This year, the UN Commission on Human Rights failed to consider any resolution on Chinas human rights record. But now it is clear that more is at stake than just Chinas ability to evade the scrutiny of the international human rights regime, write Nicolas Becquelin & Chine Chan, who both attended the 58th annual session of the Commission.
Although the mandate of the UN Commission on Human Rights (CHR) is to examine, monitor and publicly report on human rights situations in specific countries at its annual six-week long meeting in Geneva this year the abysmal human rights violations occurring in China were not on the agenda. The CHR, the highest international body on human rights, has long been considered as lacking bite where putting pressure on China is concerned.
The CHR has never managed to pass a resolution criticizing the PRCs human rights record, despite the scope and extent of violations reported and the regular condemnation of China by countries who are members of the Commission.
Still, this years 58th CHR session proved even more unchallenging, as China altogether escaped the threat of censure with not even a draft resolution being tabled for discussiononly the third time this has happened in 13 years. (The first was in 1991, when Western powers sought Chinas cooperation in the Security Council so that it would not block action against Iraq. The second was in 1998, when previous sponsors of the China resolution agreed to see if soft tactics would work better than the pressure of multilateral action.)
The fact that the United States, the usual sponsor of such resolutions, failed to get elected as a member of the CHR last year, and the general focus on the war against terrorism the reason most frequently advanced for explaining the lack of censure of Chinaare actually only part of the explanation.
The role played by countries that are openly opposed to the censure-mechanisms of the Commission is another major reason. China has been at the core of this effort from the start. A hybrid coalition has emerged from what was initially the Asian Grouplong-time proponents of the relativism of international human rights norms in the name of Asian values and advocates of using dialogue instead of confrontation and finger-pointing as a way of addressing human rights concerns. These governments have joined forces in the so-called Like Minded Group (LMG), which now includes governments such as Cuba, Iran, Syria, India and Pakistan, among others.
During this years session, the wide array of procedural and obstructionist techniques used, many of them pioneered by China, severely hampered the work of the Commission, while at the same time curtailing the role of independent non-governmental organizations (NGOs).
Since the mid-1970s, contrary to what is often believed even within diplomatic circles, Beijings strategy has always been to engage the UN human rights machinery instead of simply opposing it. In Andrew Nathans words, China has looked to shape rather than break the norms that are instruments of the human rights system. Recent experience demonstrates that China has recently been able to subvert and limit some of the most efficient mechanisms for bringing multilateral pressure on specific countries, such as votes on country-specific resolutions, the work of special rapporteurs commissioned by the CHR to report on individual countries, or on specific issues (such as education, torture and arbitrary detention).
A BENEFICIAL DIALOGUE?
Beijing has paid particular attention to avoiding being censured by the Commission. Its main tool for this has been its policy of engaging in dialogues on human rights with various partners, such as Australia, the United Kingdom and the European Union. Unlike multilateral pressure, these dialogues are premised on the kind of cooperation between governments that characterizes bilateral aid. Many countries involved in such dialogues insist that they achieve better results through quiet diplomacy than by using multilateral approaches, which mainly involve shaming governments into compliance. Beijings has insisted that a condition for engaging in such dialogues is that it is not censured by the CHR.
For a long time, human rights organizations have pointed to the defects of such quiet diplomacyabove all that quietness is hardly appropriate in the face of the magnitude and the gravity of human rights violations in China. Indeed, the brutality of the anti-crime Strike Hard campaign, the continuing crackdown against Falungong and the vicious character of the repression of the Uighur population in the name of anti-terrorism in Xinjiang were examples from the year 2001.
Trading international public instruments and procedures for secretive dialogues does not seem to be a move toward more transparency and accountabilitytwo elements that surely must be the foundation for any improvement in human rights. By tacitly agreeing to abstain from criticizing the Chinese government, many governments, and the European Union, have abandoned a powerful means of leverage on China. The complete lack of benchmarks to judge the progress or the impact on the ground of the different dialogues makes the situation much more comfortable for Beijing than the previous system under which its human rights record was at least subject to some degree of public scrutiny at the United Nations.
