[Joint House and Senate Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
THE UN HUMAN RIGHTS COUNCIL'S REVIEW OF CHINA'S RECORD: PROCESS AND
CHALLENGES
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ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JANUARY 16, 2009
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Printed for the use of the Congressional-Executive Commission on China
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C O N T E N T S
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Page
Opening statement of Charlotte Oldham-Moore, Staff Director,
Congressional-Executive Commission on China.................... 1
Gaer, Felice D., Director, the Jacob Blaustein Institute for the
Advancement of Human Rights and Chair, the U.S. Commission on
International Religious Freedom................................ 2
Feinerman, James V., Professor of Asian Legal Studies, Georgetown
University Law Center, Co-director, Asian Law and Policy
Studies Program................................................ 5
Li, Xiaorong, Senior Researcher, Institute for Philosophy and
Public Policy, University of Maryland.......................... 8
Bork, Ellen, Senior Program Manager, Freedom House............... 11
APPENDIX
Submission for the Record
Article from the New York Review of Books, entitled ``China's
Charter 08,'' translated by Perry Link, dated January 15, 2009,
submitted by Xiaorong Li....................................... 24
THE UN HUMAN RIGHTS COUNCIL'S REVIEW OF CHINA'S RECORD: PROCESS AND
CHALLENGES
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FRIDAY, JANUARY 16, 2009
Congressional-Executive
Commission on China,
Washington, DC.
The roundtable was convened, pursuant to notice, at 10:02
a.m., in room 628, Dirksen Senate Office Building, Charlotte
Oldham-Moore, Staff Director, presiding.
Also present: Douglas Grob, Cochairman's Senior Staff
Member; Steve Marshall, Senior Advisor and Prisoner Database
Program Director; Andrea Worden, General Counsel and Senior
Advisor on Criminal Justice; and Lawrence Liu, Senior Counsel.
OPENING STATEMENT OF CHARLOTTE OLDHAM-MOORE, STAFF DIRECTOR,
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Ms. Oldham-Moore. Good morning. I'm amazed at this turnout,
given this cold weather is more like Harbin's or Lhasa's and
not Washington, DC's. Thank you so much for coming.
My name is Charlotte Oldham-Moore. I'm Staff Director of
the Congressional-Executive Commission on China. I'm joined by
my colleague, Doug Grob, who is Staff Director to the
Cochairman.
This is the first event of the Commission in the 111th
Congress. The Commission is chaired by Senator Byron Dorgan,
and co-chaired by Representative Sander Levin.
For those of you who are new to the Commission's work, I
want to draw your attention to our 2008 Annual Report and also
to our Web site: www.cecc.gov, which is an invaluable resource
on China, and I urge you to visit it.
Today we will examine the UN Human Rights Council's
upcoming review on China's human rights record. We have a very
distinguished panel.
I will first introduce Ms. Felice Gaer. She is the Director
of the American Jewish Committee's Jacob Blaustein Institute
for the Advancement of Human Rights, and she is also the chair
of the U.S. Commission on International Religious Freedom. Jim
Feinerman is the James M. Morita Professor of Asian Legal
Studies at Georgetown University Law Center, where he is also
the co-director of Law Asia. He is a widely published expert on
Chinese law.
Dr. Xiaorong Li is a senior research scholar at the
Institute for Philosophy and Public Policy at the University of
Maryland, where she also teaches. Her primary research areas
are human rights, democratization, and civil society
development. She is the author of a book titled ``Ethics, Human
Rights, and Culture,'' and many articles.
Ellen Bork is the Senior Program Manager for Human Rights
at Freedom House. Before joining Freedom House, she was Deputy
Director of the Project for the New American Century. She is
widely published on China in the Washington Post, having done
op-eds in Washington Post, Financial Times, among others, and I
urge you to take a look at those pieces.
Ms. Gaer?
STATEMENT OF FELICE D. GAER, DIRECTOR, THE JACOB BLAUSTEIN
INSTITUTE FOR THE ADVANCEMENT OF HUMAN RIGHTS AND CHAIR, THE
U.S. COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM
Ms. Gaer. Thank you very much, and thank you for the
invitation to be here. I'm delighted that you're doing this.
The UN Commission on Human Rights has often addressed
country-specific issues. That Commission was mentioned in the
UN charter in 1945, the only subsidiary commission so
mentioned. The commission started out by never mentioning
countries, working only on identifying the norms of universal
human rights, but by the 1970s, it had begun to address some
country situations, and by the 1980s, there were visits to
countries and more.
After the events at Tiananmen in 1989, the UN Subcommission
on Human Rights adopted a resolution calling for an examination
of the situation and criticism of the government of China. That
went up to the Commission on Human Rights, and thereafter began
a rocky period. There were attempts to address the human rights
situation in China, and various countries stepped forward to
present a resolution but they were always met with what was
called a ``no-action motion.'' They were met with a lot of
opposition. This procedural ``no-action motion'' was only
defeated once, and that was in 1995. But even then, on a vote
on the substantive issue of human rights in China, Russia
changed its position. No surprise; it was in the midst of the
first Chechnya conflict.
This effort to try to address Chinese human rights by
virtue of a country-specific resolution in the Commission on
Human Rights continued apace. The United States often presented
a resolution alone because other countries that presented it
were harassed and suffered various kinds of sanctions, threats,
et cetera.
In the last years of Kofi Annan's Secretary Generalship at
the United Nations, he drew attention to the fact that the
Commission on Human Rights had become increasingly
dysfunctional, increasingly politicized, and that governments
were running to be members of this Commission in order to
protect themselves from criticism rather than to be there to
help advance human rights. That was his analysis.
As a result of this, there was a discussion to create a new
body to replace the Human Rights Commission. The original idea
was to upgrade it to create a Human Rights Council so there
would be a Security Council, an Economic and Social Council,
and a Human Rights Council, and these would have a certain
significance: security, development, human rights, the three
pillars of the UN.
What that Human Rights Council came to look like and how it
came to be created became a subject of intense negotiations.
But in that process a number of states decided that the most
important thing that they could do was to de-politicize the
Commission's atmosphere, and they thought the way to do this
would be to professionalize it with a process that didn't rely
on an annual resolution, but that instead relied on what they
then called peer review. Peer review is usually conducted by
peers and it is not uncommon in international organizations.
The World Trade Organization, the Organisation for Economic Co-
operation and Development, a variety of other international
organizations, the Organization of African Unity, all have peer
review procedures.
The idea was that this peer review would be universal, that
every state would be reviewed, and would be reviewed by their
peers, and that it would provide accountability, it would
provide transparency, it would not be selective--the claim that
only a few countries were being singled out wouldn't take
place--and that it would actually help assess human rights, and
that there would be followup. The intensive peer review
procedures that do take place in other international bodies
have followed that formula.
The problem is that in the negotiations to create a human
rights peer review in the United Nations, everything was up for
grabs. So there was an intense effort to simplify it. Instead
of restoring credibility, professionalism, and fair scrutiny to
the main UN Human Rights body, which was the original concept,
it seemed at times that this procedure was going to be
toothless.
And, in fact, the initial review procedures on other
countries consisted of so many states getting up and
complimenting countries for their adherence to human rights, or
their promises to adhere to human rights, that some of us in
the nongovernmental organization [NGO] community began to call
it not the Universal Periodic Review, but the Universal
Praising Review.
Now, the change in the word from ``peer review'' to
``periodic review'' clearly had as much to do with the bad
English of the members of the negotiation groups as it did with
the idea of moving away from having peers review peers. One of
the big controversies over this process was whether, in fact,
it would be an expert body or a body where countries examine
other countries. It's gone in the direction of countries
examining other countries because there's a parallel process in
all of the UN Human Rights treaty bodies, whereby independent
experts examine states on their human rights performance.
The Universal Periodic Review that is scheduled for China
is scheduled in a way that I believe shows that there is life,
and there is human rights after the Olympics. The Olympics were
scheduled to open on August 8, 2008, and the periodic review of
China is taking place on February 9, 2009, at 9 a.m., so
perhaps this sequence is deliberate, going from the 8s to the
9s, and I'm looking for somebody to tell me the significance of
that in Chinese orthography.
In any event, the way the process works, is that there are
three documents that a State presents. First, a State presents
its own report, or anything else it wants to hand in, as an
indication of what it has done. Second, the United Nations
Secretariat, in the High Commissioner's Office, prepares a
summary of what the UN procedures do and have said about that
country, what the treaty bodies have said, what the special
rapporteurs have said, and other UN bodies have said and
recommended.
And then, finally, the Secretariat summarizes the
information it received from stakeholders--stakeholders are
NGOs and anyone else appropriate. The original documentation
that is sent in by NGOs is posted on the Web site. It's an
extraordinary source of transparency.
The State's representatives come in for an interactive
dialogue and it takes three hours, so it will be from 9 a.m. to
12 noon on the 9th of February. The government speaks for half
an hour, the States ask questions. If you're a member State you
get three minutes, if you're not a member State you get two
minutes, and then the government concerned can respond, but
cannot speak for more than a total of an hour in the whole
three-hour period.
