at the time by leading PRC international law scholars.36 Though the "Bill" eventually culminated in the ideological and legal split between the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), each began with an article endorsing the right of self-determination and opened for signing in 1966.37 China, still not a UN member state, would not sign either Covenant until three decades later, however, it continuously endorsed the right of self-determination as an international legal norm.38 During the period of high Maoism, from the late 1950s-mid1970s, domestic official discourse provided very little space for renquan given the term's continued bourgeois associations both internationally and domestically.39 Meanwhile, self-determination remained the key "right" that Chinese authorities continued to volubly endorse in both settings.40 Despite various post-Bandung diplomatic ruptures, China continued to emphasize its position of solidarity with international anti-colonial struggle.41 Following its 1971 replacement of the Taiwan-based Chiang Kai-shek regime as the legal representative of "China" in the UN, the PRC volubly advocated a stance within UN organs favoring self-determination and mutual assistance of Third World states, as opposed to "imperialistic" efforts by both the Soviet Union and United States, to determine international norms.42 This agenda continued to have an association, if an ambiguous one, with the vocabulary and institutions of international human rights.43 China's most relevant activities in this regard were undertaken via the Economic and Social Council (ECOSOC), in which the Chinese delegate An Zhiyuan marked China's first appearance in a plenary session with an address noting "the great historical trend of [recent] times: countries wanted independence, nations wanted liberation, and the people wanted revolution.