Since the adoption in 1999 of a resolution submitted by China and the LMG, the Sub-Commission on the Promotion and Protection of Human Rights can no longer adopt country-specific resolutions and must refrain from negotiating and adopting thematic resolutions which contain references to specific countries. This resolution has a particularly strong adverse impact on bringing multilateral pressure to bear on countries. As the chairperson of the Sub-Commission commented, the ability to prepare a draft resolution on a countrys situation was a very effective means of encouraging constructive dialogue and negotiation between the Sub-Commission and the governments responsible for human rights violations The inability to pursue country work openly and seriously has significantly hampered the Sub-Commissions capacity to promote and protect human rights around the world.
CHINA SHIELDS ITSELF
Another factor which makes Beijing so wary of being censured by the CHR is that it has made extensive use of Chinas victories during past sessions for internal propaganda needs, in order to defuse domestic criticism and to portray the regime as defending China against the assault of hostile countries. Proposed CHR resolutions critical of China have been depicted in the PRC media as a battle between the United States and China. The defeat of tabled resolutions through procedural no-action motions has been the occasion for extensive self-congratulatory celebrationsas, after all, such victories against the United States are not so frequent.
By structuring the debate in such nationalistic terms, especially given that most Chinese citizens are denied alternative sources of information, Beijing eliminates any possibility of critical discussion on rights issues and relegates its domestic critics to the camp of traitors. This brand of propaganda has, arguably, made China even more sensitive to the possibility of a resolution addressing its human rights record, and explains, in part, why it continues to devote such efforts to ensuring that it stays that way.
In another indication of how much importance Beijing attaches to winning on this issue, many times in the past, China has resorted to applying direct pressure on CHR members, as well as threatening independent UN experts with reprisals against their countries of origin.
This year, Guatemala was overtly cautioned that if it sponsored the resolution on Cuba (which it did), at the next Commission revenge would be extracted by tabling a resolution against Guatemala. The return of the United States to the Commission next yearit was elected to membership during the last week of the sessionwill probably block such a move since Guatemala was merely a US proxy in sponsoring the Cuba resolution.
Such tactics, especially at a time when the United States has conveniently decided to dispense with respecting certain fundamental human rights norms in its war against terrorism, give the lie to the Asian Groups claims that developed countries use the CHR to bully small, weak developing countries while escaping censure themselves.
From the outset, there did not appear to be much likelihood that China would face significant criticism at the 58th session: the United States was not a voting member and the European Union had rejected the idea of a resolution (the text from the European foreign ministers meeting stated that if a resolution on China were tabled, the EU would study it carefullya diplomatic code for complete inaction).
The context of the international war against terrorism meant that many were closing their eyes to attacks on fundamental liberties around the world. Beijing also expected some reward for joining the ranks of the US-led coalition (Russia was equally spared a resolution on Chechnya for similar reasons).
WTO accession and winning the privilege of playing host to the 2008 Olympic Games has meant increased international stature for China, giving it more political and economical leverage. Also, Beijing could point to having ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in February 2001 as a significant achievement.
European delegates shy away from the idea of tabling a resolutionlet alone endorsing oneon China. They argue privately that the price would be an immediate rupture in the process of dialogue (as in 1997 when China interrupted its dialogue with the EU), and that this would ultimately have an adverse impact on human rights progress. The ratification of the ICESCR and the release of some prominent political prisoners has been cited as proof that the dialogue produced results.
The certainty of various Western dialoguists that their efforts were the reason for such achievements ignores the role of other actors, other factors and of long-term pressure in achieving these results. Following their logic to its obvious conclusions one reaches the eminently absurd conclusion that so much more could have been achieved if they had stopped putting pressure on China much earlier. Given Chinas historical policy of engaging with international human rights institutions, it is likely that China would have ratified the ICESCR at some point anyway. Emphasizing economic and social rights at the expense of civil and political ones has long been a feature of LMG tactics, in an apparent attempt to dilute the nature of all rights.
With no European country willing to co-sponsor a resolution on China, the US delegation opted early on in the Commission not even to attempt to find a proxy among friendly CHR members to introduce any text on China. The lack of resolve appeared partly due to divisions within the US administration on China policy, with disagreement between the more critical Department of State and a more laissez-faire stance from other parts of the Bush administration. Thus the threat of a resolution never materialized, and for only the second time in 13 years, no text addressing the human rights situation in China was tabled before the CHR.