After this, the States can then make recommendations.
There's a working group. It negotiates recommendations. No one
has seen the negotiations, which are not transparent. The
recommendations have to have the approval of the government.
The State's representatives have to say ``yes, I accept that''
or ``I don't accept that,'' and then the whole thing gets
adopted--usually unanimously by the UN Human Rights Council.
There have been 48 of these reviews to date. There will be
192 by 2011. China is up for review now because it was a member
of the council, and the members were supposed to come first,
more or less. Like everything else in the UN, it was more or
less. What I would say is, we're not quite sure whether this
procedure is a foundation for the future or whether it's a
battle station. One NGO has asked if this is building
foundations or trenches? We're not sure. The point is, it's
very much at a beginning.
We have some lessons from the early stages of this
procedure with other countries, and I'll give you a really
quick rundown of what that has amounted to. China engages all
of the other countries. It asks questions. The questions are
almost always about economic and social rights, women's rights,
or children's rights.
Now and then they'll raise some other question. There have
not, however, been recommendations, by and large, that are
attributed to China, but China does ask questions. A question
can be as minimalist as, ``Oh, I see that you've promised to
ratify a treaty. What are you doing about it? '' Questions come
in all shapes and sizes. I think that the prospects in this
universal review will depend on the quality of the questions.
The documentation is good.
What needs to be done at this point in time, is that States
have to be convinced to ask serious questions. Because they are
government representatives standing up and asking the
questions, they have to have authority and approval from their
home governments. This requires a lot of advance planning. I'm
glad the CECC is looking into this question in terms of the
United States. The United States has been active in this aspect
of the Human Rights Council, unlike other areas.
Thank you.
Ms. Oldham-Moore. Thank you, Ms. Gaer, for providing us a
guide through this process.
Professor Feinerman, please.
STATEMENT OF JAMES V. FEINERMAN, PROFESSOR OF ASIAN LEGAL
STUDIES, GEORGETOWN UNIVERSITY LAW CENTER, CO-DIRECTOR, ASIAN
LAW AND POLICY STUDIES PROGRAM
Mr. Feinerman. Well, I'm grateful to Felice, particularly
for providing that overview of the Universal Periodic Review
[UPR] process, because I can go then into deep background and
some of the history as far as China is concerned, which is, I
think, the role I can best serve on this panel.
I have tried to divide my remarks up in four parts: a few
prefatory remarks, some discussion of the practice of the last
20 years or so before the UPR, then switch quickly to China and
the UPR process and what we might expect in the future, and
conclude.
But I just want to make a comment at the very beginning
about the importance of the ``universal'' part of the UPR. We
already heard about the ``periodic'' as opposed to ``praise''
part of the UPR. I think that a significant development--and
this is important in what I'm going to say about China's
practice up until the last couple of years or so since the
unfortunate events of June 1989 in and around Tiananmen
Square--is that China has finally come to accept the idea that
there are universal human rights and to use the discourse of
international human rights in a way that was not anticipated
before, say, 1991 or so.
I think that it's important that China now feels that there
is this universal system that it's a part of too, and it can't
go back to the old rhetoric of claiming that these are Western
ideas, that the idea of human rights isn't genuinely global or
universal, or that it's something that people outside of the
formative factions that created the UN Declaration of Human
Rights in the late 1940s can stand aside from and claim isn't
really of their creation.
Even then, I'm reminded of Ghandi's famous quip, when he
was asked about Western civilization. He said he thought it
would be a good idea. The implication was that Westerners
believe themselves already to be uniquely civilized, and the
rest of the world had to come along. China and the rest of the
world have come along with regard to international human
rights, and that's important.
But very quickly, to give you my prefatory remarks, I have
divided China's experience in the UN into three periods.
China--the People's Republic of China [PRC], that is--after
all, resumed the China seat in 1971. For the first 20 years of
the last 40 years, it was pretty much a non-participant in the
international human rights discourse, in the human rights
institutions of the UN. It began to take more of a role after
1980, as China became more of a participant in the
international community generally.
But I think it really was the shock of being censured by
various UN-related bodies that had a human rights mandate after
Tiananmen in 1990 and 1991 that somewhat shocked China into
realizing that it wasn't going to be able to rely on the old
shibboleths--that this was unwarranted interference in China's
internal affairs--and that there were consequences, some of
them quite embarrassing and problematic, for the PRC Government
in not playing on the human rights field. So, it began to
participate.
Some might say that this is not necessarily a good thing.
It also has some bad aspects in that, as a more involved
participant, China wants to be part of the making of the
standards and the rules. As, I think Felice Gaer has already
suggested, it can be part of a large coalition that waters them
down and makes them less powerful, less meaningful for the
global community than they would be if countries that were
somewhat more committed to the ideal standards of human rights
were left alone to develop the standards on their own.
But it's the trade-off for having China as a full
participant, along with other countries that have had human
rights problems in their past, to get them into the tent, and I
think it's worth the bargain.
So for the last 20 years or so, I think that China has been
a participant. It's important because, to move on to that area,
I think it's significant to note that China has been involved
in both responding to criticisms of Chinese practices in the
human rights area. There's a very useful book that is now
unfortunately about 10 years old, but still one of the best
things on China's human rights diplomacy in the UN by Ann Kent,
that talks particularly about China's stance with regard to
things like the Convention Against Torture, where--shades of
the Bush Administration--it is basically argued that there is a
question of definition about ``torture.''
What it is claimed that China is doing, what NGOs
especially claim that the Chinese are doing is torture, doesn't
fit the definition of ``torture,'' at least as it exists in the
Chinese criminal code, and therefore China can't be held up for
violating that standard.
This is true as well with the International Labor
Organization [ILO] and international labor standards, where
it's somewhat embarrassing for China claiming to be a Socialist
country with a Communist Party that's the vanguard of the
proletariat for the largest population in the world, for China
to be targeted as violating fundamental standards of
international labor rights and being censured by the ILO and
some related international labor rights bodies.
I think what Ann Kent's study proved, and this still tends
to be Chinese practice up to today, is that China has learned
to play the game. It's learned to criticize in the forms of the
standard discourse. But on the other hand, it hasn't really
internalized the standards that most would agree are the spirit
behind these international agreements.
It is engaging somewhat in a kind of persiflage, where it
argues about what the definition of torture is, whether or not
these labor right standards are in fact universal, whether
there are other elements of China's economic, cultural, and
social rights which better protect the interests of workers
than the standards that are proposed by those who are reading
more carefully the international labor rights documents.
So to get us up to the UPR and what it promises for China,
I guess there are three questions that I would ask us to think
about. One, is whether the Human Rights Council, as it's now
constituted and transformed from the previous Commission and
Subcommission on Human Rights, is genuinely an improvement and
promises to do better than the old system did in the United
Nations. As I've already indicated, I rather like it on the
score of universality.
But I think that the experience of countries, going back to
almost the founding days of the United Nations, who were able
to twist the standards of human rights and use, for example,
the United States' non-signature of various international human
rights standards against us. Where we would say that we were
just taking seriously the implications of implementation and
compliance if we
actually did accede to these agreements, the former Soviet
Union, for example, was perfectly happy to sign them all and
then tweak the United States for not having signed the
documents that it was itself honoring in the breach.
So, we need to think about whether this is going to make a
significant difference, a genuine improvement in the enjoyment
of human rights as opposed to just a lot of legal hair-
splitting as to whether or not we've signed an agreement and
whether the agreement is being properly implemented under the
standards that most people would recognize.
I think also we need to worry about this question of peer
review and what other nations perceive as their peers. It's
interesting that China, which has done a review already of
India, pulled its punches with regard to its closest peer, at
least in terms of population, complexity, and a series of human
rights issues that are on the table there, partly out of a
sense that there's a kind of honor among thieves, and that
we'll do this for you and you'll do that for us, and this is
the standard that we can now expect in this process of peer
review.
It may be that not only China, but the United States and
other major countries really see themselves as having no peers
that can effectively criticize them, no matter what they or
this UPR process produces. I'm reminded that when I was an
undergraduate at Yale then-President Kingman Brewster was asked
by a news commentator about his peers in Cambridge, and he
seemed to ignore the question. So the questioner pressed him
again and said, ``Your peers in Cambridge, President Brewster?
'' And he looked at him and said, ``We have no peers in
Cambridge,'' which may show a kind of Ivy-League hauteur. But I
think that there are implications as well in the international
community for powerful nations that really feel they have no
peers, at least no peers that could meaningfully do anything to
them or sanction them.
Finally, I would just worry about--and I know that Felice
and her counterparts are in the forefront ofthis--the real
ability of NGOs, as opposed to governments, to have a serious
impact on the process. I'm a big fan of what they do, and I
think it's absolutely necessary to get the information out and
to have it be as transparent as it is in this new process.
