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International Human Rights, Law, Order, and Society in Modern China

Introduction

People’s Republic of China has embarked on a path of legal reform during the past three decades. China

has demonstrated a keen interest in learning from the experience of developed nations in establishing a

functioning legal system that would successfully complete its transformation to a market economy. Chinese

law on taxation has been heavily influenced by the U.S. tax system; and in the area of patents, designs, and

trademarks, China has adopted European legal principles. Similarly in the area of environmental regulation it

has followed the lead of American and Canadian environmental protection system. However, China has been

highly resistant to changing its domestic criminal law, adopting standard judicial procedures such as due

process, rights to representation, introducing transparency into its judicial system, and enabling the effective

functioning of an independent judiciary. These changes have a direct bearing upon China’s participation and

resistance towards international human rights treaties and acceptance of international law.

China’s legal system has failed to meet the expectations of conventionally accepted international human

standards, established by the United Nations. In fact, the Chinese government has been very hesitant or even

hostile to the idea of introducing or transplanting Western-leaning criminal law and its associated protections

that privilege civil and political liberties. Particularly, the PRC government is very sensitive to the underlying

values and principles of foreign laws and worries about the potential impact of these laws on its political

structure. Despite limited reforms introduced in the area of economic and commercial law, China has

demonstrated some resistance to international law and has attempted to transplant certain modern legal practices

without fundamentally accepting the underlying values and cultural implications.

This project sets out to examine why China has been wary of international law in general and why it has

shown resistance to reforming its criminal legal system, refused to accord greater civil and political liberties,

and failed to respect human rights. I suggest that the answer to this question abides in three interrelated factors.

First, China’s attitude towards international law and Western political influence was shaped by its historical

experience. Importantly, the colonial experience that eventually led to the dissolution of the Chinese empire.

Second, both the pre-Mao imperial system and post-imperial Mao’s socialist order was structured on the legal

philosophy that does not recognize the concept of “individual rights.” The notion of “individual rights” and

legal system that seeks to protect the individual from the power of the state is in many ways the edifice of the

modern Western legal systems. The Chinese government, on the other hand, sees law as a punitive mechanism

required to control its citizens. Thirdly, the oppressive party-state has posed the biggest hurdle to the

reformation of the Chinese legal system because it fears that emphasis on individual rights will cause luan

(chaos), i.e., widespread social upheaval, which will destroy the collectivist culture of the Chinese society. This

paper will discuss how these three factors have colluded to affect the attitude of the Chinese government

towards international human rights law and its unwillingness to reform its legal system, particularly in the area

of protection of human rights, despite occasional international pressure.

The following sections of the paper are divided into three parts. The first part discusses how the ancient

Confucian philosophy influenced the development of Chinese legal doctrine, and how the experience of

Imperial China affected its attitude towards international law and Western legal traditions. Second part of this

paper analyzes how Maoist ideology influenced China’s attitudes towards international law of human rights and

how it also influenced the domestic legal system. The third section is divided into multiple parts, which

describes how the transition to market economy engineered by Deng Xiaoping produced gradual, but limited

reform of the legal system. This section shows how international economic and political pressure has forced

China to make some changes in its domestic human rights law. Nonetheless, China continues to resist making

genuine reforms in this area and still relies on oppression and force to govern. The last section concludes by

examining China’s human rights policies in the post-Tiananmen era and discusses the limitations of relying

purely on an economic approach to induce China to adopt genuine legal reforms.

Notions of Law and Order in China: Confucianism and Legalism

2

China’s conception of law, order, and rights has been shaped by the doctrine of Confucianism and the

competing doctrine of legalism.1 Confucianism is primarily concerned with the moral code of conduct (li). It

embodies the rules of “propriety, ethics, and moral rules of conduct.” Importantly, the code of li represents

social norms that are internalized through routine social practices such as greeting strangers on the street.2 The

legal structure fa operates to punish the violators of li. According to traditional Chinese legal system, the code

of li is enforced by society and the state enforces fa, but various Chinese emperors have emphasized different

versions of li and fa. 3 Confucius urged Chinese rulers to rely on li rather on fa because reliance on fa, which

involved use of coercion and force, only breeds resentment and anger towards the ruler.4 The Confucian model

of social organization is based on a hierarchical system of ethics, which assigned pre-determined social roles. It

privileged certain members of the society according to family and social status.5 Importantly, the Confucian

social order was based on the fulfillment of certain social and familial roles according to each individual’s

position within the family and society. It was believed that if individuals fulfilled their appropriate social

obligations then social harmony would prevail.

The idea of harmony is central to Chinese societal organization. Harmony is essential for family life,

social relations, and the relationship between ruler and his subjects.6 Individuals are expected to place

collective interests, i.e., the interests of family and society ahead of personal desires. Preoccupation with one’s

personal interests is considered to be selfish and immoral. If someone is entangled in a conflict, it is generally

imprudent to pursue the conflict towards its bitter end, even if they are right because it would only worsen the

enmity.7 The notion of resolving conflicts in a non-confrontational manner is prevalent even today. This

attitude permeates Chinese attitudes towards legal wrangling and lawsuits. Confucian practice of reciprocity

and compromise is meant to encourage harmony. Pursuit of private interests is thought to produce social

disharmony, which underscores the need for fa—the system of punishment imposed by the state.8 The

Confucian system emphasized the importance of subordinating individual interests to collective goals of a

society.

3

Many scholars have suggested that the notion of individual rights as espoused by Western thinkers is

antithetical to the Confucian system. However, Confucian ethics has a different interpretation of freedom and

rights. In the Confucian or in the Chinese legal order, “individual rights” or “individual sovereignty” as

understood in Western societies is an alien concept. Notions such as political freedom and freedom of

expression are not identified by Confucius. To Confucius, “to be free from everything—free from other men,

free from law, free from thought, free from sense…is to be nothing.” 9 The idea of unlimited freedom is

considered to be unrealistic and almost nihilistic, and it is not sanctioned by Confucian ethics. Freedom in the

Confucian ethical scheme is characterized by the freedom to do good (jen) or the freedom to choose what is

good.10 However, this freedom is governed by jen and by the constraints of family, society, and government.

The individual is never viewed in isolation from family and society; the individual is seen as a part of the larger

social collective. Every person in a society has assigned social roles. Efficient functioning of a society depends

on every person fulfilling his or her assigned social roles. Hence, emphasis is placed on the performance of

duties in a harmonious way. According to Confucian ethics, performing one’s duties is more important than

claiming one’s rights.11 The Confucian hierarchical system assigned defined roles based on the wulan or five

relationships: (1) Ruler/Minister; (2) Father/Son; (3) Elder Brother/Younger brother; (4) Husband/Wife; and (5)

Friend/Friend.12 It was expected that by fulfilling these social roles and duties assigned to each relationship, an

individual contributed towards the development of a society. Confucianism saw the system of family and social

rules to be a self-regulating system that was based on moral rules of propriety. Furthermore, Confucian social

order stressed the importance of selflessness, the art of compromise, and adjustment for social harmony. A

person’s social worth was determined by his or her contribution to family and society. Confucius regarded

individuals as a roots and the society as leaves.13 Hence, duty to regulate oneself, i.e., self-introspection, was

primary, followed by the duty to family, society, and government. The idea of individualism articulated by

Confucian social ethic is distinctively different from Western social thought. Particularly, characterization of

individuals as roots or as foundations for the development of a functioning society reflects China’s unique value

system.14

4

In contrast to the Western legal order, which emphasizes protection of individual rights and seeks to

protect individuals from oppression of the state, the Confucian system placed value on collective interests and

saw the state as a benevolent protector that defends collective interests and punishes individuals who deviate

from established social norms. Hence, Chinese social order is organized to be self-regulating. The need for law

and sanctions arises only when social deviance and disharmony prevails, whereas the modern Western legal

systems operate horizontally, i.e., proceeding from autonomous individuals, to society, and then to the state.15

The dominance of Confucianism philosophy in the Chinese society was principally due to the

codification or transformation of Confucian ethic into a formal legal code (fa) beginning with the Han period

(206 B.C – 220 A.D). Han rulers, subsequently T’ang (618 – 907 A.D), and Chi’ing rulers (1644 – 1911 A.D)

were continually involved in the process of “legalization of Confucianism,” or “Confucianization of law.”16

This process is also described as “yin-yang Confucianism” in which Confucian moral ethics became polarized

into morality and law, while morality was governed by individual actions; law became the domain of the state. 17

Any violations of Confucian morality became automatically punishable under the law. In fact, the expansion of

Han, T’ang, and Chi’ing empires were made possible not through the private practice of Confucian ethics, but

through the means of a penal system, and coercive use of state, which reserved harsh punishment for violators

of legalized Confucian ethics.

Legalization of Confucian morality actually led to complete subordination of the individual to the

collective—the state—which became an omnipotent entity that rejected “private standards of right and wrong,”

and decried that there is “no authority above the state,” and no law superior to the “positive laws of the state.”18

The emperor after all ruled with the ‘mandate from heaven,’ which concentrated extraordinary amount of power

in the hands of the emperor and state organs. Legalization of Confucian thought led to the development of

totalitarian and militaristic culture and on ideology that was self-perpetuating.19

Imperial China’s World Order

5

Social and political life in Imperial China evolved over two millennia. The system was based on a

combination of fa and li, which led to the development of a strict penal code that was derived from discourses

on moral ethics articulated by Confucius and other philosophers. Imperial China’s relations with its neighbors

were also governed by Confucian principles in the same way individual and family relations were regulated by

a system of social hierarchy. Just as in the Confucian social order where every individual had a assigned social

role, which directed their relations with others in their family and with the outside world, China assumed the

mantle of family head in its relations with its neighbors, and neighbors also seemed to accept their tributary

status.20 Imperial China looked upon herself as being at the “center for the world.”21 As the European states

were dominant powers within their spheres of influence, China was the ascendant state in the East Asian realm

and it used its self-importance to preside over relations with other East Asian states.22 Such relations involved

both rights and duties on the part of tribute-receiving and tribute-paying states. Above all, Imperial China had

responsibilities towards its tributaries in the same way a family head had obligations towards his family

members.

China recognized its tributaries by sending and receiving special emissaries, especially when new kings

were anointed in tribute-paying states, and assisted tributaries during economic and political crisis by providing

monetary and military aid.23 For instance, the Ming rulers provided extensive military assistance to Korea when

Japan’s Hideyoshi invaded Korea at the end of sixteenth century.24 At the same time, tributaries accepted the

supremacy of Imperial China and paid periodic homage to Chinese emperors as determined by emperor’s

calendar. The tribute-bearers were escorted by Chinese special emissaries along an pre-determined route,

housed in special quarters during their stay in the imperial capital, and were escorted back to their countries

once ceremonies were completed.25 Importantly, tribute-bearers were expected to perform the ritual of kowtow,

which involved “three kneelings and nine knockings of the head on the ground” in the presence of the emperor

at the imperial court.26 In exchange, the emperor bestowed gifts and other tributes greater in value than those

offered by the tributaries.

6

Chinese political philosophy was based on a system of Confucian order in which the states have to know

their setting in the Chinese world order, in the same way individuals in a family know their hierarchy within a

family. Once this order is determined, inter-state relations can be conducted smoothly. During the imperial era,

China regarded itself as privileged in every possible way in its relations with neighboring states because the

Chinese emperor was regarded as the Son of Heaven, who ruled with the Mandate from Heaven.27 In other

words, Imperial China considered herself to be governed by a divine mandate. If neighbors weren’t tributaries,

they were treated as barbarians or as uncivilized groups. Barbarians were kept outside the domain of Imperial

Chinese Empire and residents within the empire were forbidden to have interactions with barbarians, lest they

pollute the civilized practices of China.28 Imperial China did not have specific foreign policy towards

barbarians; it did not seek to vanquish them as long as barbarians were prevented from consorting or mingling

with civilized Chinese. However, if barbarians assimilated themselves into the Chinese way of life, they were

accepted as reformed members of Chinese society. Division of the world into tributaries and barbarians defined

the traditional Chinese world order. Within this order, there was no sovereign equal to Imperial China. You

were either a barbarian or a tribute-paying state. Coherence of Imperial China’s world order began to erode or

rather shatter as its contact with Western powers grew.