LIMITING THE CHRS POWER
Besides working hard to ensure that it did not face censure itself, China has pushed assiduously to limit the ability of UN experts appointed to investigate human rights abuses, such as special rapporteurs, as well as to reduce the access and importance of NGOs at the Commission and weakening the CHRs ability to address rights violations. In both respects it received strong support from the LMG and the Asian Group.
This years offensive started under item 3, Organization of the Work of the Session, with an intervention by Japanese Ambassador Yusuaki Nogawa on March 19. On the behalf of the Asian Group, he asked for the reduction of the number and length of resolutions (biennialization of as many thematic resolutions as possible) and discontinuation of resolutions which are no longer warranted by existing circumstances. Most importantly, he continued, the Asian Group continues to place the highest priority on creating an atmosphere of dialogue, cooperation, consultation, understanding and consensus building to enhance the effectiveness of the Commission and to avoid politicization of its work. The Asian Group would like these considerations to govern the work of the Commission, including agenda item 9. The principal aim of the Asian governments was apparently to ensure that no reference was made to their violations of human rights under this latter agenda item, which allows for the discussion of situations in particular countries. Ensuring an efficient and effective functioning of the Commission was evidently not one of their priorities.
Chinese Ambassador Sha Zhukangs statement under the same agenda item was even more clearly directed at restricting the role of NGOs: Some individuals, acting as representatives of several NGOs at the same time, have spoken many times under the same agenda item, repeating the same issues and taking up a lot of time. By contrast, government delegates, in particular, government observers, are faced with more and more restrictions in terms of time allocated for their statements. We hope that the Commission will, in accordance with rules of procedures, strictly regulate the participation of NGOs so that the session could proceed in an orderly way.
In fact, Shas oral statement in Chinese was even stronger than the English version of the written statement that was circulated. He said in his speech: The increase in meetings and the increase of NGO participation has been seriously affecting the efficiency of the Commission. The United Nations should take serious action to avoid duplication of NGO speeches in content and issues and to avoid overuse of resolutions to disturb the work of government delegations.
The sudden decision by the UN Secretariat in New York at the beginning of the second week of the session to cancel all extra sessions (a normal feature of the CHR) for budgetary reasons, could not have come as a better surprise for the LMG and the Asian governments. The cessation of evening meetings as a result meant that the CHR had difficulty getting through its work, and the Bureau (headed by a troika of CHR members, this takes on the role of organizing the session) was forced to adopt a number of austerity measures.
The Chairman of the Commission, the Polish Ambassador to the United Nations, admitted publicly that it was an almost impossible situation to carry out the work of the session in such conditions. He also indicated that he had resisted pressures from certain countries to cut out NGO time altogether and that he had insisted on applying a reduction in time across the board. Special rapporteurs, independent experts and working groups of the CHR, which provide analyses of thematic and country-specific human rights violations, were allocated only five minutes each to present their reports on their whole year of work.
Nevertheless, the all-important item 9 of the agenda, the discussion of human rights situations in any part of the world, was abruptly closed by the end of the third week, and 34 NGOs were thus deprived of time to deliver the oral statements on specific country situations they had planned and submitted in advance as required.
GOVERNMENTAL NGOS ON THE RISE
Another way to hinder the work of the Commission favored by the LMG and other countries has been to bring more and more government-organized NGOs (known as GONGOs) to speak during the session. By making numerous statements under the different items of the agenda, GONGO interventions effectively diminishes the time available for independent NGOs. GONGO activity is also increasingly burdening the limited resources, both in time and money, of the CHRs secretariat.
It was, therefore, almost ironic to hear Asian governments complain about the duplication of NGO statements when Asian GONGOs registered to speak under every item so they could repeat their governments position, however irrelevant to the nature of the item discussed.
Chinas GONGOs were most active under item 10 (economic social and cultural rights), with speeches from the United Nations Association of China, the China Society for Human Rights Study and the All-China Womens Federation defending the record and various achievements of the PRC. In a rather undisguised government propaganda exercise, diverse alleged victims of Falungong spoke about their experiences under different items of the agenda, urging the international community to join forces with the Chinese government to combat the evil cult.