But ultimately we want to be able to do something. We want
to be able to have an impact on the actual enjoyment of human
rights on the ground. I have no magic wand; I don't believe the
NGOs have been able to produce one either. The meaningfulness
even of government-to-government sanctions seemed to be fairly
limited, if we just look at the United States' own experience
in trying to bring other nations into line on human rights. So,
I'm worried.
The last thing I would mention before I conclude is that I
think it's also worth noting, and I published a recent op-ed
piece in the Washington Post which I think is going to be
provided as part of the material for this hearing, that says
that in the last four or five years, one of the things that I
think needs to be noted in this process is a real retrogression
in the enjoyment of human rights in China.
I've been coming here to the Hill now for almost 20 years,
since the early 1990s, and in hearing after hearing, saying
that even though there are still problems with human rights in
China, the major fact that we need to take note of--and give
the Chinese Government some credit for--is that more people in
China enjoy more human rights than they have at any time
previously in Chinese history.
I think since about 2002 or 2003, that's not true any more.
I'd actually key it somewhat to the accession of Hu Jintao and
Wen Jiabao and the transition from the Jiang Zemin and the Zhu
Rongji regime previously. I think that it's something that
really is quite shocking, if we look at what's happened to
legal defenders, for example--and I mean not only lawyers, but
other people who are trying to protect the individual rights of
Chinese citizens. I think it's shocking, if you look at what's
happened in the area of religious freedom, which I know is a
big concern to members of this panel. I think it's shocking as
well in terms of the bald-facedness with which China is willing
to stand up and announce that it is doing these things, and
what can the rest of the world do about it?
There is a story just in today's New York Times about the
punishment of someone who was trying to make a protest during
the Olympics, and the dire consequences that he suffered in
following the rules that the Chinese Government itself set down
for doing a legitimate government-sanctioned protest during the
Olympics. If you can't even play by the rules and hope to
escape punishment, it suggests that things have seriously
deteriorated.
So in conclusion, I would say that I really want to worry a
bit more about what the process is going to provide at the end
of it. I agree that it's important to do it. I'm glad that it
promises a greater universality and that China is going to be
an early participant in both ways in the process, as an object
of study and as a participant in the studies of other nations.
But I think that we want to keep our eye on the ball and
see what it actually does in terms of enhancing the enjoyment
of human rights in China, which had been proceeding apace
pretty well, or as well as could be expected, for decades, up
until the last few years.
Ms. Oldham-Moore. Thank you, Professor Feinerman, for those
insightful remarks.
Now we're going to turn to Ms. Xiaorong Li, please.
STATEMENT OF XIAORONG LI, SENIOR RESEARCHER, INSTITUTE FOR
PHILOSOPHY AND PUBLIC POLICY, UNIVERSITY OF MARYLAND
Ms. Li. Thank you for this opportunity to address issues
related to the upcoming UN Human Rights Council's [HRC]
Universal Periodical Review [UPR] on China. As the previous
speaker, Ms. Gaer, has expertly described, the UPR is a brand
new, thus very little known UN human rights tool. For an
organization like the UN, the establishment of UPR is
remarkable. Only a few years ago, it would have been
unimaginable to put China under international spotlight to
scrutinize its human rights record in a comprehensive manner.
Since 1989, almost every year, China had successfully blocked
any vote on motions at the now-demised UN Human Rights
Commission to put on its agenda to examine China's human rights
behavior! This once seemingly insurmountable hurdle now
suddenly vanished!
However, UPR can be abused by UN member states, especially
those who are unfriendly to human rights and the process can be
highly politicized, its effectiveness minimized. The UN is an
inter-governmental organization, where member states lobby,
bargain, and position themselves to advance their own national
interest. China in particular has demonstrated its skillfulness
to mount impressive efforts to lobby its ``friendly'' countries
at UN venues.
Some common tactics that member states have used to
undermine UPR in order to prevent a critical report on their
performance are: (1) using ``national human rights
institutions'' and government-organized ``non-government
organizations'' [GONGOs] to submit rosy reports to dilute the
10-page compilation by the Office of the High Commissioner for
Human Rights [OHCHR] of stakeholders' submissions; (2) filling
the 3-hour ``interactive dialogue'' with praises or irrelevant
remarks by delegations from ``friendly'' countries; (3) using
the opportunity for state party response to dismiss critical
questions or independent NGO submissions as ``slandering'' or
``fabrications.''
So why does China bother to buy into UPR or become a member
of the HRC? That is a much larger question than I could address
here. There are some interesting hypotheses on the table: (1)
China wants to be treated as a member in good standing in the
international community; China could not have opposed UPR while
keeping a straight face because, when China rebutted critics of
its human rights, it has accused them to be ``selectively
targeting China'' or ``politicizing human rights''; UPR applies
to all countries. If you look at China's National Report, it
refers to its own position on human rights as based on ``equal
respect,'' ``fairness,'' ``objectivity, non-selectiveness'';
(2) UPR has been structured in such a way that the pain for a
state to undergo it is minimized, a point that I will come back
to soon.
China's own ``National Report'' to the UPR Working Group is
a typical affair. It follows a pattern, as we have seen in
China's reports to the Committee Against Torture or the
Committee on Economic, Social, Cultural Rights, by presenting a
positive assessment of its ``great progress,'' reiterating its
commitment to promoting human rights, and highlighting
legislative and regulatory steps, while glossing over ongoing
violations and omitting the fact that many good-sounding laws
are impossible to implement and officials who failed to
implement them face little consequence.
One way to reduce UPR's vulnerability to politicization and
abuse is to facilitate active participation of civil society,
or NGOs. One remarkable thing about UPR is its built-in
openness, no matter how limited, for civil society
intervention. To sufficiently explore the opportunity is the
only way available to make UPR have any impact. So when the
schedule to review China was set, the UPR Working Group called
for NGO submissions last summer. Forty-six ``stakeholders''--
national human rights institutions and supposedly NGOs--
submitted reports, each restricted to five pages. The UN OHCHR
has compiled a file summarizing ``credible and reliable''
information from stakeholder's submissions.
Other than national human rights institutions, there are at
least three types of organizations on the list: International
NGOs, including Chinese, Tibet, and Falun Gong groups overseas,
Chinese--including Hong Kong--NGOs, and GONGOs. Two things are
interesting: (1) Most of the groups from China are GONGOs, with
few exceptions. The GONGO reports generally present
``progress'' and recommend legislations that are already being
drafted or proposed. (2) Groups that working on children,
women, migrants, or HIV/AIDS did make submissions. Yes, there
is no independent human rights NGOs like Amnesty International
or Human Rights Watch from the mainland who made submissions,
though some loose networks of activists/dissidents participated
in the submissions with international groups.
The missing of Chinese domestic, openly operating, or
``legally registered'' human rights NGOs has to do with
restrictive regulations and official crackdowns on independent
NGOs.
So we can be almost certain, no mainland Chinese human
rights activist will attend the UPR session in Geneva in
February, even though they might be invited to go by
international NGOs. There is the risk factor: fear of being
intercepted on the way out or retaliated against going back--
one activist was recently interrogated several times, his home
was raided and personal belongings confiscated. The policemen
said they acted on the order from above to do anything to stop
anyone from preparing a human rights report for the UPR. But
additionally, there are also obstacles such as travel costs,
and UN Economic and Social Council [ECOSOC] accreditation, even
for any legally registered groups.
Ironically, problems such as restriction on freedom of
association, assembly, and speech, which the UPR is intended to
examine and, hopefully, find solutions, play a key role in
undermining UPR, diminishing its impact.
Another way to make UPR work is that human rights-friendly
member states should actively participate. The three-hour
``interactive dialogue'' on February 9--from 9 a.m. to 12
noon--is open to all 192 countries--for example, the United
States is not an HRC member, but can participate. The February
11 session is when the record of the State reviews are
considered, which lasts for 30 minutes--12-12:30--where China
can respond or reject some recommendations. Then, there is an
HRC plenary session several months later where the report is
adopted. Only NGOs with ECOSOC accreditation can attend these
sessions and can make statements only in the HRC session.
It is important to get into the final report of the UPR
working group a concrete list of substantive recommendations
with measurable results. This document will go in the record as
a testimony to China's delivery after it has made pledges to
promote human rights and signed numerous treaties, covenants,
and declarations on protecting human rights. All stakeholders
in the next four years can refer to this document as a
yardstick to measure any progress China may or may not make.
China will be in an awkward position to denounce such a
document as ``interference in its internal affairs'' by ``anti-
China forces'' with ``ulterior motivations''--because China has
gone through the process and participated in setting the rules
and in reviews of other state parties. It can't quite dismiss
the process as ``selective'' or ``unfair.''
What could the U.S. delegation or any other human rights-
friendly countries do in the UPR process? The United States is
not a member of HRC, but has observer's status.
They can prepare one good question about an area of serious
rights abuses and make one substantive but feasible
recommendation.
