THE LIMITS OF COMPLIANCE
Ann Kent, University of Pennsylvania Press, Philadelphia, 1999, 328 pp.
China, the United Nations and Human Rights is a thorough study of Chinas interactions with the human rights regime of the United Nations - from the Commission on Human Rights (CHR) to the International Labor Organization. The goal Australian scholar Ann Kent sets is to assess the nature of Chinas attitude toward interdependence in the global community. As China is about to join the World Trade Organization, such an investigation into whether China contributes to the construction and implementation of international human rights standards, or whether, on the contrary, its aim is to neutralize and instrumentalize these norms, is of particular relevance. One of the books most interesting aspects is the authors analysis of the balance China attempts to strike between recognizing the legitimacy of the human rights system and protecting its sovereignty.
The book also provides an educational introduction to the UN human rights regime and an assessment of its efficacy. It contains an abundance of details on the intricacies of the operation of the UN machinery, including comments from UN experts and government and NGO representatives that do not appear in official documents. Thus it is a useful reference for those seeking to understand the functioning of the UN human rights system, both for academic and practical reasons.
Chinas integration into the global human rights system can be assessed in terms of both international and domestic compliance. Such measures as ratification of human rights instruments and participation in world conferences give an indication of international compliance. Considering the domestic level, Kent makes the crucial distinction between de jure and de facto compliance. Contrasting substantive and procedural compliance provides another means of evaluation. An example is the reaction of the Committee Against Torture (CAT) to Chinas 1993 report, as Kent writes: [T]he mere fact of procedural compliance with the Committees requirements elicited final Committee approval of Chinas report, despite its revelations of substantive non-compliance at domestic level.
Kent strongly supports the idea that, rather than indicating a willingness to be integrated into the human rights regime, Chinas cooperation springs from the need to be seen to be cooperative in order to realize other goals: As a result of its procedural dexterity.... it became questionable whether China was being incorporated into the UN regime.... or whether it was simply undermining the regime. China has frequently used international fora to promote its own human rights concepts and counter existing standards. At the 1993 World Conference on Human Rights, for example, China insisted that paramount importance be given to the rights to development and to subsistence, and subordinated universality to the principles of sovereignty, noninterference and cultural relativism. Beijing has stuck to this approach, most recently when, along with 25 other states, it signed a restrictive interpretative declaration attached to the 1998 Declaration on Human Rights Defenders. The signatories of this document insist that the Declaration cannot contradict the principles of state sovereignty and noninterference in domestic affairs, and that the rights it contains can only be exercised in accordance with national law.
Participating in standard-setting provides all governments with opportunities to influence human rights procedures through a complex game of unlikely alliances. In the ongoing negotiations on the Draft Optional Protocol to the Convention Against Torture, for example, both China and the United States supported reservations likely to undermine the Protocol, the main purpose of which is to allow periodic and ad hoc country visits by the committee that monitors the treaty. The possibility that states could just opt out of the visits mechanism would deprive the Protocol of any real force.
Of course, integration into the UN human rights system - such as ratifying treaties - means accepting some degree of monitoring by the international community through mandated bodies. Kent distinguishes three distinct periods in Chinas attitudes and behavior, starting in 1971, when China replaced Taiwan at the United Nations. Until 1979, China stayed away from UN human rights activities. The next decade saw an opening: a member of the CHR since 1982, China ratified some human rights instruments - but not the two most basic and comprehensive ones, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The 1989 June Fourth Massacre began a new era where China initially lost and eventually retrieved control over its interactions with the United Nations.
Up until then, Chinas human rights situation had remained largely immune from scrutiny, whether by the United Nations or by non-governmental organizations (NGOs). The first UN resolution on human rights in China was adopted at the 1989 Sub-Commission on Human Rights, prompting a characteristic reaction from Beijing: It is null and void and has no binding force on China whatsoever. From then on, Chinas main goal has been to dodge scrutiny. Kent shows that in this respect Beijings attitude has been constantly shifting: Considerations of sovereignty came into play when determining in which cases China could afford to be flexible. In other words, China chooses when and where it can afford to lose some degree of sovereignty, thus prioritizing certain areas of cooperation.
Signing the two Covenants, inviting High Commissioner for Human Rights Mary Robinson to Beijing and releasing dissident Wei Jingsheng were employed as shields against the prospect of a resolution at the CHR. These gestures indicate that Beijing is willing to continually renegotiate its sovereignty in the interests of avoiding the loss of face a successful resolution against it would entail. In fact, Kent writes, they were concessions on sovereignty China offered as a quid pro quo for human rights concessions by the international community. As she points out, inviting some experts from one of the UN special procedures - such as the Working Group on Arbitrary Detention, which undertook a mission to China in 1997 - is less costly, in terms of sovereignty, than the passage of a UN resolution. Such concessions were ultimately well rewarded. Since 1997, Beijing has put significant efforts into replacing public scrutiny by the CHR with discreet bilateral dialogues on human rights, characterizing such an approach as cooperation, not confrontation. This phrase, introduced by China, has now become a motto for all Chinas dialogue partners.
Beijing is thus walking a tight rope: it has to give away enough of its sovereignty - and risk criticism - to be able to participate in the system and influence it. As a result, China now receives praise for its largely procedural cooperation with the UN human rights regime from its dialogue partners, who no longer exercise their right to monitor Chinas human rights situation at the CHR, lest Beijing ends the dialogue. However, Kent writes, what former resolution supporters have failed to acknowledge is that this dialogue approach has considerably weakened the UN human rights procedures, as it drew attention away from multilateral, UN-mandated monitoring to a quiet bilateral process. China has thus successfully secured its right to special treatment.
Kent stands resolutely on the side as an observer, rather than a user of the mechanisms she describes, an attitude which, at times, leads her to overlook the practical limitations of some UN bodies: for example, she puts great emphasis on the role of the Subcommission on Human Rights, although the significance and usefulness of this body have much declined over the last few years, as the great bulk of public monitoring has now shifted to the CHR. Yet her account is not overwhelmingly focused on the UN documents; Kent draws on a variety of sources, including government statements, interviews and NGO reports as well.
Although at times readers have to grapple simultaneously with two types of obscure jargon - academese and UN - speak Kents observations shed a new light on a little known aspect of Chinas foreign policy, and on its instrumentalization of the UN human rights regime, either to protect its sovereignty or to push forward its own human rights concepts. At a time when China is targeting new countries with its dialogue offensives and when the role of the Subcommission is being reduced by cutting its meeting times and monitoring capacity, it seems that Kents worst fears are becoming reality. Thus as well as offering a thorough account of Chinas interaction with the UN human rights mechanisms, her book sends a warning that many, from governments and United Nations bodies to NGOs, should heed.
B□trice Laroche is UN Liaison for Human Rights in China, based in Paris.