China’s Perspective on the Relation of Sovereignty and Human Rights: the Practice and Reasons

China’s Perspective on the Relation of

      Sovereignty and Human Rights: the Practice and Reasons

   Sun Jingwen*

 

1. Introduction

Different from the western countries, Chinese perceive the contemporary world order in a sovereignty-bound thinking. As a result, Chinese government sees state sovereignty as the basis of human rights[1], which overweighs the human rights to some extent. This perspective has caused a veritable and arguable explosion of human rights discussion[2].

After the Second World War, the Unite Nations has made the protection of human rights one of the most important issues in modern international society. As a permanent member of UN, China has laid more and more emphasis on the promotion of human rights and has achieved a lot during the past decades. However, China is still criticized and doubted by both of the west and domestic dissidents for China’s unique thought on the relationship between sovereignty and human rights, and for facts of the diminishing but existing human rights violations.

In order to confront with pressures from outside and inside, we need to give a solid and impartial understanding of China’s opinion. In doing so, this presentation will concentrate on the practice of the promotion on human rights and reasons of having the unique thoughts on the relationship between sovereignty and human rights of the People’s Republic of China. Inevitably, it first will give a brief overview of conceptions of sovereignty and human rights, and contentions on the relationship between the two to give a background of the discourse.

 

1. An Overview of the Notions of Sovereignty and Human Rights
2. Human Rights Discourse

  It was not until the end of the Second World War, did human rights become a real essential international law topic. The UN Charter reiterated the basic human rights in its preface, and made it a principle for protecting and respecting human rights. The UN General Assembly passed the Universal Declaration of Human Rights in 1948, which enumerates human rights in detail. Up to now, the UN has formulated or passed about 70 treaties, declarations or other documents on human rights.[3] Nowadays, it has become quite a phenomenon that more and more states are eager to be perceived a positive role in promoting and protecting international human rights.[4]

Great progress as international society has achieved on the international law level, there are still numerous violations of human rights in practice，such as Rwandan Genocide, East Timor Massacre and so on. Although most sovereign states have attained the basic consensus of the need of protecting human rights, cultural diversities still lead to different understandings of the meanings of human rights. Within the context of cultural diversity, it is not surprising that states adhere to diverse often have contradictory perspectives on international human rights. Nor is it inconceivable that some nations place more emphasis on a certain category of rights than other nations, or that even for the same category of rights, different standards of protection may be applied.[5] Compared with the Western custom of liberalism and individualism, Chinese see collective welfare and social order as the basis of the protection of human rights. To sum up, Chinese talk about human rights in a larger and collective context.

Furthermore, different legal cultures give different solutions to the human rights problems. In common law countries, such as Canada or the United States, much of the human rights discourse may eventually find its way into the case law. In the civil law world, or in the hybrid legal cultures, such as European Union, the accessibility of formal constitutional or human rights discourse in judicial and administrative decisions can be made. However, the constitutional or human rights discourse may be more scattered and less formalized. Important statements may appear in international declarations, constitutions, legislations, white papers or so.[6]

 

2. Sovereignty Discourse

  Sovereignty is the supreme authority within a territory and the independent authority towards external affairs. It is a pivotal principle of modern international law. According to the Art.53 of the Vienna Convention on the Law of Treaties (1969), the principle of sovereignty can be said to be a ius cogens norm.

Moreover, international sovereignty is not only law-based, as described above; it is also a source of international law itself. And State sovereignty is not necessarily compatible with the authority of international law. It is only the case when the latter has legitimate authority.[7]

Though it is true that the dynamics of globalization have certainly contributed to the weakening of the principle of state sovereignty, it is far away from announcing the demise of sovereignty as some westerners believe. Some westerners hold the idea that the state sovereignty will never again enjoy the sanctity that once gave it pride of place among the principles of international order.[8] The development of the co-operation in the international society (e.g. the emergence of R2P) makes the principle of sovereignty is not as “absolute” as before, but the principle of sovereignty is still written in the UN Charter. There is no doubt that sovereignty is still a basic principle in international law.

What is extra worth mentioned is a group of conceptions of sovereignty: absolute sovereignty and limited sovereignty. The former one believes that sovereignty is not a matter of degree; it can be lost as in failed States or gained as in a newly independent State. While the latter one thinks that sovereignty cannot be regarded as ultimate because of the existence of inherent limitations. The conflict of these two conceptions preliminarily reveals the contention on the relation of sovereignty and human rights between the Westerners and the Chinese.