For instance, given the importance of free speech as a
fundamental human right, the U.S. permanent delegation could
ask the question about the detention and harassment of
signatories of Charter 08, who merely exercised their freedom
of expression by endorsing a declaration on human rights and
democracy. Ask for the release of detained signatory writer/
intellectual Liu Xiaobo on suspicion of ``inciting subversion
against the state,'' which is a crime frequently used in China
to persecute free speech.
The U.S. delegation could recommend that China release Liu
Xiaobo, and, for the longterm protection of free expression, to
clarify and precisely define the meaning of the terms
``incitement,'' ``subversion,'' and ``state power'' in Article
105(2) of the Chinese Criminal Code as well as the specific
conditions under which a peaceful act of expression may
constitute ``inciting subversion against state power.'' Such
conditions must explicitly exclude any non-violent activity in
the exercise of the right to freedom of expression, including
expressions critical of political parties and government
authorities.
In connection to this last point, I should mention that I'd
like to submit the English translation of Charter 08 by Perry
Link that appeared in New York Review of Books for the record.
Thank you.
Ms. Oldham-Moore. Thank you. We will include the
translation into the official transcript. And thank you so much
for your remarks.
Ms. Bork, please begin.
[The Charter 08 translation appears in the appendix.]
STATEMENT OF ELLEN BORK, SENIOR PROGRAM MANAGER, FREEDOM HOUSE
Ms. Bork. Hello, everybody. I'm glad that Xiaorong finished
her remarks by mentioning Charter 08, which I'm going to
develop further for discussion with all of you.
But, first, I just want to mention Freedom House's position
in general on the UPR, which for very much the same detailed
and substantive reasons that my colleagues have given here, is
a very mixed one. We are generally supportive of engaging in
the process, and view it as not inherently flawed, but lacking
real political commitment from countries that could make it
more meaningful.
In this connection also, Freedom House is on the verge of
releasing its annual Freedom in the World survey. You won't be
surprised to find out that China does not come out very well in
that survey of civil and political rights. In the preview
that's been released, Freedom House notes that of all the
people in the world who are assessed as being not free, half of
them live in China.
In the past year's review, special note is taken of the
crackdown on Internet journalists and bloggers, restrictions on
lawyers, the arrests of various dissidents, including Hu Jia,
the crackdown in Tibet, and also Charter 08, which came at the
very end of the year, and which ought to be viewed as a very
positive development that the democratic world can respond to.
I was invited to join this discussion because I have been
interested very much not only in Chinese dissidents, but also
the inspiration Charter 08 drew from Charter 77, the dissident
initiative in the former Czechoslovakia.
As Xiaorong mentioned, Perry Link translated it in the New
York Review of Books. In his preface, he noted that through his
acquaintanceship with many Charter 08 signers, he was aware of
their ``conscious admiration'' for Charter 77. In fact, you may
have seen that within several days of Charter 08's publication,
Vaclav Havel himself, one of the founders of Charter 77,
published an article in the Wall Street Journal, acknowledging
this connection and seeking to mobilize support for Charter 08.
This issue of the relationship between Chinese dissent and
dissent under the former Soviet Union, and the influence each
has had ought to be developed thoroughly as it holds a lot of
useful lessons.
For example, I think you are all aware that Fang Lizhi is
known as the ``Chinese Sakharov.'' These echoes are very
important, not least because so many Americans look at Soviet
dissent as the model of dissent. Also, the American response to
Soviet dissent shapes our views of what governments can do, and
also I would say what non-governmental actors can do.
Looking back at that era as a sort of model, it's easy to
forget that it wasn't always so clear that the United States
would lead other free countries in support of Soviet
dissidents.
In fact, the Helsinki Accords, which we often look at as a
great lever, were not intended to impose or encourage human
rights standards. The Accords themselves were designed to
confirm the Soviet Union's post-war borders. The human rights
components were something of an afterthought. In fact, it was
several European countries that made a nuisance of themselves
and insisted on the so-called ``third basket'' of human rights
provisions. American leadership at the time was not especially
open to this, that is Secretary of State Henry Kissinger and
President Ford himself. Although I think I recall that
President Ford later thanked people for forcing him into
accepting these as a condition of the Accords and approving,
ultimately, the establishment of the U.S. Helsinki Commission.
So the United States, as a government, was not the first or
the staunchest source of support for using the Helsinki Accords
or for pressuring the Soviet Union and Soviet bloc countries on
human rights.
Instead, the strongest leadership in this regard came from
private and independent people, like Jeri Laber at Helsinki
Watch, and Lane Kirkland, head of the AFL-CIO who led the labor
movement in playing such a vital role in supporting the
Solidarity trade union movement. When official U.S. support was
not forthcoming, Kirkland pushed ahead himself and led the
labor movement to provide support.
Many of us here today are part of a community that intends
to bring about just such pressure on China to make progress on
human rights. Yet we don't see, frankly, the fruit of our
efforts in the way we'd like. So I've come to the conclusion
really, and I think it's a fairly obvious one, that there is
something else that has to change in the way China is viewed
and treated in foreign policy. Again, my colleagues here, we
all certainly have a view that the UPR and other mechanisms
should lead to these things, but the question remains why they
don't.
At this late date, our official concept of the way China
should evolve is based on the notion of ``engagement'' and the
belief in inevitable progress through economic development,
top-down reform, and the belief that Chinese leaders will come
to see reform as in their interests. Here again, the Soviet era
provides a lesson and a model. Although U.S. policy toward the
Soviet Union moved from one of detente to one that viewed the
Soviet Communism as untenable, in China same thing has not
happened.
Ms. Oldham-Moore. The first question will be offered by
Andrea Worden, who is our General Counsel at the Commission,
and Senior Advisor on criminal justice issues.
Ms. Worden. I'm Andrea Worden, General Counsel of the CECC.
The question I would like to ask is directed to Ms. Gaer.
Ms. Gaer, you are the vice chair of the UN Committee
Against Torture. In November of last year, the committee
reviewed China's compliance with the Convention Against
Torture. Based on your recent experience with the Chinese
Government during that review, what should we expect from China
during the upcoming Universal Periodic Review?
Ms. Gaer. What an interesting question. The government of
China participated fully in the review of the Committee Against
Torture [CAT]. We provided a list of questions initially, to
which they responded. We asked a lot of points of law and
questions of fact, particularly raising a lot of specific
cases, on the assumption that cases are what tells you whether
the law works. We received a lot of information about the law.
Unfortunately, we were told nothing different than what has
been reported in the media about the cases. We raised three
over-arching issues from the beginning. We have an oral
question-and-answer process as well, and we raised some
questions about how the State Secrets Act had influenced the
information we were given, because we were given so little
information on so many important questions that we asked. We
were never told that the reason was the State Secrets Act, but
we were trying to see if perhaps that was or was not the
reason. We concluded that that was a problem.
But we got full responses, and we got a great deal of
courtesy. China brought a large delegation, headed by a high
official and representatives of a wide range of Chinese
Government bodies. That same pattern is what you will see at
the UPR. All the countries that have been examined at the UPR
so far have come in with reports on time, they've come in with
prominent heads of delegations, often ministers, and with
sizable delegations. No one has requested a delay of the
review. So you'll see them at the UPR, on time, and they will
respond as expected.
Now, what also happened was that we also got responses. But
again, some of those responses were less than we would have
liked. When we asked for information about what had happened in
Tibet--I personally gave the head of the delegation an NGO list
of an alleged 800 persons who are missing--he promised to get
information for us. It never came. We asked a second time, but
although he promised, it never came. We produced our
conclusions without it.
We concluded that information was a big part of the problem
but we did not hesitate to draw attention to cases. We thought
that that was perhaps the best way to ensure that the process
has some followup, because that's the best way to see what
happens.
So, at the UPR there will be a high-level group. They will
follow all the procedures that Jim Feinerman talked about, and
the only question is whether it will provide any new
information on important cases or not. In the end, when we got
an oral response on Tibet from the government, it was the local
official responsible for Minority Affairs who made a response.
It was a strident response, not a helpful response. It had a
lot of those words that are so familiar from the media.
Similarly, I asked a lot of questions. Article 3 of the
Torture Convention deals with non-refoulement, non-return to
torture. Anybody who faces a risk of torture is not to be
returned. They're to be dealt with in the country where they're
being held.
I asked about North Koreans crossing into China, large
numbers of whom are reported returned and subjected to torture
and other forms of ill treatment. The government responded by
saying there were no refugees from North Korea although there
are ``illegals.'' These were the usual explanations. But in the
written response to the CAT, the government went so far as to
say, and the people who deal with them are ``snakeheads.''
Now, this is not a term that we at the committee are
familiar with or accustomed to, and I did not think that it
helped the discussion. So there will be moments where there
will be real engagement and there will be moments that will not
reach it, and we
experience both.
Ms. Oldham-Moore. Thank you. Thank you very much.
Now I turn to the audience, please. Anybody who would like
to ask a question? Yes. Please stand. Thank you.