European norms of inter-state relations dictated that establishment of a foreign office and diplomatic

outposts to be central in conducting a nation’s business with other sovereign equals. However, such a

conception was lacking among Manchu rulers because it simply did not recognize or did not have a system

thorough which to identify foreign countries as sovereign equals. The Ch’ing administration was adamant in its

insistence on treating Western emissaries either as tributaries or as barbarians.29 Western powers were not

allowed to set-up permanent missions or diplomatic outposts in Chinese territory because such customs were

not prevalent in Imperial China’s relations with its tributary states. Visiting envoys from tributary states were

escorted back to their home countries after their meeting with the emperor. Similarly, when Chinese envoys

visited tributary states they were also eager to return home. Imperial China did not desire to establish

permanent missions even among tributary states.

7

Initially, early Western missions relented and played the role of tributaries. Sixteen Western missions to

China from 1655 to 1795 during the Ch’ing period performed the ceremonial ritual of kowtow, which allowed

the Ch’ing emperor to treat Western powers as tributaries rather than as equals. They were granted some

trading privileges, and China allowed private Western traders to visit its ports and live in its port cities, not as

tributaries, but as barbarians. However, Western powers were not granted rights to establish diplomatic

missions because such practices were not consistent with Imperial China’s relations with tributary states. The

first legation was not granted by China until 1858, when Lord Elgin of Britain won such rights with the backing

of British royal navy.30

China and International Law: The Manchu and the Post-Manchu Period

China’s understanding of international law is deeply influenced by its historical experience with

Western powers and by its Confucian roots. During the imperial era, Chinese worldview was not adjusted to

the idea of treating maritime Western powers as sovereign equals, and according them the respect that visiting

dignitaries enjoyed in other European capitals. Imperial China’s binary categorization of foreign states into

tributaries and barbarians made it difficult for the Ch’ing imperial court to accommodate the demands of

European diplomatic law, which formed the basis of interaction among Western states.

Modern international law, as many legal scholars have pointed out emerged out of the interactions

among continental European powers and Great Britain, somewhere in the middle of seventeenth century. Law

that governed relations among sovereign states was based both on customs and treaties negotiated to define

specific aspects of inter-state relations that were unique to Europe. International law grew out of the need for

order, predictability, stability, and recognized standards for official conduct of business among sovereign

entities.31 Since modern international law emerged out of the practices of European states, it retained its

distinctive European cultural and diplomatic ethic. When the international state system began expanding and

when the colonial empires of European powers began to grow, they increasingly came into contact with empires

8

in China, Japan, and India. Political order in Asia was distinctively different, which amplified conflicts between

European and East Asian powers.

A state’s association with international law to a large extent depends upon its relationship or sense of

identity with the community of nations within which it functions.32 European powers regarded modern

international law, which resulted from their common experience, as a mechanism to regulate relations among

1 Luke T. Lee, China and International Agreements: A Study in Compliance (Durham, N.C: Rule of Law Press, 1969), p. 134.

2 Herbert Fingarette, Confucius—The Secular as Sacred (New York, NY: Harper Books, 1972), p. 8-9.

3 Robert Weatherley, The Discourse of Human Rights in China: Historical and Ideological Perspectives (London, UK: Macmillan Press, 1999), p. 3.

4 Herbert, Confucius—The Secular as Sacred, p. 8.

5 Weatherley, The Discourse of Human Rights in China, p. 37.

6 John C.H. Wu, “Chinese Legal and Political Philosophy,” in The Chinese Mind: Essentials of Chinese Philosophy and Culture, ed., Charles A. Moore (Honolulu, University of Hawaii Press, 1967), p. 227.

7 Wu, “Chinese Legal and Political Philosophy,” p. 227.8

? Weatherley, The Discourse of Human Rights in China, p. 37.

9 F.H. Bradley, Ethical Studies (Oxford, UK: Oxford University Press, 1927), p. 26; cited in Hsieh-Yu-Wei, “The Status of the Individual in Chinese Ethics,” in The Chinese Mind, p. 310.

10 Hsieh-Yu-Wei, “The Status of the Individual in Chinese Ethics,” in The Chinese Mind, p. 310.

11 Hsieh-Yu-Wei, “The Status of the Individual in Chinese Ethics,” in The Chinese Mind, p. 314.

12 Weatherley, The Discourse of Human Rights in China, p. 38.

13 Hsieh-Yu-Wei, “The Status of the Individual in Chinese Ethics,” in The Chinese Mind, p. 314.

14 Y.P. Mei, “Status of the Individual in Social Thought and Practice,” The Chinese Mind, p. 327.15

? See Derk Boode, Essays on Chinese Civilization (Princeton, NJ: Princeton University Press, 1981).

16 John C.H. Wu, “The Individual in Political and Legal Traditions,” in The Chinese Mind, p. 343.

17 Wu, “The Individual in Political and Legal Traditions,” p. 344.18

? Wu, “The Individual in Political and Legal Traditions,” p. 342.

19 See Ch’ü T’ung-tsu, Law and Society in Traditional China (Paris, France; Mouton & Company, 1961).9

sovereign nations. However, Imperial China’s historical experience was completely different. For more than

2000 years, Imperial China had grown accustomed to its role as the middle kingdom. In which the Chinese

emperor was at the center of universe and all power and wealth was said to flow from the emperor. According

to Imperial China’s hierarchical worldview, all other regions of the world were fundamentally subordinate to

the middle kingdom. Therefore, its worldview and political philosophy conflicted with modern European

international law because it failed to recognize Imperial China’s superior position. For instance, it could not

even accept the idea of granting rights of legation to Britain until coercion was threatened because it could not

simply conceptualize treating Western powers as China’s co-equal.

China’s understanding of international law, particularly treaty-based international law developed in

response to growing contacts with Western powers, which began expanding their contacts with foreign

powers.33 This Western expansion was the result of intra-European competition for new lands and trading

20 See Immanuel C. Y. Hsü, China’s Entrance into the Family of Nations: The Diplomatic Phase, 1858-1880 (Cambridge, MA: Harvard University Press, 1960), p. 3-4.

21 James Chieh Hsiung, Law and Policy in China’s Foreign Relation: A Study of Attitudes and Practice (New York, NY: Columbia University Press, 1972), p. 11.

22 Jeorme A. Cohen and Hungdah Chiu, People’s China and International Law: A Documentary Study, Vol. I (Princeton, NJ: Princeton University Press, 1974), p. 3.

23 Immanuel Hsü, China’s Entrance into the Family of Nations, p. 4.

24 Hsü, China’s Entrance into the Family of Nations, p. 4.

25 Hsü, China’s Entrance into the Family of Nations, p. 4-5.

26 Hsü, China’s Entrance into the Family of Nations, p. 4-5.27

? S.J. Marshall, The Mandate of Heaven: Hidden History in the I ching (New York: Columbia University Press, 2001).

28 Hsü, China’s Entrance into the Family of Nations, p. 7.29

? Hsü, China’s Entrance into the Family of Nations, p. 13.

30 Hsü, China’s Entrance into the Family of Nations, p. 13.

31 Oliver J. Lissitzyn, International Law Today and Tomorrow (Dobbs Ferry, NY: Oceana, 1965), p. 68-71.32

? Hsiung, Law and Policy in China’s Foreign Relations, p. 13.

10

partners, which led them to discover new maritime routes to previously unknown lands. Imperial China was

highly reluctant to engage with Western maritime powers and did not demonstrate any urgency in adopting the

rules of Western international law. Much of Imperial China’s dealings with Western powers were characterized

by violence and war, in which the Chinese felt that they had been forced into unequal bargains.34 Hence, post-

Manchu governments were highly distrustful of international law and viewed it as a tool of Western imperialism

and conquest.

All the treaties that China concluded between 1800-1900 are generally referred to as unequal treaties.35

Prior to its dealings with Western powers, the preceding Chinese empires dealt with tributary states or client

states that had to pay tithe and other gifts to Chinese emperors. China considered herself to be unequalled and

unrivalled in power, wealth, and the divine mandate from heaven gave Chinese emperors the right to rule its

subjects as it deemed fit.36 A hierarchical system of exchange prevailed between China and its various tributary

states that put China in a privileged position. Before 1500 AD, China had very little contact with the external

world, particularly with the Western world. When contacts with Western governments grew, China, which was

so imbued with by the superior-inferior relationship, it expected Western governments to accord the Imperial

emperors the same deference and respect shown by its tributary states.37 Many Western emissaries where

particularly opposed to performing the ritual act of kowtow before the Chinese emperor. They found the act of

kowtow to be inappropriate for receiving foreign dignitaries, and they also found Ch’ing administrators

unwillingness to allow the establishment of permanent diplomatic missions in the capital city to be puzzling.

33 Paul N. Stearns, World History in Brief: Major Patterns of Change and Continuity, 3rd ed., (New York: Addison Wesley, 1999), p. 251-261.34

? Gary L. Scott, Chinese Treaties: The Post-Revolutionary Restoration of International Law and Order (New York, Oceana Publications, 1975), p. 17.

35 The unequal treaties derived its name from the unequal concessions granted to the Western powers by China because they were coerced through the use of military force.

36 Hosea B. Morse, The International Relations of the Chinese Empire, Vol. 1 (London, UK: Longmans, Green and Company, 1910).

37 Cohen and Chiu, People’s China and International Law, p. 7.

11

China’s first contact with a Western power was with Portugal; it signed its first treaty, the Treaty of

Nerchinsk with Russia in 1689. This treaty was based on the sovereign equality of Russia and the China.38

From 1800 onwards, China’s contact with the Western world grew rapidly. The Spaniards, Dutch, English,

French, and later Americans sought to establish outposts in China for the purposes of trade and commerce. The

Manchu Emperor entered into a series of treaties with Western powers beginning with the Treaty of Nanking,

which was signed with Great Britain in 1842 that was followed by the Treaty of Bogue in 1843.39 Both these

treaties were concluded by China with Britain after the end of the Opium War, which demonstrated the

overwhelming superiority of the British naval and military power. Subsequently, China signed the Treaty of

Wanghia in 1844 with United States and the Treaty of Whampoa with France in 1844. These treaties gave

Western nations enormous powers to determine tariff rates, and move products in out of China. In addition,

these treaties also gave Western powers extra-territorial jurisdiction, i.e., the power to try Western citizens

under Western law and not under the prevailing Chinese penal system.40 The inability of Manchu officials to

grapple with the nuances of international law led them to conclude treaties that tipped the balance in the favor

of the Western powers.41

Despite the deep distrust of Western law, the Manchu officials realized that they had to learn how to

apply and use international law in order to survive in a world dominated by Western powers. Two authoritative

texts on Western International law—Wheaton’s International Law and Vattel’s International Law—were

translated into Chinese.42 The translation process was apparently fraught with confusion and misinterpretation

of Chinese characters because Ch’ing administrators could not comprehend concepts such as sovereignty and

territorial jurisdiction since such notions did not exist in traditional Chinese law.43 Therefore, in 1861, the

38 Cohen & Chiu, People’s China and International Law, p. 7.

39 Scott, Chinese Treaties, p. 18-21.

40 Scott, Chinese Treaties, p. 18-21.

41 See L. Tung, China and Some Phases of International Law (New York, NY: Oxford University Press, 1940).12

Manchu emperor established a centralized foreign office to translate Western legal materials and train officials

in international law.44

China attempted to apply international law in its disputes with Japan in 1874, but it was not as adept as

Japan in manipulating international law.45 China and Japan’s dispute emerged over the murder of Japanese

sailors by some natives of Taiwan. The dispute was over China’s inability to protect foreigners in Chinese

territory from aggression. However, Ch’ing dynasty’s Prince Kung failed to understand the nuances of extra-

territoriality and extradition laws. This proved to be costly. Imperial Chinese administrators failed to utilize

international law to its fullest extent because it appeared to emphasize issues that seemed trivial. Ceremonial

matters such as the formal presentation of diplomatic accreditation and audience with the emperor without

kowtow slighted Manchu officials, whereas they seemed relatively less concerned about tariff restrictions,

consular jurisdiction, and most-favored nation privileges.46 This and other experiences reinforced the general

feeling among Manchu officials that international law will never be applied even-handedly vis-à-vis China

because of its weak bargaining position. Significantly, Manchu officials did not fully realize how international

law is deeply intertwined with international power competition that emphasized the value of territorial rights,

sovereignty, and national interests.