 

3. Contentions on China’s View of Sovereignty and Human Rights

China firmly believes that human rights are essentially matters within the domestic jurisdiction of a state. We hold that a human rights system must be established and safeguarded by each sovereign state though its domestic legislation.[9] That means in no way can any county use “human rights” as a tool to offend foreign countries or interfere with others’ domestic affairs. Our standpoint is consistent with the UN Charter and the consensus of The Five Principles of Peaceful Coexistence, of which the contents are: mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence.

However, China’s view on the relation of sovereignty and human rights has been criticized sharply by the west. They believe that sovereignty can only protect political autonomy when it exists in a normative sense; it cannot therefore be opposed to the legitimate authority of the international human right to have rights.[10] In this way, their most typical idea is that they can force so-called “humanitarian intervention” merely because of their explanation of “moral duty”. That means a coalition of states can intervene other countries without being authorized or ordered by the UN Security Council, and the most notorious case of it is the Iraq War.

In the eyes of some western scholars, Chinese government is struggling to isolate itself from international human rights practices and values[11]. The underlying logic of their opinion is that the western values and understandings of sovereignty and human rights are “common value” and even the “world value”. They have ignored that the common value is the consensus that sovereign states have attained, not all values the west holds. The Euro-centric epoch of international law has already gone, the respect and even tolerance towards other countries’ appropriate but dissenting opinion is a must in modern international society.

 

• The Practice on the Protection of Human Rights Under the Sovereignty-centered Context

The Chinese government has been trying to promote the human rights condition in a great effort. Up to 2011, the Chinese government has signed 27 treaties on human rights.[12] They are the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Relating to the Status of Refugees, the Protocol Relating to the Status of Refugees, Convention on the Rights of the Child, four 1949 Geneva conventions on combatants, prisoners and civilian persons in time of armed conflict and protocols additional to these conventions, ILO Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Remuneration for Men and Women Workers for Work of Equal Value, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of Persons with Disabilities, the Covenant on Civil and Political Rights, the Covenant on Economic, Social, and Cultural Rights and so on.

Furthermore, under the Chinese system, all valid international treaties on human rights which China has ratified or acceded become automatically valid in the Chinese legal order.[13] And China also concentrates more on the reformation of the law itself to meet the need of human rights protection.

For instance, China has put the principle of “respect and protect human rights” in the Constitution and Criminal Procedure Law (Art.2). To be specific, the principle of “respect and protect human rights” is the guide ideology of the 2012 reform of the criminal procedure law. The improvement of the evidence system and defense system, the forbidden of torture, the strength of supervision of investigation activities are the examples.[14]

To some extent, the relationship between sovereignty and human rights is the problem of the relation of the domestic law and treaties in practice. As mentioned above, the Chinese domestic courts can directly apply the treaties on human rights, which cover a considerable wide spectrum of activities. And where there is no existing enabling law (those provisions that are conflict with the treaties) to allow the direct application of the treaties. The international treaties play the role to supplement China’s legal obligations under the treaties that China has ratified (such as the reformation and formulation of law, or a batter explanation of the existing law). Our domestic court can play a positive role in human rights protection.

Thus, the Chinese Government’s view of “the protection of human rights is a domestic affair” is not an excuse to escape the responsibility to promote the human rights condition in China.

Still，we should admit that it is a long way for China to perfect its human rights condition. For example, we need to pursue the faithful application of the Chinese constitutional provisions concerning citizens’ rights and their safeguard their enjoyment by the public. If so, China would have no serious problem in the field of international human rights.[15]

But those deficiencies are not because of our sovereign-centric view; it is because of the heavy burden of our history and the complexity of the fact of our society. So the deficiencies themselves should not become the reason for the west to repudiate the rationality of China’s understanding of sovereignty and human rights; they are not the excuse for the west to interfere China’s own development, either.

Let’s re-examine the Five Principles of Peaceful Coexistence that embodies China’s viewpoint centrally. The key word of the Five Principles is “mutual”. What we want to emphasize is not the“absolute sovereignty”, but the mutual respect. China does not refuse the supervision of the international society，what we refused is the unfair interference.  Moreover, the Chinese government has always submitted white books of human rights and reports on the implementation of the related conventions.

 

1. The Reasons of China’s Perspective of Sovereignty and Human Rights

The core of the divergence between the Chinese and the West on the relation of sovereignty and human rights is the different understanding on the tem “sovereignty” and “human rights”. If we cannot find out the underlying reasons of why the Chinese hold a different idea, scarcely can we truly respect China’s choice. So in discussing China’s perspective on the relation of sovereignty and human rights, the unique history of building a modern country, the judicial culture and the necessity from the reality that may well have a direct and influential impact on the cause of China’s perspective should be particularly noticed.