Ms. Star. I'm Penny Star with CNS News. I'm wondering, I'm
trying to wrap my head around how this works and what the U.S.
representatives, whether they're government or NGO, are asking
about specific reforms or what they want to see done about
human rights abuses in China. The two I have in mind are in the
population planning, forced abortions, and also religious
persecution and people who are arrested, killed, or disappear
for those two things. I wondered how the United States is going
to address that in this review.
Ms. Oldham-Moore. Great. Thank you very much. Jim
Feinerman, do you want to take a shot at that?
Mr. Feinerman. Well, I'll take a stab at a start. I think
that these are two issues that, again, depending on the
administration here in Washington, may be addressed somewhat
differently. I think certainly for the Republican
administrations of the last 30 years, forced abortion has been
a real flash point and something that they've been very
seriously concerned about. I think it's offensive to anyone,
Democratic or Republican, and a real problem of China's
population planning.
But here is where you see the stock responses brought up,
that this is China's way of dealing with an internal matter
that China has to address before it can address any other human
rights issue, and it gets back to a long-running debate about
whether economic, social, and cultural rights trump civil and
political rights and what China needs to address first in terms
of all the human rights of the entire China polity. It gets
into collective versus individual rights. I don't know how far
this is going to be pressed, either by the Obama Administration
or by other nations as well, who seem to be rather
uncomfortable with the idea of taking this on.
As far as religious freedom is concerned, this is something
that I think has greater traction and is something that a wide
range of not only U.S. administrations, but foreign governments
outside of China are also willing to address. The sticky issue
there becomes this definition of what is ``religion,'' for
purposes of protecting religious freedom.
Of course, the Falun Gong movement is one of the prime
issues there because, whether or not you characterize Falun
Gong as religious practice, there's an argument that torture,
illegal detention, even extra-judicial killing that's happened
in some cases, can't be countenanced whether or not it's a
violation of their religious freedom or just violation of other
basic non-derogable human rights.
I think there the United States should be in the forefront
of speaking out about it, both as a religious freedom matter,
but also defending the bare minimum of those non-derogable
rights that we, as a nation that professes to protect the civil
and political rights of our citizens, care about them and the
rest of the world, really wants to make an issue.
Ms. Oldham-Moore. Yes. Thank you. A quick followup.
Ms. Star. What did you say about taking on the subject of
forced abortion? I'm not sure I----
Mr. Feinerman. Yes. I think that there's an argument that
people who are generally pro-choice want to be careful or
cautious about the issue of whether or not China's policy is
coercive in that they don't want to be put in a position of
seeming to oppose freedom of choice with regard to abortion by
opposing something that clearly crosses the line and is a human
rights violation in China, but might become a more explosive
issue in the Choice versus Right to Life debate.
The Chinese, I think, have capitalized on this. They've
realized that they can turn the arguments that people make
about women's rights in other countries around the world with
respect to a right to choice in regard to abortion against
people who criticize China for something that, whether you're a
proponent of Right to Life or Right to Choice, clearly seems to
me to be irrespective of your views about abortion, of course
of violation of human rights.
Ms. Oldham-Moore. Okay. Thank you.
Next question. Dr. Brettell?
Ms. Brettell. My question relates to--I have several
questions, actually.
Ms. Oldham-Moore. One question.
Ms. Brettell. One question?
Ms. Oldham-Moore. One question.
Ms. Brettell. Oh, gosh. Okay. Has the official Chinese
definition of torture changed over time and as a result of
interaction with the international human rights community?
Ms. Gaer. Well, I would say that the definition has changed
little, but there is a recognition of torture and ill
treatment. There's a lot of activity that's been carried out by
the Chinese Government to criminalize torture and to train
officials in the prohibition, because of the publicity that it
has garnered inside and outside the country. In that context,
the Committee Against Torture has continued to draw attention
to the fact that the official Chinese definition does not meet
the UN definition, that it's still about confession and
coercion in detention only.
So if you're on the way to detention, and things that have
happened in Tibet and so forth may not fall within that
definition, and in that context, if I may take the opportunity
just to comment on Professor Feinerman's remarks, I am fiercely
pro-choice and I have never hesitated to bring up the issue of
the violence and coercion associated with China's population
policy.
You will see that issue, articulated in that way, has been
raised by the UN Committee on the Elimination of Discrimination
Against Women, by the Committee Against Torture in 2000 when I
was first a member, by the Committee Against Torture last
November. Again, it falls elsewhere. It's not a problem.
Ms. Brettell. Is it clear we'll see it as----
Ms. Gaer. The violence and the coercion associated with it
establish it not only as a human rights violation, but it would
fit into definitions of torture.
Ms. Oldham-Moore. Okay.
Xiaorong, did you want to comment on this?
Ms. Li. On the abortion issue, I can also say myself, I am
fiercely pro-Choice. But I've been comfortable to speak up
against forced abortion in China and have written a Law Review
article called ``License To Coerce,'' which is precisely about
this issue.
About the definition of torture, China has come a long way,
as Felice and Jim pointed out. There are two problems with
China's definition of torture. One, is a restriction of
``torture'' to physical assault and mistreatment, but a lot of
torture going on in China is not active assault or only mental
or psychological.
For example, exposed to cold for long periods of time,
turning on the air conditioning in full blasts, and also making
somebody sit on a very short, low stool for very long hours at
a time. Also, the use of threats, intimidation, saying if you
continue with this or that activity your family members might
suffer, or you might lose your job. Also, police use the threat
of violence against you or your family by unidentified/plain-
clothed men.
The other limitation is to restrict ``torture'' to acts of
torture committed by law enforcement officers or prison guards,
with a narrow focus on officials in the criminal system. But
there's this broad range of government officials who are
involved in the use of violence and torture, for example, city
management officials [chengguan], or CCP party functionaries
who lock up and beat up their own members for ``corruption'' or
committing other wrongs in official facilities [shuang gui] or
government officials in charge of receiving complaint letters
and visitors [xin fang department officials].
Ms. Oldham-Moore. Jim, you wanted to add something?
Mr. Feinerman. Yes. A point about torture, since I brought
it up in my own remarks. I think that I want to underscore the
point that Xiaorong was just making, that the definition that's
contained in China's criminal law, and there are really only
two provisions of the criminal law that address this, pretty
clearly limit the Chinese idea of torture solely to physical
punishment that takes place when people are detained in the
official criminal process. So the list leaves out a wide range
of things. It leaves out everything that isn't specifically
physical torture. Any kind of mental torture that doesn't have
a physical manifestation is not contained in the Chinese
definition of torture.
More important, this limitation to those who are being
criminally detained in the official process means that people
who are subject, for example, to police detention outside of
the formal criminal process aren't covered by the definition
that's in the formal criminal law.
As I think the last few remarks Xiaorong was making made
abundantly clear, this is something that happens more often
than not. It's a very tiny minority. It's the molehill, the tip
of the iceberg of the cases that are actually in the formal
criminal process. The vast majority of things happen outside
their formal criminal process, and there the gloves are off.
There, there are no limits on the kind of activities that can
be carried out. You won't be criminally prosecuted. You won't
have violated China's criminal law in those cases.
Ms. Oldham-Moore. Thank you.
Anybody from the audience, question? Yes. Lawrence, please.
Lawrence Liu.
Mr. Liu. Yes. I wanted to ask about, you mentioned a
followup on that portion of the UPR. I understand that states
can make recommendations and the state under review can
undertake voluntary commitments. I'm just wondering, to the
extent that those can be used as levers for followup in
ensuring that progress is made with human rights and the
particular State under review, do those have teeth? What have
been recommendations? What have been some of the commitments?
Ms. Oldham-Moore. Thank you. Good question.
Ms. Gaer. Well, the simple answer is, nothing in this
process has teeth. It was designed as a peer review process,
without any enforcement capacity. Now, that's true of the
entire human rights business in the United Nations. Regarding
the instruments and the treaties and the other things, there
are no enforcement mechanisms that have teeth, that can be
enforced. I suppose if you go to the Security Council and you
get a criminal court established or something, then you will
have enforcement power.
But short of that, it doesn't exist, and it doesn't exist
in the human rights area. So what kind of followup takes place?
You build a web of commitment, you build the embarrassment of
public exposure, the public exposure in the ``club'' of the
peers. You have to participate. You can't just walk out. You
want to show, as Jim Feinerman was saying, that you respect the
rights and you accept the rights.
But the problem with the UPR process is, because it
includes everything in the Charter, the Universal Declaration,
treaties signed, commitments made voluntarily, including at
international conferences, a review of any given country can be
completely selective about what issues it deals with.
In the UPR, you can pick the most benign issues or the most
severe issues--it's usually the most benign--reach conclusions,
and then there's no enforcement. There will be a review in some
years, if the Council continues to exist, if it continues this
procedure, and if the procedure gets stronger. It has already
gotten stronger from the first to the third session in terms of
the quality of questioning and the planning by governments.