Before the collapse of Manchu empire, a commission was established to codify Chinese law and bring it

into conformity with Western law.47 The commission attempted to modify Chinese law by discontinuing the

practice of harsh punishment and the use of torture to extract confessions.48 After the inauguration of the new

42

? Hsiung, Law and Policy in China’s Foreign Relations, p. 140.

43 Hsiung, Law and Policy in China’s Foreign Relations, p. 139.

44 Cohen & Chiu, People’s China and International Law, p. 7.

45 Cohen & Chiu, People’s China and International Law, p. 9.46

? Hsiung, Law and Policy in China’s Foreign Relations, p. 139.

47 Lee, China and International Agreements, p. 134.

48 Lee, China and International Agreements, p. 136.

13

Chinese Republic in 1912, Dr. Sun Yat-Sen sought to place China among the group of legitimate and civilized

nations of the world.49 However, progress in amending Chinese law to bring it in conformity with Western law

was unsuccessful because the influence of the nationalist government did not extend beyond the coastal

provinces. This accentuated the differences between Chinese law, which was based on Confucian thought,

ancient customs, and traditional practices, whereas modern Chinese law derived from Western sources did not

seem amenable to domestic governance. The two World Wars, Japanese aggression, and chronic civil wars

prevented the new Chinese nationalist republic from realizing any of its foreign policy goals by relying on

international law.50

People’s Republic of China, Communism, and International Law

There is very little doubt that Communist China recognized the existence of international law and that it

relied on international law to conduct its external relations. After the establishment of the Communist state in

1949, treaty-based international law was the only form of law that China recognized, especially in its dealings

with Western powers. In fact, after the creation of the Communist state, Chairman Mao was eager for formal

international legal recognition.51 China makes references to international law in its legal texts; it condemns the

actions of other states by relying on international law; it depends on international law to resolve dispute with its

neighbors and other states; and it teaches international law in institutes of higher learning.52 Although China

acknowledges the existence of international law, it does not mean that it attaches the same value and meaning to

international law that other countries might accord it.53 China’s conception of international law significantly

diverges from those of the modern European or Anglo-American conception. There are, however, some

49 Cohen & Chiu, People’s China and International Law, p. 13.

50 Lee, China and International Agreements, p. 137.

51 James C. Hsiung, China’s Recognition and Practice of International Law,” in China’s Practice of International Law: Some Case Studies, eds., Jeorme Alan Cohen (Cambridge, MA: Harvard University Press, 1972), p. 54.

52 Hungdah Chiu, “Communist China’s Attitude Toward International Law,” American Journal of International Law 60 (2) (April 1966), p. 247.

53 Chiu, “Communist China’s Attitude Toward International Law,” p. 247.14

parallels between Chinese and Soviet conception of international law. Both of them viewed international law as

an instrument of state to serve its purposes. Specifically, after 1949, law was seen as tool of the state that must

be adapted to “make it conform to the communist-party-dictated policies.”54

Overall, in China, law is not considered to be a “major social achievement and a symbol of rectitude, but

rather as a regrettable necessity. ” 55 Principally, law was regarded as an instrument of state power to regulate

social behavior of individuals who had not submitted to other means of social control. In the Western legal

system, law is considered to be a set of authoritative rules legislated by the state through the political process

that are understood and relied upon by legal professionals in the conduct of social, political, economic affairs,

and for deploying judgments against individuals who commit crimes, and for settling disputes in the society.

Particularly in Western societies, application of law is divorced from day-to-day political vicissitudes and the

judiciary functions independently without direct interference from political leaders. In other words, there is

clear separation between the framers of law (legislators) and the interpreters of law (the judiciary). The judicial

branch is charged with the application and interpretation of law based on jurisprudence and on the merits of the

individual case presented to the court.

The Western system, mainly the Anglo-American legal system, is devised in such a manner that its

primary task is to determine validity of individual claims (or rights) against other individuals or those between

the state and the individual. Such a conception of law in China, especially during the heyday of Mao’s rule,

was considered to be “rightist heresy”56 or bourgeois law, which was inconsistent with the principles and goals

of the socialist system.57 Even in the post-Mao era, the domestic legal system in China is not structured to

protect individuals from tyranny of the state or uphold individual rights. During Mao’s reign (1949-1976), all

54

? Chiu, “Communist China’s Attitude Toward International Law,” p. 247.

55 Cohen & Chiu, People’s China and International Law, p. 17.

56 Chiu, “Communist China’s Attitude Toward International Law,” p. 247.

57 James Chieh Hsiung, Law and Policy in China’s Foreign Relations: A Study of Attitudes and Practice (New York: Columbia University Press, 1972).

15

laws essentially flowed from the “rule of one-man.” It overrode the written Constitution and other legal

documents. Mao’s position within the communist empire and his word was similar to Chinese imperial law,

wherein rulers were considered to be above the law and their word represented the will of the state. The

Chinese legal system functions primarily as a penal mechanism to punish individuals determined by the state as

violators of law. In China, both domestic and international law is clearly inseparable from the actual political

processes and especially from its class nature. According to Shen Chün-ju, President of the Supreme People’s

Court, law and judicial work “must serve political ends,” and it “must be brought to bear on current political

tasks.”58

The Chinese position on international law seems to concur with the Soviet view that international law is

a special branch of law that expresses “the agreed will of a number of states,” which should seek to promote

foreign policy objectives of the state.59 International law is primarily seen as a law of nations agreed upon to

settle differences among states and provide a protocol for conducting mutual business, if any. This position also

popular in United States, which is often referred to as the dualist position, in which international law and

municipal law is thought to operate in independent domains. International human rights law, which seeks to

regulate relations among individuals within the territorial jurisdiction of a state, and relations between

individuals and the state, has been particularly problematic for China.

International law, however, poses a special challenge to the Communist China. It had (and still has)

trouble accepting the fact that international law applies equally to the socialist as well as capitalist states

because Marxist, Leninist, and Mao Zedong thought presented practical limitations on the application of

international law to socialist countries. Many Chinese legal scholars contended that a single set of international

law could not govern both socialist and capitalist countries.60 Hence, some Chinese thinkers such as Lin Hsin

suggested that international law should be separated into bourgeois law applicable to capitalist countries and

58 Chiu, “Communist China’s Attitude Toward International Law,” p. 247.

59 Chiu, “Communist China’s Attitude Toward International Law,” p. 248.

16

socialist international law applicable only to relations governing socialist countries.61 China’s communist

regime continues to harbor deep skepticism about international law largely because of its historical experience

and the fear that Western international law is being used as tool to alter the ideological apparatus of China.62

The spread and the deepening of international law is seen as a cynical attempt by imperial Western nations to

expand its class interests, acquire new territory, and oppress other nations.63 Communist China believes that

relations between states should be determined on the basis of absolute sovereignty and true equality.64 Each

state should have the right to determine for itself as to what is appropriate for the country and its people.

Hence, China places paramount importance on self-determination, non-interference in the internal affairs of a

state, and national sovereignty.

People’s Republic of China and the Concept of “Individual Rights”

Marxist and Mao Zedong thought mixed with historical Confucianism is the guiding ideology for

framing of domestic law in China. Communist China placed enormous emphasis on the idea of collective

interests and stressed how collective interests should serve the material welfare of all Chinese citizens. The

communist regime believed that individual rights and interests needed to be subordinated to the wishes of the

party-state.65 The excessive importance placed on collective interests and material welfare of citizens reflected

the influence of Confucian thought on the development of Chinese legal system. Notions of law and order

60 Chiu, “Communist China’s Attitude Toward International Law,” p. 252; Hsiung, Law and Policy in China’s Foreign Relations, p. 19.

61 Hsiung, Law and Policy in China’s Foreign Relations, p. 17.

62 Malcolm N. Shaw, International Law, 4th ed., (New York, Cambridge University Press, 1997), p.32.

63 Shaw, International Law, p. 32.64

? Shaw, International Law, p. 33.

65 See R.P. Peerenboom, “What’s Wrong with Chinese Rights? Toward a Theory of Rights with Chinese Characteristics,” Harvard Human Rights Journal 6 (Spring 1993), p. 33.

17

contained in Communism were analogous to Confucianism because both privileged collective welfare over

individual rights, and state over the individual.66 More importantly, the Communist government believed that

collective welfare could only emerge, if individual rights and freedoms are subordinated to the objectives of the

party-state. Every version of the People’s Republic’s Constitution has an article that points out that the exercise

of rights by citizens of China67 “may not infringe upon the interests of the state, of society, and of the

collective.”68 The article further stipulates that the PRC government may at any time suspend the practice of

individual rights, if such rights were perceived to be detrimental to the interests of the state and realization of

collective welfare.69 Exercise of individual rights is permitted only as along as it does not threaten collective

interests as identified by the party-state. Exercise of rights, as Confucius pointed out must be governed by its

essential goodness of purpose determined by the morality of each individual. However, under the Communist

system, boundaries of right and wrong were clearly demarcated by the state. In addition, the state constantly

adjusted the parameters of right and wrong on many occasions without any warning, as Mao did during Cultural

Revolution. The element of choice that the Confucian ethic offered was completely removed in the Chinese

Communist domestic order.

Various Chinese Constitutions give absolute authority to the Communist party because the party-state

alone was thought to have the right to determine and define both collective and individual interests.70 Emphasis

was laid on “class struggle” and rights were accorded only to the proletariat and other class allies; class

opponents such as feudal landlords and bureaucratic capitalists were to be attacked and denied any rights

because their actions were considered to be in opposition to the collective welfare.71 Similar to the Confucian

66 Weatherley, The Discourse of Human Rights in China, p. 102.

67 China’s Constitution was re-written three times—1975, 1978, and 1982—after it was first introduced in 1958. The 1975 Constitution displayed a strong anti-Western streak.

68 Weatherley, The Discourse of Human Rights in China, p. 103.

69 Also see Yu Haocheng, “On Human Rights and Their Guarantee by Law,” in Human Rights and Chinese Values: Legal, Philosophical, and Political Perspective, ed Michael C. Davis (Hong Kong, Oxford University Press, 1995), p. 93-115.

18

system, which emphasized collective interests over personal objectives, Chinese communist system elevated

collective goals over individual interests. In fact, to have too much liberty or rights were thought to be harmful

to the individual and society because it had the potential to produce social disharmony.72 Nonetheless, the idea

of collective interests promoted by the Mao regime was much more rigid and narrow compared to the

Confucian order of fa and li.

The Communist Party dominated every aspect of social and political life and it retained the power to

grant and withdraw rights as it pleased.73 In particular, the party punished individuals who were thought to be

pursuing individual interests over the interests of collective through re-education camps, hard labor, and self-

criticism. During the Anti-rightist Campaign and Cultural Revolution, the Chinese communist party leaders

exercised extraordinary and arbitrary power over its citizens through the coercive mechanisms of the state.

The concept of “individual rights” is in many ways fundamentally antithetical to both Confucian and

Communist Chinese social system. However, the Confucian social order allowed more freedoms, mainly in the

area of personal attire, accumulation of wealth and property, art and music, and in other areas of social life as

long as the supremacy of the emperor is not challenged and taxes are regularly paid. In the communist order

under Mao, every form of individuality was completely subordinated to the state. Every right, every action, and

every thought flowed from the state. Therefore, the Chinese communist state was an extraordinarily oppressive

system measured even by China’s own historical standards. Unlike Western liberal theory, which propounds

that “individual rights” are fundamental and inalienable and that they are grounded in the innate moral worth of

the individual, Chinese leaders refute the idea of natural rights and innate rights of the individual.74 Chinese

discourse on individual rights does not concur with the idea that every individual is automatically entitled to

70 Peerenboom, What’s Wrong with Chinese Rights, p.33; Andrew Nathan, Human rights in Contemporary China, eds., R. Randle Edwards, Louis Henkin, Andrew J. Nathan (New York: Columbia University Press, 1986) p. 144.71

? Weatherley, The Discourse of Human Rights in China, p. 111.