The most substantial set-back for the 58th session, however, came from the deployment of the no-action motion for matters other than resolutions on Chinas human rights situation. China had previously used this procedural motion, which prevents the CHR from taking any additional action including voting on a resolution, every year since 1990. Only in 1995 did the Commission defeat a no-action motion and go on to vote on a resolution on China, which was ultimately defeated by one vote under heavy lobbying by Beijing.
Previously the exclusive preserve of China, no-action motions were invoked three times at this years session: for a resolution on Zimbabwe, where it was successfully employed to prevent a discussion of the resolution; and on the Cuba resolution and the Draft Optional Protocol to the Convention Against Torture. Both of the latter no-action motions were defeated, and the resolutions later adopted. China co-sponsored all three. This tactic is plainly detrimental to the fulfillment of the mandate of the CHR, and both the European Union and the United States have condemned the practice, saying that they would systematically vote against it.
No-action motions were not the only procedural tools that were deployed during the Commission. The LMG also proposed a greatly increased number of resolutions, apparently with the sole intention of tying up the already-overloaded CHR with useless work on rhetorical statements without much substance.
CHINAS RECORD EXPOSED
Despite the absence of a China resolution to focus attention on the issues, Chinas human rights record for the year 2001 was still sharply criticized on the floor of the 58th session, by individual governments, the European Union, special rapporteurs and NGOs.
Among the most frequently addressed issues were Chinas widespread use of torture; the likelihood of miscarriages of justice due to procedural shortcuts and pressure for convictions in the brutal Strike Hard campaign; the persecution of unofficial Christian churches and the continuing crackdown on Falungong; restrictions on freedom of speech, freedom of the press and control of the Internet and repression against cyber-dissidents.
The scale of the use of the death penalty in the Strike Hard campaign was a concern of many governments, especially from European countries. (In a report published just before the session, Amnesty International recorded 2,960 death sentences and 1,781 confirmed executions in just three monthsmore than the total for the rest of the world over the past three years.)
Chinas attempt to use the anti-terrorism war as an excuse to intensify its repression against ethnic populations in Tibet and Xinjiang was also denounced. Amnesty International issued its most recent report on human rights in Xinjiang. Some speakers also questioned the refusal to give the UN High Commission for Refugees and NGOs access to North Korean refugees in China.
The work of the different special rapporteurs and working groups mandated by the CHR to report either on country situations (country mandates) or on specific issues (thematic mandates) has long been recognized as one of the most important mechanisms at the disposal of the Commission to aid it in conducting its mission of monitoring human rights worldwide. Despite the limited means at their disposal and the constant hurdles placed in their way by governments, their opinions and reports carry weight as behind them is the authority of the most important international human rights body.
China did not escape some harsh criticism at this years session, in particular from the Working Group on Arbitrary Detention and from the special rapporteurs on Torture and on the Right to Freedom of Opinion and Expression.
The working group on Arbitrary Detention rendered six opinions concerning detention cases in China
during the year 2001, every single one judged by the working group, after having received the response of the Chinese government, to be in the second category of arbitrary detention, that is, when the deprivation of liberty is the result of a judgment or sentence for the exercise of rights and freedoms. The Chinese government was urged by the working group to address the cases cited.
Of the six cases, two concerned prominent Uighur individuals detained in Xinjiang on charges of endangering state security. Businesswoman and activist Rebiya Kadeer was sentenced to eight years for attempting to pass state secrets abroad, a charge that the Chinese government confirmed in its exchange with the working group. The report stated that according to various UN decisions, information about violations of human rights could not be labeled state secrets, and expressed concern that the Chinese government had misused the term secrets to criminalize the collection and dissemination of such information.
Thus any information on human rights in Xinjiang that Kadeer might have sent to people outside the country, is under the protection of Article 19 of the Universal Declaration of Human Rights, which states that the right to freedom of expression includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers, and since its dissemination, even outside the territory, is guaranteed by that article, such an initiative [as Kadeers] cannot constitute an offense and cannot therefore be punished.