I think if we look at all UN bodies, you find that same
trajectory. The improvement will depend on NGOs and the input
and the preparation, in this case, that governments give to it,
and if they then have a means of holding governments to these
extended and vague recommendations that are made, it would be
quite remarkable.
Ms. Oldham-Moore. Thank you.
Question from a woman in the back, please. Yes, please
begin.
Ms. Couple. Virginia Couple, Albert Shanker Institute.
About a year ago, we did a Chinese -- in the report -- this law
-- participate.
Ms. Oldham-Moore. Did everybody hear?
Mr. Feinerman. I follow this a little bit. Since I brought
up the ILO and China's participation in that, I should probably
begin addressing this question, but I welcome other comments
that my fellow panelists may have. I think that China is going
to say that the Chinese labor system is already the best of all
possible worlds, and that it's only been made stronger.
To use the model of the Cultural Revolution, the situation
is excellent and constantly improving with regard to the
enjoyment of labor rights in China. Of course, that's not true.
In fact, I think that in the current economic climate, actually
in things that have been going on in the Chinese economy for
the last decade or more with the evolution of a market economy
from a state command economy, workers experience a lot of day-
to-day problems that the new labor law hasn't addressed and
that the Chinese leadership wants to sweep under the rug.
If you just take note of the last count, approximately
85,000 protests annually, some of which are quite small but
some of which are quite large in number, the larger ones tend
to be the ones that involve violations of labor rights--
everything from unpaid wages, especially companies that are now
going out of business, where the Hong Kong or Taiwan investor
just skips the country, literally, and closes down the factory,
to situations where people are given paper IOUs instead of cash
month after month, sometimes year after year, but still
expected to work in almost slave labor-like conditions. This is
something that I think needs to be brought up by the
international monitors of global labor rights, but I'm not so
sure how much the Chinese Government is going to take that or
respond to it.
The one last thing that I would mention in regard to the
labor rights question is that, as I mentioned in my opening
remarks, China is very sensitive about this. It just won't do
for China to be seen as falling down on the job as far as labor
rights are concerned. But the arguments have mostly been those
of denial and resistance rather than any promises to reform. If
you just look back to what happened in and around Tiananmen
Square, for example, in 1989, the hagiography of that era is
that the valiant students were standing up to the government,
which mowed them down.
But I think--and I said so at the time and shortly
afterward--what really got the government to exercise the most
violent force was when Workers Autonomous Federations started
organizing. They were much more worried. Twenty-two year-olds
at Peking University have been making trouble since the early
1900s, and that's something that they just take as a kind of
rite of spring. What really got the leadership worried was that
when those workers groups started mobilizing, first in Beijing,
later in Shanghai and other places, and threatened to really
bring down the system and completely undercut the legitimacy of
the Communist Party claiming to be the vanguard of the
proletariat, that's when the government called out the troops.
Ms. Oldham-Moore. Thank you, Jim.
Doug Grob, you had a question?
Mr. Grob. Thank you. First, I'd like to ask our panelists
to comment on the role of the press in this process, and the
potential pitfalls and hazards of covering the issue. Second,
what should the new administration, and European and other
foreign governments as well, say or do to leverage fully the
effectiveness of this process? Ellen, if you could speak on
that first. Thank you.
Ms. Bork. I think the main problem is taking--how do I put
this--the willingness to exact consequences for abuses. Any
particular process may have flaws or may face a certain kind of
resistance from the Chinese leadership. What's lacking is a
kind of sense that this is all leading to something. There's a
very important role for the press to play.
Again, sort of playing back on my analogy to the earlier
era, reading accounts of Helsinki Review Commission meetings,
it's quite extraordinary how consequential these were. At the
time no one thought the Soviets were going to immediately react
and agree, but they became a focal point for real pressure and
real expectations. I don't think at this stage we have those
expectations for China. I can only hope that that begins to
change, that this and other things like it become less of an
empty exercise in the engagement process. So the best thing
that could happen for a new administration would be a kind of a
shift in the view of China and the way it will reform, which I
think at the moment is really very stale, very--what's the
word? Inert.
Ms. Oldham-Moore. Thank you.
Any other questions from the audience? Anybody? [No
response]. Steve Marshall, please.
Mr. Marshall. I'm Steve Marshall and I cover Tibetan issues
for the CECC. I'd like to address a question to Xiaorong Li and
Ellen Bork. Article 18 of the Charter is titled, ``A Federated
Republic.'' In the text, it endorses democracy and specifically
mentions Taiwan, Hong Kong, and Macao. The article also brings
up ethnic issues and says, ``We should approach disputes in the
national-minority areas of China with an open mind, seeking
ways to find a workable framework within which all ethnic and
religious groups can flourish.'' This seems to be a fairly
obvious reference to Tibetans and Uyghurs, but the Charter
doesn't mention them by name anywhere. What are your thoughts
on this? Would mentioning the issues specifically have been too
detailed to suit the Charter's broader, more sweeping focus?
Or, in the view of the drafters, in Chinese eyes, could these
issues have been too sensitive, too divisive among Chinese
people to bring up, but advocating for democracy and redrafting
the Constitution were not? Thank you.
Ms. Li. Well, nobody can speak for the mind of Charter 08
signatories. Just from the observer's point of view, proposal
No. 19 in Charter 08 is one of the most contentious proposals.
There is an unconfirmed report on the Internet that President
Hu Jintao actually made some comments on this proposal,
expressing worries about its ``separatist'' overtone. This
worry could have been behind all the heightened police
crackdowns on Charter 08 signatories. I think, from what I
gather, the thinking behind not mentioning Tibet, Uyghur, or
Taiwan specifically was a strategic consideration--not to be
too confrontational or provocative. The idea was to allow
different regions to develop and democratize and then negotiate
on the basis of mutual respect some kind of federal government
that allows regional differences. In the proposal about
religious freedom, there is also a reference to ``non-
government religion'' instead of mentioning Falun Gong. This is
also a compromise. The drafters want to seek endorsement from
as broad a range of people as possible, and those compromises
on terminology, I think, are deliberate.
What you get is a text that strikes a very moderate tone of
voice, uses a very calm voice, and speaks with graceful
language in Chinese. The views are rationally reasoned. I think
that this explains the fact, if you look at the first batch of
303 signatories, they're from many walks of life, with a lot of
very prominent and well-respected figures in the Chinese
society, both outside and inside the government. It has broad
appeals. It mostly reiterates what is in the Chinese
Constitution, but it does make what might strike the Chinese
leaders as ``radical'' or ``sensitive'' ideas. For example,
there's a reference to replacing the One Party rule. These
things are bound to make the authorities nervous.
Ms. Oldham-Moore. Ellen, please? Just to frame it as I
don't know if people in the back heard: the Charter 08 platform
or language included language on ethnic minorities, and
pressure is being placed right now on Charter 08 signatories to
that document.
Ellen, please?
Ms. Bork. I don't have much to add to Xiaorong's careful
analysis, except to be struck that even though there are
compromises in language, even though there are sensitivities
that were probably taken into account in the formulation and
the seeking of signatures, it is nevertheless moving to see the
Chinese from all walks of life taking a courageous stand, and
attempting to deal with such sensitive issues, particularly
that relate to ethnic minorities and divisions of the country.
It reminds me also that so many of the signers of Charter
08 also signed the letter after last year's Tibetan protests
urging tolerance and dialogue with the Dalai Lama. I see these
sorts of efforts to deal with questions of minorities and race,
as like a civil rights movement motivated by the courage to
speak about things notwithstanding the consequences and
notwithstanding the taboos in their society.
Ms. Oldham-Moore. Thank you.
Jim, you'll have the last word.
Mr. Feinerman. Well, I don't know if I deserve it on this
particular issue. But one thing that does strike me about
Charter 08 -- and I just want to commend to you Perry Link's
translation. He and I have worked on a number of translation
projects over the years, starting with the work of Liu Binyan,
the famous journalist who wrote about China in the 1950s and
the 1970s. But I think that what struck me most about this, and
you can see there's either a ``glass half full'' or ``glass
half empty,'' is that on the one hand, Chinese intellectuals,
particularly those who are not from ethnic minority backgrounds
or from the areas of China that are still regarded as
irredentist claims like Taiwan, have tended in the past to be
remarkably resistant, despite their human rights positions on
everything else, to the idea of splitting China. They've tended
to almost parrot, the Communist Party line about the
inseparability of the Chinese homeland territory.
I think what's really remarkable about Charter 08--this is
the glass half full rather than half empty--is that even if you
find that it's not everything you would have wished for as a
representative, say, of the Tibetans or of Taiwan as a separate
and independent country and government, it shows remarkable
progress toward something that at least begins to open up the
consideration of these issues in a way that was unthinkable
even four or five years ago. This is one area where I think
there's really been an incredibly dynamic change.