72 Weatherley, The Discourse of Human Rights in China, p. 111.

73 Presently, the Communist Party commands the government and it has ceded significant degree of control over the economic realm to private actors. But, the party continues to police civil society organizations to preclude potential challenges to the authority of the party.

19

rights and that such rights are universal.75 In the Confucian scheme an individual’s worth is determined by his

social role and contribution to the society, whereas in the Maoist doctrine, rights can be only conferred by the

state and governed by the rule of law.76

Communist China and International Human Rights

Communist China viewed international human rights regimes promoted by Western nations, especially,

its excessive focus on civil and political rights, and individual liberty, to be antithetical to Marxist-Lennist and

Maoist ideology. Post-World War II, communist China was built on the edifice of state ownership of the means

of production, equality in distribution of resources and wages, access to social welfare, and the guarantee of

right to work. During the peak of Mao Zedong’s rule, human rights vocabulary disappeared from public

discourse in China. The Chinese Communist Party (CCP) dismissed human rights “as a bourgeois slogan” that

lacked any relevance to socialist objectives.77 Communist Party elders dismissed the idea that human rights are

universal and viewed international human rights movement with trepidation. China’s policy was in many ways

similar to other post-colonial nations, which also gravitated towards socialism, communism, and statism tinged

with a strident anti-colonial rhetoric. The state was (and in many ways is still) seen as an entity that represents

the collective interests of the Chinese people. Hence, Communist party leaders believe that economic, political,

and social development could be promoted and sustained only by the state. Individuals who privileged personal

gains over collective welfare were seen as counter-revolutionaries who sought to subvert the goals of the

communist party. Subversion of national objectives was considered to be a punishable offense. The state had

the right to “discipline” anybody and prevent any ambitions among the people that came remotely close to

74

? On this topic see Gu Chunde and Dong Yunhu, An In-Depth Discussion of Human Rights (Beijing, China: People’s Public Security Publishing House, 1982), p. 66-76.

75 Weatherley, The Discourse of Human Rights in China, p. 118.

76 Gu Chunde, A Brief Discussion of Natural Rights Theory, Red Flag 7 (1982), p. 32-6.77

? Marina Svensson, Debating Human Rights in China: A Conceptual and Political History (New York, Rowman & Lifflefield Publishers, 2002), p. 221.

20

challenging the supreme authority of the party, state, and its leaders. For instance, labor groups that sought

better working conditions, wages, and health care were characterized as selfish people. Similarly, religion and

religious practices were seen as threatening the principles of communist enlightenment and collectivism.

The collectivist ideals drawn from Marxist and Maoist teachings were reflected in China’s international

posture, entirely in the form of anti-Western and anti-colonial pronouncements. China became an advocate for

communist and socialist regimes in the developing world. More importantly, China and other socialist regimes

saw the disproportionate emphasis of the Western powers on the International Covenant on Civil and Political

Liberties (ICCPR) as a political ploy to gradually dismantle the communal ideals of the Chinese state.

Therefore, after re-joining the United Nations in 1971, China adopted a cautious and careful approach in its

engagement with international regimes not only because it was in the midst of Cultural Revolution, which

produced widespread social and political turmoil within the country, but it also feared that international laws

could be applied to alter China’s communist principles. Twelve human rights treaties came into effect before

1971 and two more were negotiated in between 1971-1978. After joining the United Nations, China did not

join many human rights treaties (see Table 1).

Deng’s Economic Reform and International Engagement

Key events that occurred in the middle of 1970s elicited increasing international scrutiny of China’s

human rights policies. The death of Mao Zedong in 1976, the subsequent arrest of the “gang of four,” which

included Mao’s wife Jian Qing, and the return of Deng Xiaoping to power in mid-1977 signified a critical

turning point in modern Chinese history.78 Mao’s death and the capture of “gang of four” increased the flow of

information emerging from China, which chronicled the excesses and gross human rights abuses committed

during Cultural Revolution.79 Furthermore, rehabilitation of political prisoners who suffered during Cultural

Revolution generated renewed enthusiasm in restructuring the Chinese legal system. This culminated in the 78

? See Ross Terill, Madame Mao: The White-Boned Demon (Stanford, CA: Stanford University Press, 2000).

79 Svensson, Debating Human Rights in China, p. 235.

21

adoption of a new Constitution in 1978, which significantly modified the radical tone of the 1975 Constitution;

along with it a new criminal code was promulgated in 1979.80 Deng Xiaoping also began a process of economic

modernization, which encouraged private enterprise, accumulation of private property, and began to divest state

interests in certain industrial sectors.

Beginning in the early to mid-1970s, human rights became a major international issue because of the

global trend towards democratization and economic liberalization. The United Nations made human rights one

of its dominant themes with the creation of Sub-Commission of Human Rights to monitor human rights

practices in different parts of the world. Moreover, United States under the Reagan Administration began a

campaign to promote freedom, democracy, and human rights in an effort to aggressively engage communist

regimes in Eastern Europe and in the developing world. Before that Carter Administration had made human

rights a major component of American foreign policy.

In 1979, United States Department of State began publishing its annual report on human rights practices

worldwide and China featured prominently in many of these reports. China’s human rights practices also

attracted the attention of international non-governmental human rights organization such as Amnesty

International (AI) and Human Rights Watch (HRW).81 Simultaneously, China also demonstrated a renewed

interest in breaking out of its self-imposed isolation. It began by establishing diplomatic ties with United States

and many other countries, while joining different human rights bodies in the United Nations.

Table 1: Human Rights Treaties Signed and Ratified by ChinaHuman Rights Treaties Sign Ratify

1 Civil and Political Rights Treaty 5-Oct-98 No2 Genocide Convention 20-Jul-49 18-Apr-833 Convention relating to the Status of Refugees No 24 Sep-824 Political Rights of Women Convention No No5 Slavery Convention Amended No N06 Convention relating to the status of stateless persons No 24 Sep-82

7Supplement to the Slavery Convention & Practices Similar to Slavery No No

8 Convention on Consent to Marriage, Minimum Age for No No

80 Svensson, Debating Human Rights in China, p. 236.81

? Ming Wan, Human Rights in Chinese Foreign Relations: Defining and Defending National Interests (Philadelphia, PA: University of Pennsylvania Press, 2001), p. 3.

22

Marriages9 Optional Protocol Civil Political Rights Treaty No No10 Economic and Social Rights Treaty 27-Oct-97 27-Mar-0111 Elimination of All forms of Racial Discrimination No 29 Dec-81

12Convention on Torture and Other Cruel and Degrading Punishment 12-Dec-86 4-Oct-88

13 Convention on the non-applicability of statutory limitations No No14 Apartheid Convention No 18 Apr-198315 Treaty on the Elimination of Discrimination Against Women 17-Jul-80 4-Nov-8016 2nd Opt Protocol on the Abolition of Death Penalty No No17 Child Rights Convention 29-Aug-90 2-Mar-9218 Rome Statute International Criminal Court No No19 Rights of the Child on the Sale of Children 6-Sep-00 No20 Rights of the Child in Armed Conflict No No

Source: United Nations Treaty Index, and UN High Commissioner for Human Rights

In the early 1980s, China acceded to the Convention on the Elimination of All Forms of Racial

Discrimination, Convention on the Elimination of All Forms of Discrimination Against Women, Convention

Relating to the Status of Refugees, and the Convention on the Elimination of Apartheid. In addition, China also

ratified the Genocide Convention on 18th April 1983, which it had originally signed in 1949. In 1986, China

signed the Convention on the Elimination of Torture and other Cruel and Degrading Punishment (CAT), and

ratified CAT in 1988, less than a year before the Tiananmen Square massacre. During the decade of eighties,

China signed and ratified eight human rights treaties (see Table 1). This change in behavior towards human

rights treaty regimes seemed to follow the reformist economic policies launched by Deng Xiapoing.

In an effort to placate international criticism, while simultaneously deepening its economic reform for

which it required international assistance, China began by joining human right treaties. Reorganization of

economy, de-regulation of state ownership of all property, and steady inflow of private capital produced a series

of interactions that caused unintended consequences for the Chinese political system and human rights

discourse in China. In other words, economic liberalization had an inevitable impact on the political system

because capitalism, however limited, placed greater emphasis on individual freedoms in economic decision-

making rather than on collective welfare and selflessness, which was the long-standing ideological position of

the Communist party.82

23

Economic liberalization, nevertheless, did not automatically translate into greater openness and increase

in political freedoms for Chinese citizens. According to Article 51 of the 1978 and the amended 1982

Constitution, the party-state still retained the ultimate authority to grant and rescind “rights” as it deemed

appropriate.83 Furthermore, economic changes did not produce any corresponding changes in the legal or

institutional structure of Chinese politics.84

Both Deng and Mao were equally fearful of public displays of dissent, organized protest and marching,

papers critical of party rule appearing in the public, and other public discourse on human rights and democracy

that contradict official policies of the Communist Party. Public expressions of dissent were viewed with the

same apprehension as the Democracy Wall Movement (1978-1980), which began as a result of reforms

introduced by Deng.

The period between 1978-1982 is considered to be one of most intellectually vibrant and free periods in

the history of modern China because the democracy wall movement spawned genuine debate and open

discussions among citizens regarding the future of China. Moreover, the Deng regime was quite tolerant of

criticisms and in many ways encouraged the movement largely because it allowed Deng to use the democracy

movement to oust Mao loyalists and old guard conservatives, who remained opposed to Deng’s reform policies,

consolidate his own power and promote his vision for China’s modernization. Deng referred to his reform

policies as the four modernizations.85 However, when Wei Jingsheng wrote an article titled What Do We Want:

Democracy or a New Dictatorship in which he directly criticized Deng Xiapoing, the Democracy Wall

Movement crossed a critical threshold.86 In other words, the Democracy Wall movement had crossed the Deng

82

? See Tony Saich, “Modernization and Participation in the People’s Republic of China,” in Joseph Y.S. Cheng, ed., China: Modernization in the 1980s (Hong Kong: Chinese University Press, 1989); Ann Kent, Between Freedom and Subsistence: China and Human Rights (Hong Kong: Oxford University Press, 1993).83 Weatherley, The Discourse of Human Rights in China, p. 118.

84 Ann Kent, China and the United Nations, and Human Rights (Philadelphia, PA: University of Pennsylvania Press, 1999), p. 31.

24

line.87 Democracy activism was permitted as long as it suited the goals of Dengists, but when it turned against

Deng himself, the architect of reforms, the democracy movement became a threat to Deng’s policies and his

political survival.88 Therefore, Chairman Deng did not hesitate to crush the movement and re-assert his

authority. Viewed through the Confucian moral prism, Democracy activists had crossed the moral barrier that

divided good from bad, which opened them to sanctions from the state.

Deng Xiaoping who authored China’s post-Mao reform process, believed in four basic principles: (1)

economic development and political stability should be primary goal of the nation; (2) only the Communist

Party has the ability and capacity to lead China to success; (3) authority and legitimacy of the party was

supreme; (4) and Western-style democracy is unsuitable and unlikely to succeed in China.89 The Deng line laid

the foundation for the articulation of main goals of Chinese foreign policy, which placed paramount importance

on economic welfare and subsistence rights over individual political rights and freedoms. In fact, achievement

of economic welfare is considered to be a first step towards the achievement of political or individual rights.

According to the White Paper on Human Rights published by the PRC government, “safeguarding and

promotion of the people's rights to subsistence and development” is one of the primary human rights concern. 90

Hence, according to the official Chinese view on human rights, economic welfare takes precedence over all

other forms of rights. In addition, democracy was conceptualized as socialist democracy that emphasized the

85 Svensson, Debating Human Rights in China, p.236; Goldman, “The Twentieth Anniversary of the Democracy Wall Movement,” Kent, China and the United Nations, p. 33-36.

86 James D. Seymour, The Fifth Modernization: China's Human Rights Movement, 1978-1979, eds., (Standfordville, NY: Human Rights Publishing Group, 1980).

87 Wei Jingsheng is China’s leading dissident and human rights activist. He was condemned to long prison terms and labor reeducation camps. He was finally exiled to United States in 1996.