In another case, Tohti Tunyaz (pen name Tohti Muzart), a Uighur Ph.D. candidate at the University of Tokyo, was sentenced after he had been arrested for allegedly stealing state secrets (he was conducting research on pre-1949 Xinjiang history). Despite the justifications given by the Chinese government, the report stated that the working group is of the view that Mr. Tohti Tunyaz, as a graduate student and academic researcher has attempted to exercise his right to undertake academic research and collect data within the framework of his work as an academic researcher.
The working group also considered the case of Jiang Qisheng, arrested in 1999. The report said the group believes that Jiang Qishengs arrest and imprisonment were based solely on the free expression of his views in a newspaper interview during which he expounded his ideas and made a public statement in a peaceful manner. In so doing, he was simply exercising the right to freedom of opinion and expression guaranteed by article 19 of the Universal Declaration of Human Rights.
PRESS FREEDOM CURTAILED
In his report to the CHR, the Special Rapporteur and on the Right to Freedom of Opinion and Expression, Abid Hussain, expressed concern regarding curbs on press freedom imposed through the directive issued in August 2001 by Chinas State Press and Publications Administration. Media organs could be summarily closed down for reporting on any one of the seven proscribed topics, including criticism of government policies or reporting that harms national interest.
Other cases documented by the special rapporteur included that of Lu Xinhua, who was arrested in mid-March 2001 in Wuhan and charged with subversion, apparently for having published articles about rural unrest and official corruption, which appeared on an overseas Internet news site; and Zhu Ruixing, a former Chinese television editor sentenced to three years imprisonment on charges of subversion for sending e-mails critical of the Chinese government to friends.
The reports from the Working Group on Enforced or Involuntary Disappearances, and from the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination and Xenophobia also included critical comments on the situation in China.
The Chinese government tried to blur the picture emerging from these critical reports by pretending to collaborate with the CHR mechanisms while in fact trying to avoid full scrutiny. For instance, this year Beijing issued a personal invitation to the chairman of the Working Group on Arbitrary Detention. But this invitation was not addressed to the Commission secretariat, as is the proper procedure. A few years ago, the Special Rapporteur on Torture, Sir Nigel Rodley, was similarly issued an invitation for a friendly visit. These are attempts to bypass the clearly defined terms of reference of UN experts visits, which include unannounced visits to places of detention, free access to any facility of a certain type, confidential interviews with any detainee and so on. Thus, while China claims it is committed to cooperate with international human rights mechanisms, in reality it denies independent experts the access they need to monitor the sincerity of Beijings adherence to international human rights standards.
A SHORT-SIGHTED POLICY
The readiness of the international community, in general, and the European countries, in particular, to trade off multilateral pressure, above all censure at the annual session of the CHR, for bilateral dialogues reflects a disturbing cynicism towards human rights and the institutions constructed over the last half-century to monitor and enforce them. Despite their public plaudits for the dialogue, in private those same governments are highly critical about what has been achieved so far and about the PRCs human rights situation, but the real obstacle appears to be that human rights pressure is viewed as an barrier to healthy
economic relations with the PRC.
As the proceedings of the 58th session showed, this attitude is proving singularly short-sighted: in the end, what is at stake is not only the situation in China, but the whole legitimacy of the work and utility of the CHR as an instrument for the advancement of human rights around the world.
By allowing China to escape censure on its human rights situation and watching without reaction while it joins with others to derail the work of the CHR, supposed supporters of human rights internationalism have created a precedent that many countries who lack the kind of political and economic leverage possessed by China are increasingly using to escape scrutiny of their often deplorable human rights records.
Almost four years ago, China human rights specialist Ann Kent wondered in the pages of this journal about the eventual outcome of Beijings tactics: The jury is still out on the question of whether Chinese tactics will undermine the norms of the Universal Declaration of Human Rights or whether the procedural fencing will simply fade into the background. If the experience of the 58th Session is a sign of the future direction, the jury has returned, and the verdict is not good.
For more insight on the 58th session of the Commission on Human Rights, see the special editions of Human Rights Features published by Asia-Pacific Human Rights Network, available online at http://www.hrdc.net/sahrdc/hrfchr58/index.htm
NICOLAS BECQUELIN is senior researcher and CHINE CHAN is program officer in HRICs Hong Kong office. Both attended the 2002 session of the UNCHR in Geneva.