It also explains why the government reaction has been so
intense. I would just ask you to remember that the dress
rehearsal for Tiananmen in June 1989 happened in Tibet in March
1989. Do you know who was running Tibet in March 1989? Hu
Jintao. I think that there's a direct line that connects the
dots here with regard to why there's such an intense negative
reaction to the things that are contained in Charter 08,
including this article, which suggests just how powerful the
arguments are and what the fearful
response of the Chinese leadership is to the thought that other
people might be taking up these ideas and seriously considering
them, which it sees as one of the greatest threats, other than
the criticism of the One Party system that's already been
mentioned, to the continued dominance and legitimacy of
Communist Party rule in the Mainland.
Ms. Oldham-Moore. Thank you.
For those of you who are interested in learning more about
Charter 08, please visit our Web site. We have a lot up on it.
We are actually going to close on time. Thank you, Felice Gaer,
James Feinerman, Xiaorong Li, and Ellen Bork.
Before we shut down the house, I just want to let you know,
February 13, in this room, we will be having a roundtable on
China's western region, Xinjiang, and the impact of security
measures and propaganda campaigns on human rights conditions in
that region after the Olympics. So, please join us then, and
thank you so much for coming today.
[Whereupon, at 11:29 a.m. the roundtable was concluded.]
A P P E N D I X
=======================================================================
Submission for the Record
----------
[From the New York Review of Books, Volume 56, Number 1, January 15,
2009]
China's Charter 08
(Translated from the Chinese by Perry Link, submitted by Xiaorong Li)
The document below, signed by more than two thousand Chinese
citizens, was
conceived and written in conscious admiration of the founding of
Charter 77 in Czechoslovakia, where, in January 1977, more than two
hundred Czech and Slovak intellectuals formed a
loose, informal, and open association of people . . . united by
the will to strive individually and collectively for respect
for human and civil rights in our country and throughout the
world.
The Chinese document calls not for ameliorative reform of the
current political system but for an end to some of its essential
features, including one-party rule, and their replacement with a system
based on human rights and democracy.
The prominent citizens who have signed the document are from both
outside and inside the government, and include not only well-known
dissidents and intellectuals, but also middle-level officials and rural
leaders. They chose December 10, the anniversary of the Universal
Declaration of Human Rights, as the day on which to express their
political ideas and to outline their vision of a constitutional,
democratic China. They want Charter 08 to serve as a blueprint for
fundamental political change in China in the years to come. The signers
of the document will form an informal group, open-ended in size but
united by a determination to promote democratization and protection of
human rights in China and beyond.
--Perry Link
i. foreword
A hundred years have passed since the writing of China's first
constitution. 2008 also marks the sixtieth anniversary of the
promulgation of the ``Universal Declaration of Human Rights,'' the
thirtieth anniversary of the appearance of the Democracy Wall in
Beijing, and the tenth of China's signing of the International Covenant
on Civil and Political Rights. We are approaching the twentieth
anniversary of the 1989 Tiananmen massacre of pro-democracy student
protesters. The Chinese people, who have endured human rights disasters
and uncountable struggles across these same years, now include many who
see clearly that freedom, equality, and human rights are universal
values of humankind and that democracy and constitutional government
are the fundamental framework for protecting these values.
By departing from these values, the Chinese government's approach
to ``modernization'' has proven disastrous. It has stripped people of
their rights, destroyed their dignity, and corrupted normal human
intercourse. So we ask: Where is China headed in the twenty-first
century? Will it continue with ``modernization'' under authoritarian
rule, or will it embrace universal human values, join the mainstream of
civilized nations, and build a democratic system? There can be no
avoiding these questions.
The shock of the Western impact upon China in the nineteenth
century laid bare a decadent authoritarian system and marked the
beginning of what is often called ``the greatest changes in thousands
of years'' for China. A ``self-strengthening movement'' followed, but
this aimed simply at appropriating the technology to build gunboats and
other Western material objects. China's humiliating naval defeat at the
hands of Japan in 1895 only confirmed the obsolescence of China's
system of government. The first attempts at modern political change
came with the ill-fated summer of reforms in 1898, but these were
cruelly crushed by ultraconservatives at China's imperial court. With
the revolution of 1911, which inaugurated Asia's first republic, the
authoritarian imperial system that had lasted for centuries was finally
supposed to have been laid to rest. But social conflict inside our
country and external pressures were to prevent it; China fell into a
patchwork of warlord fiefdoms and the new republic became a fleeting
dream.
The failure of both ``self- strengthening'' and political
renovation caused many of our forebears to reflect deeply on whether a
``cultural illness'' was afflicting our country. This mood gave rise,
during the May Fourth Movement of the late 1910s, to the championing of
``science and democracy.'' Yet that effort, too, foundered as warlord
chaos persisted and the Japanese invasion [beginning in Manchuria in
1931] brought national crisis.
Victory over Japan in 1945 offered one more chance for China to
move toward modern government, but the Communist defeat of the
Nationalists in the civil war thrust the nation into the abyss of
totalitarianism. The ``new China'' that emerged in 1949 proclaimed that
``the people are sovereign'' but in fact set up a system in which ``the
Party is all-powerful.'' The Communist Party of China seized control of
all organs of the state and all political, economic, and social
resources, and, using these, has produced a long trail of human rights
disasters, including, among many others, the Anti-Rightist Campaign
(1957), the Great Leap Forward (1958--1960), the Cultural Revolution
(1966--1969), the June Fourth [Tiananmen Square] Massacre (1989), and
the current repression of all unauthorized religions and the
suppression of the weiquan rights movement [a movement that aims to
defend citizens' rights promulgated in the Chinese Constitution and to
fight for human rights recognized by international conventions that the
Chinese government has signed]. During all this, the Chinese people
have paid a gargantuan price. Tens of millions have lost their lives,
and several generations have seen their freedom, their happiness, and
their human dignity cruelly trampled.
During the last two decades of the twentieth century the government
policy of ``Reform and Opening'' gave the Chinese people relief from
the pervasive poverty and totalitarianism of the Mao Zedong era, and
brought substantial increases in the wealth and living standards of
many Chinese as well as a partial restoration of economic freedom and
economic rights. Civil society began to grow, and popular calls for
more rights and more political freedom have grown apace. As the ruling
elite itself moved toward private ownership and the market economy, it
began to shift from an outright rejection of ``rights'' to a partial
acknowledgment of them.
In 1998 the Chinese government signed two important international
human rights conventions; in 2004 it amended its constitution to
include the phrase ``respect and protect human rights''; and this year,
2008, it has promised to promote a ``national human rights action
plan.'' Unfortunately most of this political progress has extended no
further than the paper on which it is written. The political reality,
which is plain for anyone to see, is that China has many laws but no
rule of law; it has a constitution but no constitutional government.
The ruling elite continues to cling to its authoritarian power and
fights off any move toward political change.
The stultifying results are endemic official corruption, an
undermining of the rule of law, weak human rights, decay in public
ethics, crony capitalism, growing inequality between the wealthy and
the poor, pillage of the natural environment as well as of the human
and historical environments, and the exacerbation of a long list of
social conflicts, especially, in recent times, a sharpening animosity
between officials and ordinary people.
As these conflicts and crises grow ever more intense, and as the
ruling elite continues with impunity to crush and to strip away the
rights of citizens to freedom, to property, and to the pursuit of
happiness, we see the powerless in our society--the vulnerable groups,
the people who have been suppressed and monitored, who have suffered
cruelty and even torture, and who have had no adequate avenues for
their protests, no courts to hear their pleas--becoming more militant
and raising the possibility of a violent conflict of disastrous
proportions. The decline of the current system has reached the point
where change is no longer optional.
ii. our fundamental principles
This is a historic moment for China, and our future hangs in the
balance. In reviewing the political modernization process of the past
hundred years or more, we reiterate and endorse basic universal values
as follows:
Freedom. Freedom is at the core of universal human values. Freedom
of speech, freedom of the press, freedom of assembly, freedom of
association, freedom in where to live, and the freedoms to strike, to
demonstrate, and to protest, among others, are the forms that freedom
takes. Without freedom, China will always remain far from civilized
ideals.
Human rights. Human rights are not bestowed by a state. Every
person is born with inherent rights to dignity and freedom. The
government exists for the protection of the human rights of its
citizens. The exercise of state power must be authorized by the people.
The succession of political disasters in China's recent history is a
direct consequence of the ruling regime's disregard for human rights.
Equality. The integrity, dignity, and freedom of every person--
regardless of social station, occupation, sex, economic condition,
ethnicity, skin color, religion, or political belief--are the same as
those of any other. Principles of equality before the law and equality
of social, economic, cultural, civil, and political rights must be
upheld.
Republicanism. Republicanism, which holds that power should be
balanced among different branches of government and competing interests
should be served, resembles the traditional Chinese political ideal of
``fairness in all under heaven.'' It allows different interest groups
and social assemblies, and people with a variety of cultures and
beliefs, to exercise democratic self-government and to deliberate in
order to reach peaceful resolution of public questions on a basis of
equal access to government and free and fair competition.
Democracy. The most fundamental principles of democracy are that
the people are sovereign and the people select their government.
