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China and UN High Commissioner for human rights sign watered-down MOU

November 20, 2000

Cooperation with UN, wording and substance call into question China’s commitment to improving human rights

Human Rights in China (HRIC) is concerned that the timing and wording of the signing of a Memorandum of Understanding (MOU) on technical cooperation by the Chinese government and the High Commissioner is yet another example of how Beijing forces the international community to distort agreed-upon human rights standards to accommodate its demands.

While HRIC believes that China desperately needs the kind of assistance the Office of the High Commissioner for Human Rights (OHCHR) can provide if it is to improve human rights protections, Beijing’s severely inadequate level of cooperation with the UN rights monitoring mechanisms, its insistence on removing references to international human rights standards from the MOU and the lack of substance in the program of technical cooperation to which it has agreed all make this signing look more like show than a real recognition of those needs. HRIC fears that, just as Beijing has successfully muted criticism of its continuing, egregious violations of human rights through bilateral dialogues, China could use this pretense of cooperation to muzzle UN monitoring procedures and public criticism of its human rights situation.

HRIC supports cooperation programs aimed at achieving institutional improvements in human rights through such measures as human rights education, training and assistance in legislative reform, and believes that the OHCHR has strong capacity and authority to carry out such programs. It is clear that ending abuses of human rights in China and creating effective protections for rights requires that the fact that ignorance and lack of capacity are among the causes of such abuses be squarely addressed. However, we believe that exclusive reliance on such approaches fails to acknowledge the fact that another major cause of abuses is intentional deprivation of rights, including officially-sanctioned, legally-mandated restrictions on internationally-recognized rights.

Different approaches to promoting human rights should be mutually enhancing rather than exclusive. Human rights monitoring and technical cooperation programs should complement each other. We believe that public monitoring, by UN multilateral mechanisms in particular, provides crucial moral support for human rights defenders in China who are struggling to monitor and promote human rights awareness in very difficult circumstances. We commend the UN High Commissioner on Human Rights for publicly expressing concern about aspects of China’s rights record in the past. We call on her to continue doing so and to urge the Chinese government to upgrade its cooperation with her Office after the MOU has been signed.

It took two years for the OHCHR and the Chinese government to negotiate the MOU. Comparison with an earlier draft, which the High Commissioner had expected to sign during her March 2000 visit, reveals disturbing shifts of emphasis. While the previous draft mentioned the "promotion and protection of human rights in China" and the "harmonization of national law and practice with international human rights standards" as the objectives of the cooperation program, in the draft that was signed today the objective has been reduced to the promotion of "better mutual understanding of human rights issues."

Chinese authorities often argue that human rights issues can be addressed by exchanges of views to allow a "mutual understanding" of the country’s situation and specific approach to human rights. However, an exchange of views does not address violations of human rights and thus does not constitute progress, nor is it an effort to bring domestic law and practice in conformity with international human rights standards. These should be at the core of any substantive program of technical cooperation. Furthermore, the only acceptable "understanding" of human rights issues is one based on internationally-accepted human rights instruments. HRIC believes that such language calls into question the Chinese government’s respect for universality of human rights standards. We are all the more concerned that the MOU is intended as a framework for programs of technical cooperation. Wording is crucial, as its sets guidelines for future action by the OHCHR.

Of great concern to HRIC is also the fact that, as compared to a previous draft, ratification and implementation by China of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are no longer expressly mentioned. The decision to cross out references to these core instruments calls in question China’s stated commitment to human rights.

The cooperation program is intended to last two years. However, in its first phase of implementation during 2001, the program will only consist of three workshops on human rights education, human rights and police, and punishment of minor crimes. These workshops are intended to provide an opportunity for an exchange of views between Chinese and handpicked international experts, in a fashion apparently similar to the expert seminars associated with the various bilateral dialogues. There is a risk, HRIC believes, that these workshops will be nothing more than one-shot efforts, with no impact on China’s rights situation. We believe that it would have been preferable to start with more concrete projects, such as human rights training and education of police instructors for example, in order to ensure that the benefit of the expertise of the OHCHR is not restricted to a small circle of high-level officials. Additionally, we wonder why the Program Officer in charge of overseeing the implementation of the projects will not be based in China but in Geneva. This decision raises serious doubts about the efficiency of the operation and about the willingness of the Chinese government to see it achieve any concrete results.

These workshops will enable the Chinese government to claim increased cooperation with the OHCHR. But the signing of this MOU comes at a time when the Chinese government has shown little or no willingness to address the recommendations of UN experts, or to cooperate with them in facilitating monitoring of the human rights situation in China. For example, discussions over the visit to China of the UN Special Rapporteur on Torture, Nigel Rodley, remain deadlocked as Beijing refuses to accept the terms of reference for such missions agreed upon by all UN experts and special rapporteurs. In addition, China has failed to act on the recommendations of treaty bodies, which monitor the UN conventions China has already ratified, or those of various UN working groups and special rapporteurs.

Over the last few years, China has managed to describe a pretense of cooperation with the United Nations as human rights improvements in order to block and avoid monitoring based on internationally-recognized human rights, in particular at the UN Commission on Human Rights. This has been evidenced in the quiet diplomacy of China’s bilateral dialogues on human rights with an ever-increasing number of countries. Dialogue without public monitoring at the Commission on Human Rights has not led to significant reform in China’s law and practice. HRIC is therefore concerned that technical cooperation, like dialogue, could be used by the Chinese authorities to block monitoring by the OHCHR without giving them any incentive to proceed to necessary reforms to improve the country’s rights situation.

China has compelled its dialogue partners to make a clear-cut choice between "confrontation" and "cooperation"—confrontation being synonymous, in Beijing’s view, with "monitoring." Following the same logic, Article 5.2 of the MOU states: "...All the UN officers and experts involved in the projects shall not engage in activities other than those related to the implementation of the programme of technical cooperation." This clearly shows the government’s intention to make sure that the technical cooperation program includes no element of monitoring whatsoever.

However, UN official documents describe technical cooperation activities "as a complement to, but never a substitute for, the monitoring and investigating activities of the human rights programme... the provision of advisory services and technical assistance would not exempt [a State] from monitoring through the various procedures established by the United Nations. Indeed, action by special rapporteurs of the Commission on Human Rights often takes place in parallel with projects of advisory services and technical assistance."

HRIC is worried by the MOU’s apparent departure from existing UN standards in the case of China. We urge all the procedures of the OHCHR to respect the integrity of their mandate and to continue monitoring and reporting the developments in China’s human rights situation. Cooperation programs should be based on a careful assessment of a country’s needs, resulting from impartial monitoring and analysis of its human rights situation.

"The integrity and viability of the international human rights system as a whole is endangered by allowing an influential country such as China to be exempt from the rules agreed to for all," said Sophia Woodman, HRIC’s Research Director in Hong Kong. "The MOU should have included clear and unequivocal references to international human rights standards as the sole basis for addressing human rights issues. In addition, it hardly seems appropriate to sign an MOU when China has consistently failed to cooperate with the UN monitoring procedures or to abide by their recommendations."