88 Goldman, “The Twentieth Anniversary of the Democracy Wall Movement.”

25

collective aspirations of the people and the nation. Individual rights, political freedom, and democracy were

seen as bourgeois rights that were inconsistent with the aspirations of the Chinese people.91

The Democracy Wall movement, unlike the other democracy movements such as the short-lived and

spontaneous effort to commemorate and mourn the death of Zhou Enlai in 1975 and the June 4th Tiananmen

Square movement, was one of the few efforts that continued for a relative long period of time largely because it

suited the goals of the party leaders. However, other freedom and openness movements that emerged after

1983, including the massive Tiananmen Square gathering in 1989, was very efficiently and brutally squashed

because all these movements and the external pressure was largely seen as a direct challenge to the supremacy

of the party and its reform policies. The party did not tolerate any form of systematic and organized opposition

or criticism of its policies.

Domestic-International Pressure Linkages

Interestingly enough, the clamp down on the fledgling democracy movement in the early 1980s, and the

annual anti-crime campaigns launched in the mid-80s, which imposed harsh penalties, including death sentence

for crimes such as corruption and bribery, were not heavily criticized, particularly either by United States or by

United Nations. After Deng’s assumption of power in 1978, China’s record on human rights was subordinated

to Cold War concerns.92 China’s support in the United Nations was crucial to counter-balance the Soviet Union

and its satellite states. Besides, China was engaging in active human rights diplomacy. China ratified eight

human rights treaties in the 1980s, and it also participated in the United Nations multilateral human rights

89 Wan, Human Rights in Chinese Foreign Relations, p. 23.

90 People’s Republic of China, Progress in China's Human Rights Cause in 2000, (Available online at: http://www.china.org.cn/e-white/).

91 Zhu Feng, “Human Rights and the Political Development of Contemporary China, 1979-1994,” in Human Rights and Chinese Values: Legal, Philosophical, and Political Perspective, ed., Michael C. Davis (Hong Kong, Oxford University Press, 1995), p. 135.

92 For more on this topic see Susan Shirk, “Human Rights: What about China?” Foreign Policy (Winter 1977-78) 29: 109-127; Roberta Cohen, “People’s Republic of China: The Human Rights Exception,” Human Rights Quarterly 9 (November 1987), p. 447-549.

26

monitoring efforts by joining the Human Rights Commission. In 1984, China became a member and nominated

a representative to serve in the panel of experts of the Sub-Commission of Human Rights on the Prevention of

Racial Discrimination and Protection of Minorities.93 Moreover, China supported the UN resolution for sending

a special human rights monitoring group to Afghanistan. Despite protests from the former Soviet Union, it also

endorsed the move to investigate human rights violations in Chile.94 China also shifted its strategy from

absenting to abstaining when human rights issues came up for a vote in the UN General Assembly.95

Since China’s entry into the United Nations Human Rights Commission in the early 1980s, Chinese

diplomats have diligently attended almost every session of the Human Rights Commission and the Sub-

Commission.96 During the meetings, China’s human rights concerns largely centered on issues such as the right

to self-determination, freedom of colonial nations, elimination of apartheid, racial discrimination, and

discrimination against women.97 The primary task of Chinese diplomats attending these sessions was to

represent the official Chinese position on human rights.98 China’s position, nonetheless, was often at odds with

the broader human rights discourse, which focused more on the topic of guaranteeing personal integrity of the

human being and on individual rights. Although China recognized the international legitimacy of UN human

rights organizations, it expressed deep reservations over what it characterized as the politicization of human

rights issues by Western powers and expressed concerns about the erosion of state sovereignty. 99 In particular,

Chinese officials expressed concerns that human rights regimes are increasingly interfering in internal matters

93 Cohen, “The Human Rights Exception,” p. 537.

94 Kent, China and the United Nations, p. 43.

95 Kent, China and the United Nations, p. 43.

96 Ann Kent, “China and the International Human Rights Regimes: A Case Study of Multilateral Monitoring, 1989-1994,” Human Rights Quarterly 17 (1) (1995), p. 8.

97 Kent, “China and the International Human Rights Regimes,” p. 7.

98 It needs to be noted here that the UN Commission on Human Rights is composed of national governments and it is distinctively political body, whereas, the Sub-Commission is composed of body of independent experts who are elected on a regional basis to represent the different regions of the world.

99 Kent, “China and the International Human Rights Regimes,” p. 9.

27

of sovereign states. In addition, China expressed strong objections over the inability and unwillingness of the

United Nations to tightly monitor and control the activities of NGO’s. China was mainly upset that human

rights NGOs operating through a network of informants inside China were able to gather information about

human rights practices and that the UN accepted the veracity of reports, treated them as legitimate, and relied on

such reports to chastise China’s human rights policies.

Both at the domestic and international level, China’s human rights policy reflected Deng’s philosophy of

maintaining the supremacy of the party and forcing dissidents to follow the party line. Punishing dissidents

without any concern for their human rights, China held, is within its prerogative and that no country has the

right to condemn China’s policies. At the domestic level, a citizen-led democracy reform movement was

allowed to flower for a few years as this policy suited the purposes of the ruling elite. In fact, the domestic

human rights and democracy movement was manipulated to discredit Mao loyalists and isolate them from

centers of power. At the international level, where attention was primarily focused on the former Soviet Union

during the Cold War, criticism of Chinese human rights practices was a secondary concern. At this point, China

began to actively participate in select human rights regimes that seemed to be consistent with the policy

preferences of the Deng regime. The Deng regime did not display any genuine concern or desire to modify its

domestic human rights practices in response to domestic protest; all domestic opposition was effectively

crushed. International participation has not necessarily had a positive impact on China’s compliance record

with the human rights treaties that it had ratified.

China’s Domestic Human Rights Practices

In 1983, China launched an anti-crime program called strike-hard campaign, which relied on “mass

arrests, swift and harsh sentencing, mass rallies, extensive propaganda work, and widespread use of death

penalty.”100 It is estimated that during this strike-hard campaign reliance on death penalty alone caused the

deaths of “tens of thousands of people.”101 China’s ruling regime resorts to the use of death penalty as a

coercive device as a deterrent to demonstrate that the government is effective in controlling growing crime and

28

corruption, which ironically developed as a result of economic reforms launched by Deng (see Figure 1). The

party allows widespread coverage of death penalty sentences in the local media to not only demonstrate that the

state is punishing wrongdoers, but it is also asserting control over the society. In addition, the Chinese state also

uses death penalty as a propaganda tool to intimidate citizens and carry out education campaigns that clearly

point out that the people dare not challenge the authority of the state.102 Death sentences are carried out very

swiftly; often executions are conducted in a stadium or in other public places.103 Recently, in order to increase

efficiency and reduce the cost of execution, law enforcement authorities have started using mobile execution

vans.104 In a windowless van, the prisoner is strapped down and injected with a lethal drug. Families receive

notice only few days before the execution, which gives them very little time to arrange for defense or plead with

the authorities.105

The Chinese judicial system completely lacks transparency and independence, which has troubled many

human rights advocates, especially when death penalty is being liberally used. It is not entirely clear as to what

crimes warrants the imposition of death penalty and whether persons charged with crimes received the right to

representation and appeal. As pointed out earlier, according to Chinese criminal law, an individual is presumed

to be guilty if the person is arrested, whereas in the Western criminal system a person is assumed to be innocent

100 Marina Svensson, “State Coercion, Deterrence, and the Death Penalty in the PRC,” Paper Presented at the Annual Meeting of the Association for Asian Studies, Chicago, Illinois, 22-25 March, 2001, p. 3.

101 Svensson, “State Coercion, Deterrence, and the Death Penalty in the PRC,” p.10. The issue of estimating death penalty remains difficult because of the tight control over the judiciary system exercised by the party. The estimate of tens of thousands of people is based on Amnesty International reports and other private sources. For a discussion of death penalty statistics see Harold M. Tanner, Strike Hard: Anti-Crime Campaigns and Chinese Criminal Justice, 1979-1985 (Ithaca, NY: Cornell University Press, 1999); Murray Scot Tanner, “State Coercion and the Balance of Awe: The 1983-1986 ‘Stern Blows’ Anti-Crime Campaign,” The China Journal, 44 (July 2000), p. 93-125.

102 Svensson, “State Coercion, Deterrence, and the Death Penalty in the PRC,” p. 5.

103 Jasper Becker, “One Chinese Lawyer’s Crusade,” Christian Science Monitor, 3 July 2002, p. 6.

104 Amnesty International, “Chinese use Mobile Death Vans to Execute Prisoners,” Amnesty Wire, May 2003 (Available online at: http://web.amnesty.org/).

105 Julie Chao, “Death Penalty Debate Builds in China,” Atlanta-Journal Constitution, 13 July 2003, p. 7A.29

until proven guilty in a court of law. The presumption of guilt in the Chinese system automatically condemns

the prisoner; all the judge has to do is impose the sentence reinforcing the state’s judgment.

China invariably reacts very harshly with counter-criticism if its human rights policies are attacked in

international forums.106 The Chinese government does not appreciate international censure of China’s criminal

law system for its lack of due process, transparency in the judicial process, respect for an individual’s legal

rights. China’s communist regime regards imposition of punishments and its domestic legal system to be

beyond the purview of other states or international organization. It regards the imposition of punishments to be

a domestic matter and that it has no bearing on the issue of human rights. This position is quite consistent with

the official ideology of the Chinese state because human rights in China do not mean individual rights and,

hence, does not translate into prisoner’s rights. Human rights in the Chinese context mean collective interests

aimed at improving the economic welfare of all the people. Since the strike-hard campaign targeted drug

peddlers, looters, corrupt bureaucrats and businesspeople, and counter-revolutionaries, the state, after all, was

protecting the rights and interests of the collective to ensure subsistence rights. Officials in the Bureau of

Public Security contend that that China has a serious crime problem, particularly in major cities, such as Beijing

and Shanghai. Hence, Public Security officials contend that it is necessary to rely on death penalty.107 Although

this logic seems to be consistent with Chinese view on law and rights, it is distinctly different from the notion of

universal human rights and individual rights.

106

? Xinhua News Agency, “FM spokesman: US Congress committee should stop interfering in China's internal affairs,” October 4th, 2003 (Available online at: http://news.xinhuanet.com/english/2003-10/04/content_1110713.htm).

107 Mary Kwang, “Death Penalty Still Favored by Chinese,” The Straits Times, 22 February 2003.

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Figure 1: Number of Death Sentences Imposed and Executions Carried Out between 1990-2000

Source: Collected from various Amnesty International Reports, China (1990-2003)

This stark difference in the interpretation of international human rights norms has produced the

universalist versus relativist debate.108 The Chinese position on human rights falls under the relativist category.

According to which, each country’s human rights norms are determined by its historical and cultural

experiences, and by the constraints placed on its institutional structure. In other words, the Chinese government

explicitly denies the existence of universal human rights. Chinese authorities dismiss the idea of universal

human rights “as an imperialist manifestation of a hypocritical West.”109 Therefore, the party-state believes that

its domestic activities are beyond the influence of external authorities, and that China is within its sovereign

right to define what is wrong and right according to its own rules, determine who the wrong-doers are, and then

impose punishments that it considers to be appropriate.

108 See Eliza Lee, “Human Rights and Non-Western Values,” in Human Rights and Chinese Values: Legal, Philosophical, and Political Perspective, ed., Michael C. Davis (Hong Kong, Oxford University Press, 1995), p. 72-90; and William T. DeBary, Asian Values and Human Rights: A Confucian Communitarian Perspective (Cambridge, MA: Harvard University Press, 1998).

109 Edward Friedman, “Northeast Asia: China,” in A Force Profonde: The Power, Politics, and Promise of Human Rights, eds., Edward A. Kolodziej (Philadelphia, PA: University of Pennsylvania Press, 2003), p. 129.