Democracy has these characteristics: (1) Political power begins with
the people and the legitimacy of a regime derives from the people. (2)
Political power is exercised through choices that the people make. (3)
The holders of major official posts in government at all levels are
determined through periodic competitive elections. (4) While honoring
the will of the
majority, the fundamental dignity, freedom, and human rights of
minorities are protected. In short, democracy is a modern means for
achieving government truly ``of the people, by the people, and for the
people.''
Constitutional rule. Constitutional rule is rule through a legal
system and legal regulations to implement principles that are spelled
out in a constitution. It means protecting the freedom and the rights
of citizens, limiting and defining the scope of legitimate government
power, and providing the administrative apparatus necessary to serve
these ends.
iii. what we advocate
Authoritarianism is in general decline throughout the world; in
China, too, the era of emperors and overlords is on the way out. The
time is arriving everywhere for citizens to be masters of states. For
China the path that leads out of our current predicament is to divest
ourselves of the authoritarian notion of reliance on an ``enlightened
overlord'' or an ``honest official'' and to turn instead toward a
system of liberties, democracy, and the rule of law, and toward
fostering the consciousness of modern citizens who see rights as
fundamental and participation as a duty. Accordingly, and in a spirit
of this duty as responsible and constructive citizens, we offer the
following recommendations on national governance, citizens' rights, and
social development:
1. A New Constitution. We should recast our present constitution,
rescinding its provisions that contradict the principle that
sovereignty resides with the people and turning it into a document that
genuinely guarantees human rights, authorizes the exercise of public
power, and serves as the legal underpinning of China's democratization.
The constitution must be the highest law in the land, beyond violation
by any individual, group, or political party.
2. Separation of Powers. We should construct a modern government in
which the separation of legislative, judicial, and executive power is
guaranteed. We need an Administrative Law that defines the scope of
government responsibility and
prevents abuse of administrative power. Government should be
responsible to taxpayers. Division of power between provincial
governments and the central government should adhere to the principle
that central powers are only those specifically granted by the
constitution and all other powers belong to the local governments.
3. Legislative Democracy. Members of legislative bodies at all
levels should be chosen by direct election, and legislative democracy
should observe just and impartial principles.
4. An Independent Judiciary. The rule of law must be above the
interests of any particular political party and judges must be
independent. We need to establish a constitutional supreme court and
institute procedures for constitutional review. As soon as possible, we
should abolish all of the Committees on Political and Legal Affairs
that now allow Communist Party officials at every level to decide
politically sensitive cases in advance and out of court. We should
strictly forbid the use of public offices for private purposes.
5. Public Control of Public Servants. The military should be made
answerable to the national government, not to a political party, and
should be made more professional. Military personnel should swear
allegiance to the constitution and remain nonpartisan. Political party
organizations must be prohibited in the military. All public officials
including police should serve as nonpartisans, and the current practice
of favoring one political party in the hiring of public servants must
end.
6. Guarantee of Human Rights. There must be strict guarantees of
human rights and respect for human dignity. There should be a Human
Rights Committee, responsible to the highest legislative body, that
will prevent the government from abusing public power in violation of
human rights. A democratic and constitutional China especially must
guarantee the personal freedom of citizens. No one should suffer
illegal arrest, detention, arraignment, interrogation, or punishment.
The system of ``Reeducation through Labor'' must be abolished.
7. Election of Public Officials. There should be a comprehensive
system of democratic elections based on ``one person, one vote.'' The
direct election of administrative heads at the levels of county, city,
province, and nation should be systematically implemented. The rights
to hold periodic free elections and to participate in them as a citizen
are inalienable.
8. Rural--Urban Equality. The two-tier household registry system
must be abolished. This system favors urban residents and harms rural
residents. We should establish instead a system that gives every
citizen the same constitutional rights and the same freedom to choose
where to live.
9. Freedom to Form Groups. The right of citizens to form groups
must be guaranteed. The current system for registering nongovernment
groups, which requires a group to be ``approved,'' should be replaced
by a system in which a group simply registers itself. The formation of
political parties should be governed by the constitution and the laws,
which means that we must abolish the special privilege of one party to
monopolize power and must guarantee principles of free and fair
competition among political parties.
10. Freedom to Assemble. The constitution provides that peaceful
assembly, demonstration, protest, and freedom of expression are
fundamental rights of a citizen. The ruling party and the government
must not be permitted to subject these to illegal interference or
unconstitutional obstruction.
11. Freedom of Expression. We should make freedom of speech,
freedom of the press, and academic freedom universal, thereby
guaranteeing that citizens can be informed and can exercise their right
of political supervision. These freedoms should be upheld by a Press
Law that abolishes political restrictions on the press. The provision
in the current Criminal Law that refers to ``the crime of incitement to
subvert state power'' must be abolished. We should end the practice of
viewing words as crimes.
12. Freedom of Religion. We must guarantee freedom of religion and
belief, and institute a separation of religion and state. There must be
no governmental interference in peaceful religious activities. We
should abolish any laws, regulations, or local rules that limit or
suppress the religious freedom of citizens. We should abolish the
current system that requires religious groups (and their places of
worship) to get official approval in advance and substitute for it a
system in which registry is optional and, for those who choose to
register, automatic.
13. Civic Education. In our schools we should abolish political
curriculums and examinations that are designed to indoctrinate students
in state ideology and to instill support for the rule of one party. We
should replace them with civic education that advances universal values
and citizens' rights, fosters civic consciousness, and promotes civic
virtues that serve society.
14. Protection of Private Property. We should establish and protect
the right to private property and promote an economic system of free
and fair markets. We should do away with government monopolies in
commerce and industry and guarantee the freedom to start new
enterprises. We should establish a Committee on State-Owned Property,
reporting to the national legislature, that will monitor the transfer
of state-owned enterprises to private ownership in a fair, competitive,
and orderly manner. We should institute a land reform that promotes
private ownership of land, guarantees the right to buy and sell land,
and allows the true value of private property to be adequately
reflected in the market.
15. Financial and Tax Reform. We should establish a democratically
regulated and accountable system of public finance that ensures the
protection of taxpayer rights and that operates through legal
procedures. We need a system by which public revenues that belong to a
certain level of government--central, provincial, county or local--are
controlled at that level. We need major tax reform that will abolish
any unfair taxes, simplify the tax system, and spread the tax burden
fairly. Government officials should not be able to raise taxes, or
institute new ones, without public deliberation and the approval of a
democratic assembly. We should reform the ownership system in order to
encourage competition among a wider variety of market participants.
16. Social Security. We should establish a fair and adequate social
security system that covers all citizens and ensures basic access to
education, health care, retirement security, and employment.
17. Protection of the Environment. We need to protect the natural
environment and to promote development in a way that is sustainable and
responsible to our descendants and to the rest of humanity. This means
insisting that the state and its officials at all levels not only do
what they must do to achieve these goals, but also accept the
supervision and participation of nongovernmental organizations.
18. A Federated Republic. A democratic China should seek to act as
a responsible major power contributing toward peace and development in
the Asian Pacific region by approaching others in a spirit of equality
and fairness. In Hong Kong and Macao, we should support the freedoms
that already exist. With respect to Taiwan, we should declare our
commitment to the principles of freedom and democracy and then,
negotiating as equals and ready to compromise, seek a formula for
peaceful unification. We should approach disputes in the national-
minority areas of China with an open mind, seeking ways to find a
workable framework within which all ethnic and religious groups can
flourish. We should aim ultimately at a federation of democratic
communities of China.
19. Truth in Reconciliation. We should restore the reputations of
all people, including their family members, who suffered political
stigma in the political campaigns of the past or who have been labeled
as criminals because of their thought, speech, or faith. The state
should pay reparations to these people. All political
prisoners and prisoners of conscience must be released. There should be
a Truth Investigation Commission charged with finding the facts about
past injustices and atrocities, determining responsibility for them,
upholding justice, and, on these bases, seeking social reconciliation.
China, as a major nation of the world, as one of five permanent
members of the United Nations Security Council, and as a member of the
UN Council on Human Rights, should be contributing to peace for
humankind and progress toward human rights. Unfortunately, we stand
today as the only country among the major nations that remains mired in
authoritarian politics. Our political system continues to produce human
rights disasters and social crises, thereby not only constricting
China's own development but also limiting the progress of all of human
civilization. This must change, truly it must. The democratization of
Chinese politics can be put off no longer.
Accordingly, we dare to put civic spirit into practice by
announcing Charter 08. We hope that our fellow citizens who feel a
similar sense of crisis, responsibility, and mission, whether they are
inside the government or not, and regardless of their social status,
will set aside small differences to embrace the broad goals of this
citizens' movement. Together we can work for major changes in Chinese
society and for the rapid establishment of a free, democratic, and
constitutional country. We can bring to reality the goals and ideals
that our people have incessantly been seeking for more than a hundred
years, and can bring a brilliant new chapter to Chinese civilization.
--Perry Link, December 18, 2008