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Are human rights on China's WTO agenda?

June 26, 2002

Inside and outside China, much has been said and written about the impact of WTO entry on the lives of the country’s people. In this essay, Pitman B. Potter raises some questions about its potential to transform China’s legal system.

Many observers view China’s accession to the World Trade Organization (WTO) as adding further impetus to legal reform and human rights protection in the People’s Republic of China (PRC). In the light of the existing purposes and processes of China’s legal reform effort, however, changes associated with WTO may make little contribution to improving human rights protections for the most vulnerable elements of Chinese society.

WTO and the law reform agenda

China’s commitment to join the WTO and to abide by its requirements concerning transparency, national treatment, non-discrimination and other disciplines has been seen as supporting general policies of economic reform and opening up and advancing ongoing efforts at legal reform. The WTO’s transparency requirements may well encourage improvements in China’s administrative law system and the general processes and procedures for market regulation, as laws and regulations are made public and as the subjects of regulation gain greater access to the rule-making process. National treatment requirements have the potential to promote approaches to policymaking and regulation that eliminate double standards for foreign and domestic businesses. Similarly, the WTO’s non-discrimination provisions may encourage removal of political considerations from legal and regulatory enforcement.

Achieving these results is unlikely in the short term, however, due in part to the dynamic of “selective adaptation” that limits specific application of foreign legal norms in China, and due to limits on the capacity of China’s legal reform effort generally. Specific outcomes will depend on the extent to which China’s political leaders — and by extension the managers of the legal system — view WTO norms as furthering the underlying purposes of legal reform.

For in practice the purposes of particular aspects of legal reform have had a significant impact on the identity of participants and the outcomes of legal process. Where the focus of legal reform has been economic change, the legal actors of primary consequence have been “legal persons” (faren), comprised chiefly of state-owned enterprises, business operations (shiye) of government departments and private companies, whose access to legal institutions and processes is formally equal but in practice remains subject to political relationships and power disparities. Where the purposes of legal reform have centered on social relations in areas such as family law, inheritance, housing and employment, power disparities are more obvious, as government policy imperatives distort access to legal institutions and processes for marital partners; competitors for inheritance rights; landlords, tenants and homeowners; and job-seekers. Legal reform has also been aimed at strengthening the powers of the state, primarily through criminal law and administrative punishment regimes. Here, disparities of power between the state and the objects of its regulation are most acute, limiting access to justice and judicial process by the targets of state control.

The interplay between purpose and process in the Chinese legal system will have a significant impact on the effects of WTO accession. Where WTO disciplines reinforce existing priorities, WTO accession will likely have pronounced effects on legal reform. On the other hand, WTO accession is unlikely to advance legal reform in areas not bound to specific WTO rules, since the associated policy compromises by the Chinese regime would not be required.

Effects on human rights

Issues of complementarity will also determine the impact of China’s WTO accession on human rights protection. As WTO disciplines of transparency drive reforms in the area of market regulation, the beneficiaries will be concentrated in the local economy. WTO-driven legal reforms will also benefit foreign business actors, as norms of national treatment and non-discrimination gradually diminish the unequal treatment that has characterized foreign economic relations with China previously. Individual employees with sufficient technical skills to avoid inclusion in the undifferentiated mass of unskilled workers who currently staff China’s factories and farms may also benefit, as expanding business opportunities create more demands for their knowledge, and as increased labor mobility strengthens their bargaining position with potential employers.

In addition to legal reforms aimed at economic behavior, WTO accession will reinforce the Chinese government’s long-standing emphasis on maintaining social stability. In his December 5, 2001, speech outlining tasks for political-legal work, Politburo Politics and Law Committee Chair Luo Gan underscored the Party’s commitment to using the legal system to protect against worker unrest and social instability in the wake of WTO accession. Efforts to ameliorate economic hardships of displaced workers notwithstanding, the emphasis on social stability is unlikely to lead to legal reforms aimed at promoting broad social access to legal processes and institutions. WTO accession will also encourage centralization of political authority. As the central government assumes responsibility for ensuring local-level enforcement of WTO requirements, local initiative and policy diversity will suffer.

If the effect of WTO-driven legal reforms is indeed to privilege market actors, social stability and central government control, the potential for positive impacts on human rights protection for marginalized individuals and groups appears to be limited. Small business actors and individual entrepreneurs may find some protection in the principles of formal equality that inform WTO rules, although the experience in liberal democracies raises questions about the certainty of this outcome. But workers without the technical skills necessary to achieve a relative degree of bargaining parity with employers are unlikely to benefit from WTO-mandated legal reforms. The PRC Labor Law already subjects workers to significant political controls, both through Party - dominated unions and through weak negotiation and dispute settlement provisions. Absent market-driven mobility or wage supports, these workers are likely to be left to the mercy of efficiency - motivated employers. As the expanded competition — local and international — brought on by WTO makes controlling production costs an increasingly important element in business success, those fungible workers who are able to avoid lay-offs will likely see continued erosion in salaries and working conditions. In the agricultural sector, efficiency and cost-cutting imperatives driven by WTO accession are likely to make profit margins thinner for peasants wholly in control of productive assets, and salaries lower for farm employees.