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What China refuses to acknowledge is the demand of outside actors that China introduce transparency

and due process into its judicial system, and allow the judiciary to function independently from the other

branches of the government, especially free of interference from the Communist Party leaders and their

arbitrary dictates. In the post-Mao era, efforts to create a functioning and independent legal system has not

succeeded because of the concern among CCP officials that law might be used by “autonomous entities” to

protect the interests of vested groups that are opposed to the Communist Party.110 The courts and the legal

system in China are generally seen as a tool to reaffirm the authority of the state; they are not regarded as an

instrument to protect the individual rights of the Chinese citizens.111 The party-state refuses to make these

changes because it fears that it will effectively cede control over critical sectors of the state that might

potentially lead to chaos (luan) and removal of the Communist party from power. The fear of (luan) chaos or

turmoil is very prominent among the Chinese Communist Party leadership. During the discussions among the

party leaders—Li Peng, Deng Xiaoping, Yang Shangkun, Li Xiannian, Peng Zhen, and Bo Yibo—to determine

a course of action to deal with the June 4th Beijing Democracy Movement in 1989, Deng repeatedly invoked the

word “chaos and turmoil,” and forcibly argued that China should achieve stability at any cost.

Of all China’s problems, the one that trumps everything is the need for stability. We have to jump on anything that might bring instability; we can’t give ground on this point, can’t bend at all…all this boils to one thing: China can’t take chaos. We can’t allow chaos, and we have to keep saying so, bluntly and openly. We’d be wrong not to.112

As the quote from Deng Xiapoing, shows the issue of turmoil or chaos is of such importance to party

elders that they were willing to do anything to quell any challenge to the party and its leadership. Premier Li

Peng justified the imposition of martial law as the Tiananmen protests grew in size and strength because of the

growing concern over the spread of chaos to other parts of China.113 Furthermore, Deng believed that

110 Joseph Fewsmith, “Elite Poitics,” in The Paradox of China’s Post-Mao Reforms, ed., by Merle Goldman and Robert Macfarquhar (Cambridge, MA: Harvard University Press, 1999), p. 70.

111 For a thorough discussion on the process of law-making and role of law in domestic governance see Murray Scot Tanner, The Politics of Law-Making in Post-Mao China: Institutions, Processes and Democratic Prospects (Oxford, UK: Oxford University Press, 1999).

112 Zhang Liang, The Tiananmen Papers, eds., Andrew J. Nathan and Perry Link (New York: Basic Books, 2001), p. 423.

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resolutions condemning China or international sanctions are “no big deal for us.”114 Party elders asserted that

China should either ignore the sanctions or fight back, but never allow other countries to interfere in the internal

business of China.

Economic Reform, Tiananmen Incident and its Impact on Law and Order

The June 4th Student Democracy Movement was the product of the reform of the limited political and

partial economic reform launched by Deng. This reform movement provided some political space for open

intellectual debate on the issue of democracy and freedom within China in the 1980s, as long as the debate did

not explicitly criticize the party or its leaders. Simultaneously, the economic reform, which was implemented in

uneven fashion led to widespread corruption, accentuated the differences between rich and poor, and increased

resentment and discontentment among large groups of people. These popular frustrations manifested in the

form of small student protests beginning in April 1989, which increased in size with every passing day, before it

was decisively crushed by the first of week of June 1989. When the reform process threatened to overturn the

legitimacy and power of the Communist party, Deng did not hesitate to crush the democracy movement. The

June 4th Democracy Movement was never intended to overthrow the Communist Party. It aimed to accelerate

and extend the benefits of reform to all sections of the population, and it sought greater citizen input in the

public policy-making process.115 However, contradictions in Deng’s principles, and the inability or

unwillingness to fully reform both the economic and political sphere generated social forces that culminated in

the form of June 4th Democracy Movement.

In the post-Mao reform period, Vice-Premier Deng promoted his “Four Cardinal Principles.” These

principles called for the continuation of the socialist road, re-emphasized the importance of maintaining the

dictatorship of proletariat over the bourgeois, sustaining the commitment to Marxism-Leninism-Mao-Zedong 113 Craig Calhoun, Neither Gods nor Emperors: Students and the Struggle for Democracy in China (Berkeley, CA: University of California Press, 1994), p. 1.

114 Liang, The Tiananmen Papers, p. 423.

115 Calhoun, Neither Gods nor Emperors, p. 1-24.

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thought, and upholding faith in the paramount leadership of Communist Party. These four principles were

considered to be cornerstone of China’s post-Mao reform policy. However, the “Four Cardinal Principles,”

were contradictory. Deng or his followers never really fully explicated or sought to resolve these

contradictions. Deng’s slogan “to get rich is glorious” seemed inconsistent with some of the cardinal principles

that he had outlined earlier.116 Economic ideas such as reducing the share of public sector in industrial

activities, dismantling collective agricultural communes, and support for private accumulation of property ran

counter to the principle of maintaining the socialist path, continuing the dictatorship of proletariat over the

bourgeois, and sustaining the commitment to Marxism-Leninism-Mao-Zedong thought.

Once the reform process was underway, the value and importance of Marxism-Leninism-Mao-Zedong

ideology thought markedly declined, except among avowed party loyalists. Petty bourgeois, entrepreneurs, and

landlords, who were completely wiped out during Mao era, rapidly reappeared during Deng and Jiang Zemin’s

reign.117 The slogan of proletariat’s dictatorship over bourgeois quickly disappeared from the official policy

discourse because every proletarian wanted to become a bourgeois.118 Lastly, the idea of free-market economy

in which forces of supply and demand determined commodity prices was simply inconsistent with the principle

of follow the socialist road promulgated by Deng. Development with “socialist or Chinese characteristics” did

not translate well into practice, except that it hampered the pace of economic reforms, which culminated in the

form of June 4th Democracy Movement. In its desire to maintain its control and dominance over all areas of

social, economic, and political life the Communist party elites hampered the reform process. More importantly,

an intense political battle was being waged among the higher echelons of Communist Party. Elite politics

116 Merle Goldman and Roderick MacFarquhar, “Dynamic Economy, Declining Party-State,” in The Paradox of China’s Post-Mao Reforms, ed., Merle Goldman and Robert Macfarquhar (Cambridge, MA: Harvard University Press, 1999), p. 8.

117 For a concise discussion of China’s economic reforms see Barry Naughton, “China’s Transition in Economic Perspective,” in The Paradox of China’s Post-Mao Reforms, eds., Merle Goldman and Robert Macfarquhar (Cambridge, MA: Harvard University Press, 1999), p. 30-44.

118 More recently, the Communist party formally agreed to open its doors to businessmen and entrepreneurs, who were barred from becoming CCP members because of their bourgeois status. This development has been formally enshrined in the outgoing President Jiang Zemin’s philosophy of “Three Represents” introduced in the 16th National People’s Congress in 2002.

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during Deng’s rule centered on controlling the pace of economic reform and the degree to which the party needs

to manage the reform process. Two factions sought control of the reform movement during the Deng regime—

the Deng loyalists and Chen Yun Group. The Deng faction favored broad-based and expansive economic

reforms, while the Chen Yun group called for a more conservative pace of reform and tighter management and

control of the reform process by the party, and continued commitment to socialist thought.119 Socialist ideals

did not translate into any meaningful policy solutions, but it did influence the pace and scope of the reforms.

After the 1989 Tiananmen Square massacre, Deng’s power was significantly weakened. Some members

of Communist Party Politburo and the Standing Committee, the two leading political organs of People’s

Republic of China, believed that reforms needed to be restricted and that the party should maintain greater

control over the reform process. The Chinese leadership strongly believed in the luan thesis, especially after

witnessing the rapid disintegration of the Soviet Union in the wake of radical reforms launched by Mikhail

Gorbachev. The breakup of the Soviet Union convinced Communist Party elders that if the party did not tightly

monitor and regulate the reform process, China would also disintegrate as the Soviet Union did. Hence, senior

Communist Party leaders placed enormous importance on maintaining political stability for which they relied

on the repressive state apparatus to coerce citizens into submission. Deng Xiapoing favored strong punishments

for the June 4th demonstrators. In particular, Deng believed that punishments should specifically target

leadership elements within the Democracy Movement. In addition, Deng argued that post-Tiananmen laws

should be structured in a very careful manner, especially laws governing “assembly, association, marches,

demonstrations, journalism, and publishing.”120 Deng believed that such strong measures were necessary to

make both external and internal actors understand that the Chinese government was “tightening controls for the

sake of stability,” and for the “sake of reform and opening and modern construction.”121

119 For a nice discussion of elite politics in post-Mao China see Joseph Fewsmith, Elite Politics in Contemporary China (New York: M.E. Sharpe, Inc, 2001).

120 Cited in Liang, The Tiananmen Papers, p. 424.

121 Liang, The Tiananmen Papers, p. 424.

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Chairman Deng personally selected, the former Mayor of Shanghai, Jiang Zemin, to the Chairmanship

of the Communist Party to continue the reform process, while ensuring stability and political order. Jiang

Zemin replaced Zhao Zhiyang as the Party Secretary-General in 1989 during the aftermath of Tiananmen

Square incident. Zhao Zhiyang was removed from power and arrested for trying to introduce political reforms

and for sympathizing with student leaders of the democracy movement.122 Jiang Zemin was selected because of

his ability for leadership, mastery over elite politics within the party, and for his penchant to use coercive

mechanism of the state to maintain stability and order. Stability and order in the Chinese context meant that

CCP was not going to permit any political activity that directly challenges the party or its leadership through

demonstrations or public discourse. The ability to maintain stability and order was one of the paramount

concerns of the Chinese leadership in the wake of the Tiananmen Square riots. Hence, under Jiang Zemin’s

rule, China continued to pursue economic reform and liberalization, while the party began to tighten its control

over critical sectors of the state, such as media and political institutions.

Much like the Mao regime, the party-state did not tolerate any form of organized political challenge or

criticisms of its policy. However, reforms introduced by Deng led to unparalleled economic freedoms for many

in China. The party succeeded in evolving from a totalitarian communist state, in which it dominated all

aspects of life, into an authoritarian state, in which it only dominates the political sphere. The Chinese state

crushed all opposition to its supremacy and managed to co-opt vital sectors of the society, such as intellectuals,

and improved it strategic alliance with the entrepreneurial class.123 Since Deng assumed power, the Communist

Party gradually changed from a revolutionary party to a ruling party. Importantly, during this transformation,

the CCP shed its socialist ideology and allegiance to Marxist-Lennist-Mao Zedong thought. While the Deng

regime made references to socialist ideology and incorporated socialist principles in its formal political

122 Nina Halpern, “Economic Reform, Social Mobilization, and Democratization in the Post-Mao China,” in Reform and Reaction in Post-Mao China: The Road to Tiananmen, ed., Richard Baum (New York: Routledge, 1991), p. 48.

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discourse, in practice, socialist ideology had very little influence on policy matters, especially on economic

policy. During Jiang Zemin’s rule, socialist ideals started to disappear from formal political discourse.124

Law, Order, and Human Rights in Post-Tiananmen China

In the Post-Tiananmen period, the Chinese government became increasingly repressive and did not

hesitate to silence any potential or perceived threat to the party-state. To maintain stability, prevent chaos, and

continue with economic reforms the PRC government introduced a series of different law enforcement tools,

and it defined a wide-range of political and social activities as a threat to the nation. The party-state relied on a

variety of repressive tools such as detention without charge or trial, supervised residence, shelter and

investigation, post-arrest detention, denial of access to lawyers, torture and physical duress to extract

confessions, presumption of guilt on arrest, witness intimidation, reeducation through labor, and imposition of

death penalty to defeat any form of political opposition.125

The party-state employed these coercive instruments against a broad range of activities such as public

protest, printing pamphlets, organizing labor groups, participating in public demonstrations and rallies,

membership in unregistered religious groups, leading, aiding, supporting, participating in separatist movements

(largely applied to the autonomous regions of Tibet and Xinjiang), disturbing peace and stability, distributing

seditious materials, publishing subversive materials, maintaining contact with hostile foreign elements, spying,

and revealing state secrets. People thought to engage in any of these activities were branded as “counter-

revolutionaries” or as “enemies of the state.” In addition to these crimes, the Chinese government imposed

123 See John Promfret, “Under Jiang, Party Changed to Remain in Power: Communist Apparatus Still Rules China, Though Country has been Transformed,” Washington Post, 7 November 2002, p. A.14.