 

1. The Unique Modern-nation-building History

  There were tremendous changes and turbulences in China’s modern history. Since the 1840 Opium War, China was forced to open to the western countries. And during a hundred years, China confronted with numerous intrusions, unfair treaties; the western powers never intended to apply international law to their relations with China in the same way.

During the lasting years of resisting with the west, China went through a historical transformation from the Sino-centralism based on Confucian culturalism into modern Chinese nationalism embracing the idea of sovereignty and independence.[16]China has struggled for a long time in achieving the acceptance and respect from other countries. For Chinese, the independent and equal status in the modern international society is hard-won which we treasured a lot.

From the traumatic history, Chinese realize the importance of keeping sovereignty and independence. Moreover, the heavy and unfair burden that the west has brought to China makes Chinese concentrate more on the interference from outside. So in the eyes of Chinese, international law is more relevant to protecting itself against foreign interference in its internal affairs and ensuing its normal relations with other nations than to enhancing individuals’ human rights at international level.[17]

 

2. The Development of Judicial Culture

Unlike Western nations, law in China was traditionally equated with coercion and was regard as an inferior means of affecting behavior[18]. So when there is another method that can help in promoting the human rights and solve the problem, the Chinese usually tend to refer to the new method rather than international law. If the human rights protection is more of a matter of domestic affair, the Chinese government will have a more flexible resolution in protecting human rights.

Though the Euro-centric epoch has gone, we cannot ignore the fact that modern international law originates from Europe. So the modern international law inevitably was deeply influenced by the west. Compared with westerners’ rich experience in using the international law and their far-reached influence in international law, China still lack enough law resource and confidence in using international law to deal with human rights problems.

Also, although China is one of the five permanent member states in the United Nations, the modern world and international law is still dominated by the developed west countries in most time. So the Chinese government has reasons to suspect the use of international law.

 

3. The Practical Necessity

  Two key words of China’s diplomatic policy are “peace” and “development” after China opened its door to the outside. The logic is simple. If China wants to develop economy smoothly and co-operate with other countries equally, it needs an independent outside environment. For china, the internal aspect of the concept of state sovereignty is of vital importance for today’s drastic social transformation in Chinese society. [19]That’s why China always followed a sovereignty-centered model under the mantle of the legitimizing principles of China’s independence and equality when confronting the human rights matters.

In the eyes of some western scholars, the notion of sovereignty, in its internal dimension, reflects the relationship between state and civil society or between political authority and the community. Furthermore, sovereignty is not a fact but is more correctly understood as a claim about the way political power is or should be exercised.[20] It is true that sovereignty is inevitable associate with politics. But China’s perspective of sovereignty and human rights does not imply that China wants to escape the responsibility to promote human rights protection or pursue the supremacy.

The Chinese Government always stress its fundamental point has never changed. The opening to the outside world and participation in global economic interdependence are thought as a cost-effective way of accelerating nation-enhancing and state –empowering march towards the promised land of modernity, rather than to any supranational world order.[21] So China’s sovereignty-centered perspective on the human rights matters and the viewpoint of “sovereignty is the supreme power” is just out of the necessity of China’s development necessity.

 

1. An Possible Explanation of China’s Perspective

The relationship between the sovereignty and human rights is quiet an arguable topic for the rich meanings of the two notions and the complicated reality. Though China’s perspective of the relation of sovereignty and human rights is different from the west, it should have a better and more moderate explanation in order to make the unique opinion easier to be accepted and understood.

  Once at the Vienna meeting the Chinese Delegation Head, Liu Huaqiu, articulated China’s views as follows:

….To wantonly accuse another country of abuse of human rights and impose the human rights criteria of one’s own country or region on other countries or regions are tantamount to an infringement upon the sovereignty of other countries and interference in the latter’s internal affairs, which could result in political instability and social unrest in other countries…. State sovereignty is the basis for the realization of citizens’ human rights. If the sovereignty of a state is not safeguard, the human rights of its citizens are out of the question, like a castle in the air….

Though the central theme of above-mentioned speech is just about our sovereignty-

centered perspective, however, it can be easily misunderstood and suspected. First, this speech can be seen as that we believe the totally “absolute sovereignty”, which means under no circumstance will we let the international society supervise or help us with the human rights development. Second, the reason for China to firmly hold the sovereignty-centered view on the matter of the relation between sovereignty and human rights is not merely because that sovereignty is the “basis” of human rights; when there is a large scale of humanitarian disaster such as genocide, this reason seems not to be convictive.