WTO-driven policy imperatives focused on social stability and central government control are unlikely to support improvements in popular access to human rights protection. Combined efforts by legal institutions and public security forces to prevent social instability are likely to make worker-driven change difficult and dangerous, as indicated by the government’s response to worker demonstrations in the immediate pre-WTO period. As well, proponents of policy reform are unlikely to expand their reach — calls for legal reform in the areas of securities markets, environment and corruption, for example, have met with only tepid reception. At the local level, efforts by local governments to ameliorate declines in peasant/worker incomes and working conditions may face resistance from central government departments charged with WTO compliance.

Thus, the effects of WTO-driven legal reforms on human rights protection in China remain uncertain. As the hoped-for economic boom driven by WTO accession lifts a greater array of companies, employees and localities to higher levels of prosperity, the range of human rights beneficiaries may expand. However, achieving the levels of economic prosperity necessary to effect a broad distribution of benefits will take some time — by conservative estimates at least a decade. In the meantime, meaningful human rights protections for those marginalized by WTO accession may well remain elusive.

Monitoring the rights impact

Ensuring that WTO-driven legal reforms in China support an equitable distribution of benefits and privileges involves questions of political will, local legal culture and international monitoring. Official policy statements leading up to China’s accession indicate that the WTO is seen primarily as a vehicle for furthering economic reform and for confirming China’s return to international respectability. While issues of income distribution and local development may well be cited as reasons for failures to enforce WTO disciplines strictly, past experience suggests these concerns are not systematically incorporated into policy or law. Local political authorities have expressed little enthusiasm for legal reforms aimed at protecting the rights of people caught up in the criminal justice system, and reveal little long-term commitment to ensuring equitable distribution of WTO benefits. While commitments to poverty alleviation, local development and social justice are evident among some members of the academic and policy communities, government actions during the period leading up to WTO accession suggest instead an opportunistic approach that relegates human rights concerns to the realm of short-term political gain related to China’s international relations rather than sustainable long-term policy.

In the absence of long term commitments of political will and local legal culture in support of human rights protections, it is left to the international community to work constructively to promote equitable distribution of the benefits and privileges of China’s WTO accession. China’s performance of its WTO obligations is already the subject of formal monitoring processes under the WTO’s Trade Policy Review Mechanism and various member country initiatives, such as the US Congressional Executive Commission on China. Extending monitoring to the realm of human rights will also be needed to complement review of economic performance and legal compliance indicators. Ongoing research and analysis of objective conditions for human rights will be essential to understanding the effects of WTO accession. In addition, continued examination of the purposes and processes of WTO-driven legal reforms will reveal much about their potential for improving human rights protections. Monitoring the development of post-WTO policy priorities will help determine whether the evolving purposes of reform are attentive to human rights concerns, in addition to addressing the needs of transparency, national treatment and non-discrimination. Monitoring the identity and conduct of legal actors using WTO-driven legal reforms to advance their interests will help further understanding of the ways in which process dimensions of legal reform support human rights protections.

China’s accession to the WTO will undoubtedly support ongoing efforts at legal reform. However, the effects of this on human rights protection remain uncertain. As China’s legal reforms pursue compliance with WTO requirements, the international community has an opportunity to work constructively to advocate and support inclusion of human rights protections in the reform effort. Extending efforts to monitor China’s WTO compliance to the human rights realm will be an essential step in this process.

Selected References

  • William C. Alford and Yuanyuan Shen, “Limits of the Law in Addressing China’s Environmental Dilemma,” Stanford Environmental Law Journal vol. 16 no. 1 (January 1997).

  • “Do the ‘Haves’ Still Come Out Ahead?” Law & Society Review vol. 33 no. 4 (1999) (Special Issue).

  • Mark A. Groombridge and Claude E. Barfield, Tiger by the Tail: China and the World Trade Organization (Washington D.C.: American Enterprise Institute, 1999).

  • Alan Hunt, Explorations in Law and Society: Toward a Constitutive Theory of Law (London: Routledge, 1993).

  • Ronald Keith and Zhiqiu Lin, Law and Justice in China’s New Marketplace (New York: Palgrave, 2001).

  • Ann Kent, “China and the International Human Rights Regime: A Case Study of Multilateral Monitoring: 1989-1994,” Human Rights Quarterly, vol. 17 no. 1 (1995).

  • Stanley B. Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999).

  • Pitman B. Potter and Li Jianyong, “Regulating Labor Relations on China: The Challenge of Adapting to the Socialist Market Economy,” Les Cahiers de Droit (Universit□Laval Law Review) vol. 37 no. 3 (September 1996).

  • State Council Information Office of the P. R. of China, White Paper: Fifty Years of Progress in China’s Human Rights (February 2000).

  • Karen Turner, James V. Feinerman and Kent Guy, ed., The Limits of the Role of Law: Critical Reflections on China’s Legal Cultures (Seattle: University of Washington Press, 1999).

  • Zhu Sanzhu, Securities Regulation in China (Ardsley, N.Y.: Transnational Publishers, 2000).

Pitman B. Potter is the director of the Institute of Asian Research at the University of British Columbia and a professor of law at UBC Faculty of Law. His most recent book is The Chinese Legal System: Globalization and Local Legal Culture (London: Routledge, 2001).

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