124 For a discussion of the transformation of the Chinese state see David Shambaugh, “The Chinese State in the Post-Mao Era,” in The Modern Chinese State, ed., David Shambaugh (Cambridge, UK: Cambridge University Press, 2000), p. 161-187.

125 These different law enforcement tools are identified in various Amnesty International (AI) Reports that are published annually. Besides, the AI also publishes various other reports that detail specific instances of human rights violations such as torture, detention, and execution. These reports are available online at: http://www.amnesty.org.

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harsh penalties for other crimes, such as corruption, robbery, rape, drug-trafficking, prostitution, and other petty

crimes. Normally, the harshest sentence is reserved for political dissidents.

Arrest and Detention of Political Dissidents

Political opposition or dissidence generates a very rapid response from the PRC government. Every

year many individuals are either arrested or indefinitely detained for counter-revolutionary activities, which are

basically political crimes.126 These crimes could range from anywhere from writing subversive poetry to

unfurling a banner with a political message in the Tiananmen Square. In 1997, the Criminal Law Procedure

was rewritten in which the term “counter-revolutionary” was replaced with term “crimes endangering state

security.”127 For example, many Chinese-American scholars are routinely arrested, detained or harassed when

they visit China to collect scholarly materials.128 According to the 1979 Criminal Procedure Law (CPL), the

crime of counter-revolution is defined as an act that seeks to topple “the political power of the dictatorship of

the proletariat and the socialist system.”129 The crime of “counter-revolution” and the crime of “endangering

state security” is vaguely defined so that it provides wide latitude for interpretation such that any words, actions,

or associations both formal and informal, can be construed as being “disruptive of public order or critical of

official policies.”130

126 See United States Department of State, China—Country Reports on Human Rights Practices, 1999 (Washington DC, Bureau of Democracy, Human Rights, and Labor, 23 February 2000), p. 12 (Available online at: http://www.state.gov).

127 Although the crime of counter-revolution was re-christened as “crimes endangering state security,” individuals arrested for the crime “counter-revolution” as per the 1979 Criminal Law Procedure are still under imprisonment. Many of the individuals were arrested in a nation-wide following the Tiananmen Square incident (see U.S. Department of State, China—Human Rights Practices, p. 12).

128 Mike Chinoy, “Another scholar detained by China,” CNN Asia, March 29, 2001, Human Rights Watch, “China: Second Foreign Scholar Detained,” (Available online at: http://www.hrw.org/press/2001/03/china0331.htm).

129 See Amnesty International Special Report, China--No One is Safe: Political Repression and Abuse of Power in the 1990s (London, UK: Amnesty International Press, 1999), p. 6.

130 Amnesty International, No One is Safe, p. 6.

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In 1994, more than 2,800 people were detained for counter revolutionary offences,131 and in 1995,

according to a Ministry of Justice official, 2,768 people were imprisoned for counter revolutionary activities.132

Many of imprisoned individuals can be held indefinitely without trial, tortured and forced to make signed

confessions, and sent to reeducation labor camps.133 China also employs the tool of arbitrary arrest and

detention against Tibetan and Uighur nationalists in the Xinjian province. The activities of Tibetan and Uighur

nationalists come under the jurisdiction of the state security law, which dictates that it is a crime for the

nationals of China to “have contacts with or receive financial support from any organization, within or outside

the country.”134 Importantly, nationals of China are not expected to maintain any form of contacts with

elements that are thought to be “hostile to the PRC government and socialist system.”135

The PRC government does not identify the hostile elements or educate its citizens as to what specific

acts are considered to be harmful to the socialist system. Again the broad intent of this law is to protect the

interests of the party-state and not necessarily protect the national security of China. However, it is nearly

impossible to distinguish between the interests of the party and the people because interests of the party and its

leaders are considered to be synonymous with the interests of the people. Although both and Tibet and Xinjian

are considered to be autonomous regions, the Chinese government has not hesitated to repeatedly put down any

resistance, peaceful or otherwise, without hesitation. In 1996, a major crackdown was launched in Tibet and

Xinjian. In Tibet, during clashes between Chinese police and monks at the Ganden monastery, reportedly

ninety monks “disappeared” or were “detained.”136 Similarly, in the same year, apparently Chinese raids in the

Xinjian province netted 2,773 suspected separatists, terrorists, and ordinary criminals.137 In almost all instances,

131 See Amnesty International, Annual Country Reports-China (London, UK: Amnesty International Press, 1995), p. 99.

132 See Amnesty International, Annual Country Reports-China (London, UK: Amnesty International Press, 1996), p. 119.

133 Rose Tang, “Detained Chinese scholar confesses to crimes: Beijing,” CNN Asia, 23 March, 2001

134 Amnesty International, No One is Safe, p. 7.

135 Amnesty International, No One is Safe, p. 7.

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the arrested individual’s family is rarely notified, and it was not clear whether the detained individuals were

alive or dead.

PRC law enforcement agencies also relies on the tool of “shelter and investigation,” which is a form of

administrative detention that allows the police to hold individuals in custody for three months for being under

the suspicion of being involved in a crime.138 Although Article 14 of the 1979 CPL forbids the detention of

individuals for more than ten days without charge, the police frequently rely on administrative detention

because this procedure can be employed without any judicial review.139 According to a Ministry of Public

Security official, there were 930,000 and 902,000 cases of administrative detention in 1989 and 1990.140 At any

given time more 100,000 people are held without charge in some form of administrative detention.

In the Chinese legal system, an adjudication committee that operates independently of the trial court

determines the verdict in criminal cases. This makes the adjudication committee highly vulnerable to political

pressure.141 The adjudication committees do not rely on the trial proceedings or on the verdict of jury of peers,

but makes decisions entirely on the basis of case files without hearing from the defendant or from defense

lawyers.142 As a consequence, final indictments reflect the original case as presented by prosecutors with very

little input from defense lawyers or from the defendant. Moreover, defense lawyers are not provided access to

case files; they are not allowed to confront prosecution witness during court proceedings, and they are barred

from challenging the verdict of the adjudication committee.143

136 See Amnesty International, Annual Country Reports-China (London, UK: Amnesty International Press, 1997), p. 119.

137 Amnesty International, Annual Country Reports-China, p. 119.

138 Amnesty International, No One is Safe, p. 8.

139 Amnesty International, No One is Safe, p.10.

140 Amnesty International, No One is Safe, p. 12.

141 Amnesty International, No One is Safe, p. 12.

142 Amnesty International, No One is Safe, p. 12.

143 Amnesty International, No One is Safe, p. 13.

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According to Amnesty International, Human Rights Watch, and the United States Department of State

Annual Human Rights Reports, in many instances, defense lawyers are threatened and dissuaded from

defending their clients. In some cases, defense lawyers are discouraged from defending the accused and

pursuing the case earnestly. Similarly, defense witnesses are persuaded from testifying against the prosecution.

In addition, domestic law allows defendants to consult an attorney only seven days before the start of a trial,

which effectively prevents defendants from presenting a successful defense because they lack sufficient time to

adequately prepare their case.144 Also the fee for retaining a lawyer could be very prohibitive. On an average

hiring legal services could cost anywhere between 300 to 650 dollars, whereas the average income of workers in

China is around 125 dollars.145 All these actions are in violation of China’s 1982 Constitution, which states that

courts shall operate without interference from any political or administrative organization.146 Immediately

following the Tiananmen Square incident in 1989, China’s Supreme People’s Court issued a memorandum that

was circulated to all local courts. This memorandum instructed the local courts to strictly follow the line

established by Deng Xiapoing and promptly hand out “severe punishments” to those who are responsible for

causing “social turmoil.”147 The CCP leadership believes that courts should not be allowed to operate as they

deem fit or according to law; it is expected that the Communist Party will guide the courts in making the right

decisions. Judicial and the penal system are seen as extensions of the party, and as instruments to achieve the

political objectives of the party. Courts are not viewed as independent institutions that operate to settle

differences among disputants or inquire into violations of law. The judicial system is used as coercive tool to

elicit confessions from the accused and perform the tasks outlined by the Party.

144 U.S. Department of State, China—Country Reports, p. 6.

145 Veron Mei-ying Hung, Protection of human Rights in the Context of Punishment of Minor Crimes in China, Testimony before the Congressional-Executive Commission on China, Washington DC, 26 July 2002, (Available through Carnegie Endowment for International Peace at: http://www.ceip.org/).

146 Amnesty International, No One is Safe, p. 13.

147 Amnesty International, No One is Safe, p. 13.

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Torture and Ill-Treatment of Prisoners

China is party to the International Convention on the Prevention of Torture and other Cruel, Inhuman,

and Degrading Punishments, which it ratified in 1988 (see Table 1). However, in the wake of the Tiananmen

Square Democracy Movement, incidence of torture increased rapidly. According to reports of numerous

NGOs, use of torture to extract confessions or coerce statements from detainees is so widespread in China that

authorities are not able to clearly distinguish as to what is considered as torture and what is not. Under Article 1

of the Convention on Torture (CAT), “any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person” for such purposes as obtaining information, seeking confession, and

intimidating or coercing a third person “with the consent or acquiescence of a public official” is prohibited.

State parties to the Convention on Torture are expected to prevent the occurrence of such events and implement

appropriate legal measures to punish perpetuators of torture. In May 2000 the Committee on Torture, which is

charged with examining the implementation of the Torture Convention, recommended, among other

suggestions, that China re-define its torture law so that it fully complies with the definition of the torture

convention.148

Article 136 of the 1979 Chinese CPL, prohibits torture to “coerce a statement or extract confession” and

Article 189 prohibits the use of “corporal punishment and abuse” of prisoners in limited circumstances.149

Provisions of Article 136 apply to “state personnel” who inflict torture to coerce statements. The punishments

for “state personnel” range from minimum of fifteen days to six months of “criminal detention” to three years of

imprisonment and heavier punishment is reserved for severe cases of torture that causes disability.150 Very rare

are the instances in which heavy punishments are imposed on prison officials for using torture; usually lighter

punishment of “criminal detention” is used. This has allowed prison officials to use torture with impunity.

Similarly, the scope of Article 189 is so narrowly defined that it is applicable only to “judicial personnel,”

148 Amnesty International, Judges and Torture (London, UK: Amnesty International Press, January 2003), p. 4.

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thereby exempting prison guards and policemen.151 Moreover, the law is only applicable under circumstances

of extreme cases of torture or ill-treatment. Hence, it is inapplicable in cases where handcuffs and leg-irons are

routinely attached to prisoners because prison regulations allow such usage.

The problem lies in the fact that Chinese CPL has a loophole, which allows prison guards to use

handcuffs and leg-irons in such a way that it inflicts severe pain on prisoners. Common forms of torture include

regular beatings with fists or with a variety of instruments, use of electric batons or cattle-prods that cause

severe electric shock, use of handcuffs and leg shackles to suspend prisoners in painful positions, incarceration

in tiny and filthy cells, forcing prisoners to work under extremely inhospitable conditions, food and sleep

depravation, and denial of medical care.152 According to published newspaper reports in China, forty-one

prisoners died as a result of torture in Henan province from 1990 to 1992.153

Another practice that allows the prison guards to exploit loopholes in CPL is through the use of “cell

bosses” or “prison trustees,” to commit acts of torture and pain to extract confessions or inflict punishment on

other prisoners and detainees.154 “Cell bosses” or “prison trustees” are prisoners favored by prison guards to

supervise and terrorize other prisoners at the behest of prison guards. They are used to do the dirty work of

prison guards, which allows them to deny any responsibility if a prisoner complains about being ill-treated or

tortured. Using “cell bosses” permits prison wardens to stay within the bounds of law, while enabling them to

use coercion to extract confessions.155 This problem is compounded by the fact that procurators charged with

the task of supervising law-enforcement activities do not act or otherwise powerless to act because procurators

149 Amnesty International, People’s Republic of China—Torture and Ill-Treatment: Comments on China’s Second Periodic Report to the UN Committee Against Torture (London, UK: Amnesty International Press, April 1996), p. 4.150 Amnesty International, People’s Republic of China—Torture and Ill-Treatment, p. 5.