For China, the concentration on the sovereignty-centered idea in the relationship between sovereignty and human rights is not a claim of absolute supreme power in international relations but rather served as the legal limits, prescribing the statist parameters of world order.[22] So we should abandon the doctrine of absolute sovereignty. In China, sovereignty is meaningful only in terms of mutuality; that is the sovereignty of one state is restricted by that of others and the sovereignty of all states are equally respected by all.[23] Just as talked above, China just want to be mutually respected by the west during the process of promoting the human rights.

So the relationship between the sovereignty and human rights should better not be explained as the hierarchical one, namely “sovereignty is above the human rights” or vice versa. Those two notions are mostly parallel while overlap each other in a few cases.[24] We’d better explain the sovereignty as the limitations or the boundaries when protecting human rights. Also, the respect of others’ sovereignty is one of the premises to help others to promote the human rights conditions.

 

1. Conclusion

During the past decades, China has achieved a lot in the promotion of China’s human rights. But China’s unique sovereignty-centered perspective on the relation of the sovereignty and human rights caused numerous suspicions and criticisms from the west.

In this case, we need to combine with China’s particular history and reality to give a convictive understanding of our perspective. Also, we should realize that the best and the most radical method of solving the pressure from outside is to perfecting the human rights condition in China. In doing so, we will finally got the confidence to declare that we have obey the responsibility in protecting human rights and principles in international well; we will finally got the evidence to say that some of the westerners merely use human rights as an excuse to interfere other countries’ domestic affairs and even intrude them.

* The sophomore of Tsinghua Law School, Student Nunber:2012012856.

[1] See: Speech by Liu Huaqiu, Head of the Chinese Delegation at the World Conference on Human Rights(Vienna: Permanent Mission of the PRC to the United Nations in Vienna, 15 June 1993).

[2] Michael C. Davis, Chinese Perspectives on the Bangkok Declaration and the Development of Human Rights in Asia, 89 Am. Soc’y Int’l L. Proc. 157, 157 (1995).

[3] Wang Shuliang（王叔良），Luelun Guojia Zhuquan Yu Renquan de Guanxi（略论国家主权与人权的关系）[A Brief Review on the Relation of State Sovereignty and Human Rights], ZHENGZHI YU FALV（政治与法律）[POLTICS AND LAW] 51, 52（1995）.

[4] Anne F. Bayefsky, International Human Rights Law—Use in Canadian Charter of Rights and Freedom Litigation (1992).

[5] James Li, Cultural Relativity and the Role of Domestic Courts in the Enforcement of International Human Rights: A Survey of the Practice and Problems in China.

[6] Michael C. Davis, Chinese Perspectives on the Bangkok Declaration and the Development of Human Rights in Asia, 89 Am. Soc’y Int’l L. Proc. 157, 159 (1995).

[7] Samantha Besson, 2012 MAX Planck Institute for Comparative Public Law: Sovereignty 12-5 (Heidelberg and Oxford University Press 2012).

[8] Michael Jacobsen & Stephanie Lawson, Between Globalization and Localization: A Case Study of Human Rights Versus State Sovereignty, 5 Global Governance 203, 217 (1999).

[9] Li, supra note 5, at 22.

[10] Besson, supra note 7, at 18.

[11] Davis, supra note 6, at 158.

[12] Refer to official statics in Blue Book on China’s Human Rights No.1 (2011).

[13] Li, supra note 5, at 18.

[14] Huang Taiyun（黄太云），Xingshi Susong Fa Xiugai Shiyi（刑事诉讼法修改释义）[The Explanations on the Reform of Criminal Procedure Law], RENMIN JIANCHA（人民检察）[PEOPPLE’S PROCURATORIAL SEMIMONTHLY ] 10,12 (2012(08)).

[15] Li, supra note 5, at 31.

[16] Li Zhaojie, Legacy of Modern Chinese History: Its Relevance to the Chinese Perspective of the Contemporary International Legal Order, a speech delivered at Geneva Graduate Institute of International Studies (2004).

[17] Smauel S. Kim, The Development of International Law in Post-Mao China: Change and Continuity, 117 (1987).

[18] Li, supra note 16, at 14.

[19] Li, supra note 16,at 15.

[20] Cited in Camilleri and Falk, The End of Sovereignty, at 11.

[21] Li, supra note 15, at footnote 14.

[22] Li, supra note 16, at 14.

[23] Wang Tieya, International Law in China, No.ⅡCollected Courses of The Hague Academy of International Law，288 (1991).

[24] He Zhipeng（何志鹏），Guoji Fazhi Shiye Zhong de Renquan Yu Zhuquan（国际法治视野中的人权与主权）[The Human Rights and Sovereignty Under the View of International Law], Vol.9 WUDA GUOJIFA PINGLUN（武大国际法评论）[WUHAN UNI INTERNATIONAL LAW REVIEW] 130，154-55.