151 Amnesty International, People’s Republic of China—Torture and Ill-Treatment, p. 5.

152 Amnesty International, No One is Safe, p. 31-32.

153 Amnesty International, No One is Safe, p. 34.

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are also expected to work closely with the police to investigate and prosecute criminals.156 Inability of the

procurators to operate freely impedes the emergence of independence judiciary in China.

Inadequacy protection of human and legal rights available to prisoners once they are detained or held in

police custody make them extremely vulnerable to police brutality and torture. Prisoners are routinely held

incommunicado for months before they are granted trail or formally charged. Chinese law does not provide

access to lawyers, doctors, or family after detention. While a prisoner is in custody they have to apply for

permission to seek access to legal counsel.157 Since prisoners are held captive by prison guards for months they

become highly susceptible to torture and other coercive techniques. Lack of adequate legal protection and

insufficiency of laws to criminally prosecute torturers allow security forces to use torture with impunity.158

Besides the structure of an authoritarian country, which disallows any form of public scrutiny of its human

rights practices or free discussion of the inadequacies of the legal system in the domestic press, shields the

government and its policing agency from public scrutiny. The lack of public scrutiny, lack of sufficient

procedural safeguards, routine official cover-up of incidents of torture, and the misuse of penal system to

suppress political dissent had emboldened security forces to act with impunity. As a result torture has become

routine and institutionalized in the Chinese penal system, which prevents the PRC government from complying

with the provisions of Torture Convention, despite various attempts to reform the Criminal Procedure Law.

Repression of Religious Activities

China signed the International Covenant on Civil and Political Rights (ICCPR) on October 1998 and

ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in March 2001. The

154 Amnesty International, People’s Republic of China—Torture and Ill-Treatment, p. 3.

155 Amnesty International, People’s Republic of China—Torture and Ill-Treatment, p. 3.

156 Amnesty International, People’s Republic of China—Torture and Ill-Treatment, p. 3-4.

157 Amnesty International, Judges and Torture, p. 4.

158 Amnesty International, No One is Safe, p. 41.

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signature of the Civil and Political Rights treaty and the ratification of the Economic and Social Rights treaty

mark a significant step. However, various NGO reports and the annual U.S. State Department reports show that

genuine change in human rights practices is yet to emerge in China; importantly in the area of political

freedoms very little change has resulted.

According to the provisions of Article 18 of the ICCPR, “everyone shall have the right to freedom of

thought, conscience and religion,” which includes the freedom to “adopt a religion or belief” either individually

or in a group and practice a “religion or belief in worship, observance, practice and teaching.”159 In addition,

Article 18 of ICCPR requires participating states not to interfere or use coercion to impair the freedom of

individuals in either choosing or practicing their religion. Similarly, provisions of ICESCR also indicate that

state parties are expected to respect basic social and cultural rights of its citizens and not discriminate on the

basis of religion. Since the end of Mao’s regime and gradual divesting of communist ideology, which

dissuaded the pursuit of religion and faith, there has been steady increase in the number of adherents to

Buddhism, Daoism, Islam, Catholicism, and Protestantism.160 According to regulations passed in 1994, the

PRC government claimed that religious activities would be regulated and monitored by state authorities to

ensure that such activities do not “undermine national unity and social stability.”161 To facilitate monitoring all

places of religious activities such as, “temples, monasteries, mosques, churches, or other fixed locations where

religious activities are conducted must be registered” with the Religious Affairs Bureau.162 Any religious

activity that is conducted without the explicit sanction of the Religious Affairs Bureau is considered to be illegal

and involved individuals or religious groups can be sanctioned, detained or punished.

159 See the International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature 16 December 1966, UN Office for High Commissioner on Human Rights.

160 Exact numbers are not available because the PRC government does not maintain such records, and the people of China are also reluctant to provide any information to the government that would identify them with a particular group or community because of the fear of prosecution or intimidation.

161 Amnesty International, People’s Republic of China: Religious Repression in China (London, UK: July 1996), p. 4.

162 Amnesty International, PRC-Religious Repression in China, p. 4.

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Control and monitoring of religious activities, especially religious activities of Tibetan Buddhists,

Xinjian Muslims, and Catholics, is very high on the policy agenda. The PRC government is particularly

concerned about allegiance to religious figures such as the Dalai Lama and the Pope as destabilizing. CCP has

attacked followers of Dalai Lama and the Pope as “splittists.” 163 The PRC government has strongly encouraged

the need to demonstrate patriotism in all religious activities. Organized religion is viewed as a threat to national

security because religion is closely associated with cultural and ethnic identities, which is distinct from the idea

of national identity promoted by the party-state. Therefore, as Chinese delegates to the UN Commission on

Human Rights pointed out, “no one, no association and no religion can be allowed to violate national law,

infringe upon the interests of the people, foment splits among nationalists and sabotage national unity.”164

Former Chinese President Jiang Zemin wrote an article in 1996 in the People’s Daily in which he stressed the

need to “unite and educate religious personalities in a planned way,” and assist religious groups that promote

patriotism and national solidarity. Although Article 36 of Chinese Constitution guarantees protection of rights

of the believers as well as non-believers, it points out that the “freedom of religious belief” is not equivalent to

“freedom for religion.” In other words, Article 36 can be interpreted to mean that one is free to have religious

beliefs of their choice, but they are not allowed to organize and practice their religion without the permission of

the state.165

The party-state’s efforts to control, monitor, and regulate all aspects of social life, especially religious

life. Internal documents of Communist Party smuggled out of China and published in Western media outlets

reveal how the Chinese state has launched a campaign to suppress unauthorized religious groups, squash

underground Catholic churches by relying on secret agents to infiltrate religious organizations. The PRC

government has particularly targeted the Falun Gong movement.166 Top leadership of the Chinese government

is highly concerned that organized religion might pose a direct political challenge to the supremacy of the 163 The term “splittists” is a unique Chinese construction, which literally means to “split” or separate the country. This term is particularly reserved for the Tibetans and the Xinjian’s Uighur Muslims because of their continuing efforts among the residents of these two autonomous regions to seek independence from China.

164 Cited in Amnesty International, PRC-Religious Repression in China, p. 2.

165 Amnesty International, PRC-Religious Repression in China, p. 4.46

Communist party and potentially destabilize economic reforms. This belief has led to severe restrictions on

religious freedom in China.

Conclusion

China’s behavior towards the international human rights regime is largely influenced shifts in the

political philosophy of the ruling Communist Party and in the dynamics of domestic politics. The post-1949

communist China considered human rights promoted by the Western nations, especially the excessive focus on

civil and political rights and individual liberty, to be antithetical to the Maoist conception of the state.

Communist China was developed on the edifice of state ownership of all means of production, equality in the

distribution of resources and wages, access to social welfare, and guarantee of the right to work.167 The state

was (and in many ways is still) seen as an entity that represents the collective aspirations of the Chinese people.

Any individual or private group within or outside China that challenges the supremacy of the state is

regarded as a threat. Therefore, it was within the purview of the Chinese state to “discipline” any group or

individual and prevent efforts that remotely seeks to challenge the supreme authority of the state or criticize its

policies. For instance, labor groups that seek better working conditions, wages, and health care are

characterized as selfish people. Similarly, religion and religious practices is characterized as threatening the

principles of the socialist enlightenment and collective approach to nation-building.

The collectivist ideals drawn from Marxist and Maoist teachings are reflected in China’s international

posture, particularly in the form of anti-Western and anti-colonial pronouncements. China became an advocate

for communist and socialist regimes in the developing world. More importantly, China and other socialist

countries saw the disproportionate emphasis of the Western powers on the International Covenant on Civil and

Political Liberties as a political ploy to gradually dismantle the communal ideals of the Chinese state. The

166

? Philip P. Pan, “China Deepens Assault on Faith: Documents Confirm Resolve to Expand Crackdown,” Washington Post, 13 February 2002, p. A01.

167 See Joseph Fewsmith, China since Tiananmen: The Politics of Transition (New York: Cambridge University Press, 2001).

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reluctant signature of the United States on the International Covenant on Economic, Social, and Cultural Rights

in 1977, and the continued resistance to ratification only bolstered China’s case.

After the 1980s, China gradually ratified eight major human rights treaties. This change in China’s

attitude was largely the result of dramatic shift in the domestic politics of China. The economic reform

launched by Chairman Deng was largely influential in China’s engagement with the human rights treaty

regimes. However, China has been very careful in joining only those regimes that does not threaten the political

configuration of the Chinese state and the supremacy of the Communist Party. China’s ratification of the

Torture Convention in 1988, nevertheless, seriously complicated China’s human rights theory and practice.

The brutal crackdown of the pro-democracy activists at Tiananmen Square in 1989, which immediately

followed China’s ratification of the Torture Convention, was a pivotal event that tarnished China’s image as a

country that was merely interested in a social justice and equitable distribution of wealth. It was clear that

dictatorial Chinese leadership was firm in maintaining complete control over all aspects of China’s political life.

The post-Tiananmen approach of the PRC government is significantly different from the earlier regimes.

China, instead of retreating into a defensive posture, launched an international campaign to assert its views on

human rights. This offensive strategy began with a conference titled “History and the Present Situation of the

Human Rights Issue.” Participants in this conference asserted that human rights norms enshrined in the

international treaties were fundamentally alien to Chinese culture and social values. Hence, the participants

suggested that the international human rights norms should be interpreted and modified to make it consistent

with China’s social, political, and cultural condition. This argument is commonly referred to as the relativist-

guoqing position, which holds that China’s unique cultural characteristics, history, large population, and

development agenda does not allow for common universal human rights standards.168 Chinese officials in

defense of their human rights policies repeatedly make the following arguments:

1) First, PRC contends that it is nobody’s business to interfere in the internal affairs of China. As a sovereign nation China sees it fit to govern the country as it pleases.

168

? Michael J. Sullivan, “Developmentalism and China's Human Rights Policy,” in Debating Human Rights: Critical Essays from United States and Asia, ed., Peter Van Ness (New York: Routlege Publishers, 1999), p. 125.

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2) Second, the Chinese authorities argue that draconian policies are needed to maintain law and order, and ensure stability. They maintain that law, order, and stability are essential building blocks for economic development and prosperity.

3) Thirdly, the Chinese authorities have attempted to show that their notion of human rights based on Confucian cultural value system or “Asian Values” is distinctly different from Western individualistic value system. Hence, the Chinese argue that they are being judged by standards that are inconsistent with their cultural, social, and political history.

The relativist-guoqing argument made by the Chinese government seems rather straightforward, acceptable,

and even plausible. One can even concede the logic behind thinking and the actions of the Chinese government.

However, the litany of evidence generated by human rights advocacy groups show that China’s human rights

record is absolutely abysmal. Torture, prison labor camps, extra-judicial killings, harvesting of human-body

parts, denial of due process, the abuse of political prisoners, detentions, psychological harassment, the brutal

repression of labor groups, and the denial of basic political freedoms seem excessive and unnecessary to ensure

basic law, order, and stability.

Another argument put forward by the Chinese intellectuals closely associated with the government is

that these draconian practices are necessary to maintain the territorial integrity of China. If such repressive

measures were not followed, Chinese leaders believed that China might implode in the same way Soviet Russia

did and splinter into many provinces, which can destabilize the entire region and produce anarchy (luan thesis).

Therefore, the Chinese government justifies the severe methods to prevent social disintegration. They believe

that individual rights need to be subordinated to the will of the state for the greater good of the nation. The

submission of the individual will to the state and following the dictates of the state, which is a central principle

of the Asian or Confucian values system, is seen as a necessary element that will enable China to achieve

economic development and prosperity. The real long-term objective of China is to attain to economic

development and reduce poverty, which they believe will eventually lead to gradual openness, freedom of

expression, and political competition.

Does the objective of economic development warrant complete control of all dissent, freedom of

political expression and information? The central problem with China’s human rights policy lies in the answer

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to this question. Obviously, the answer to this question as presented by China is—yes, repression and

Orwellian control is necessary. Dissidents and human rights advocates have vociferously and persuasively

argued that repression and complete domination of civil society is not needed for economic development.

China does not even characterize the actions it takes to maintain “law and order” as human rights violations. If

the Chinese government believes that there are no fundamental, universal and inalienable human rights to begin

with, then how can they be violated?

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Endnotes

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