Human Rights and EU-China Relations

Ting Wai. Europe and China. Volume 1. Hong Kong University Press, 2012.

Introduction

Ever since the end of Cold War, China has strenuously persisted in continuing with its “open door” and reform policies, while insisting that the economic reform process can only succeed under the direction of the Chinese Communist Party (CCP). Rapid economic growth has enabled people to improve their livelihoods, thus helping to legitimize the one-party dictatorship. A more confident regime has become more determined to stand against the pressure from the West, which originates from and is epitomized in the form of economic and military sanctions after the Tiananmen incident of 1989. The robust economic prowess, coupled with the growing ambition to become a great power in the not so distant future, and fuelled by nationalism that fills the vacuum left over by the death of Marxist ideology, have rendered a “new” China that seeks to integrate her burgeoning market economy to the global capitalist market, while remaining reluctant to accept and absorb those values originated from the West. Human rights issues, long ignored by the US and Europe in dealing with China during the Cold War era, have surfaced after the Tiananmen tragedy, paradoxically at a time when China was determined to become even more open to the outside world. Human rights abuses in China have been better exposed to the Western world in a more open and transparent world; however, the increasingly confident and assertive Beijing authorities seem to be steadfast in resisting Western pressure aiming to transform China in their favor. Since 1996, the EU and China have been engaging in a bi-annual Human Rights Dialogue, but people in Europe are becoming skeptical about the effectiveness of such a dialogue in improving human rights conditions in China. What kinds of concrete results—that is, substantial changes in human rights situation in China—have been achieved? How can the regular encounters between high officials of both sides help modify the Chinese values, norms, and laws in relations to human rights, bearing in mind that these norms and laws are largely shaped by the ruling CCP that seeks to consolidate its rule? Will the dialogue become a “dialogue des sourds”?

The political thoughts of those great French thinkers of the Enlightenment, such as Voltaire and Jean-Jacques Rousseau, are greatly inspirational. The same is true for the great political thinkers of the post-war period, like Jean-Paul Sartre, Raymond Aron, and even the (dissident) Marxist Louis Althusser. I see no problem at all in accepting the Western ideas of human rights, democracy, and rule of law. During the most open period in the history of the PRC, from 1986 to 1988, many intellectuals in China expressed their views about political transformation in China. The frequently asked question was: are those values originating from the West, such as democracy and human rights, universal?

One sociologist coined the following metaphor: if we can accept the music of Mozart and Beethoven, since their music represents the best product of human civilization during that period, why cannot we accept other best products of human civilization during the same period, that is, democracy and human rights? Nobody really cares whether Mozart or Beethoven is Austrian or German. In reality everybody only treasures their music which has become immortal, the so-called classical music. We know that classical music was forbidden in China during the Cultural Revolution as it was condemned as product of the decadent capitalist class. It is seen as part of the superstructure, including culture, laws, social, and political institutions, that reflects only the infrastructure, that is, the capitalist mode of production. If we can accept Mozart and Beethoven, can we accept democracy and human rights as universal? The answer of that sociologist was a simple yes. Those values are considered as the best product of human civilization during that period, and many countries benefit from those values for the last two centuries.

So there is no reason to reject human rights and democracy just because they originated from the West, just like it is not reasonable to reject Mozart and Beethoven simply because they are German or Austrian. If the Chinese could accept these values as universal, then other measures, mechanism, and institutions originated from these values should also be accepted by China. In fact, many scholars at that time discussed about the importance of “check and balance” among the legislative, judicial, and executive powers in order to prevent the abuse of power by the rulers and officials; the extremely significant role of independent judiciary in safeguarding justice and virtue of the society; and the crucial importance of democracy as a procedural device to ensure better policy-making process as well as surveillance mechanism to supervise the demeanor of officials.

The official Chinese perceptions and conceptions of human rights are straightforward. Nowadays the CCP leaders would not deny that the values of human rights and democracy are not universal. They say that they wholeheartedly embrace these values. They simply emphasize, however, that due to specific historical, social, cultural, and political background, these universal values may be manifested in different forms in different countries. Within the mainland, we always hear that China has her own model of development, with her own specific theory and practice in her unique path of transformation. A recent statement by Zheng Yonglian indicated that China has succeeded in economic development in the last three decades, while in the next stage of two or three decades, China will be engaged in social development, which includes implementation of measures that the Hu-Wen administration is keen to achieve, such as a robust social security system, medical insurance program for all the citizens, concern about the minorities and the interior mainland. He maintains that a thorough political reform (democratization) could become successful only after the full accomplishment of economic and social reforms, which means we have to wait for another 30 years. “Radical” democratic reforms would only lead to instability.

Resulting from an understanding of both the Western and Chinese perceptions of human rights, the question of what “outsiders” can do in order to narrow down the great difference in the conception and cognition of human rights poses itself. What is to be done in order to improve the human rights situation in China? How can the human rights conditions in China be judged? There exists clearly a great discrepancy between the EU’s ideas on human rights, democracy, and rule of law, and the Chinese perceptions of these ideas, as well as the Chinese practice. The EU is enthusiastic in promoting human rights and democracy as part of its strategy regarding the third country, but Beijing analysts obviously are skeptical of the “savior” mentality of this normative power. Deep in the hearts of CCP leaders is the fear of “peaceful evolution” or “colored revolution” (or velvet revolution) launched by the West through the “human rights diplomacy.”

There are two key questions in this chapter. First, how would international relations influence human rights conditions in a country like China? In the last two decades after the Tiananmen incident, the debates have revolved around whether “hard” measures like sanctions or “soft” measures like engagement or dialogue would be more useful to promote changes within China. We are interested in how external relations might pose an impact towards domestic development or transformation of such a vast society towards better respect of human rights.

Second, to what extent does the human rights situation in China affect international relations? It is usually stipulated that before 1989, there was no impact at all, as the West relied on China to balance against the USSR, that is to say, strategic rationale during the Cold War period prevails in relation to human rights situation within China. After the Tiananmen incident, in the beginning of the 1990s, sanctions as well as annual review of China’s human rights conditions in the United Nations Commission on Human Rights (UNCHR) brought the human rights situation of China to the international stage, but due to the rapid rise of China as a major economic power, economic interests as well as political considerations of the West prevail over domestic human rights situation within China. After 1996, the EU launched the Human Rights Dialogue with China, in parallel to the many bilateral Human Rights Dialogues held between China and individual countries, but apparently the periodic encounters between two groups of high officials have not yielded concrete results.

Vicissitudes in EU-China Relations Regarding Human Rights

The crackdown on the student demonstrations in 1989 was considered by the West as an infringement of “a whole range of fundamental human rights: the right to life, freedom from arbitrary detention, restrictions on free speech, restrictions on freedom of assembly, restrictions on freedom to organize independent trade unions and other rights” (Baker, 2002: 49). Hence the economic and political sanctions imposed on China, including the suspension of high-level visits, as well as the famous arms embargo from Europe which is still a lingering problem in Europe-China relations today.

The sanctions imposed on China after 1989 were partially lifted starting from the mid-1990s. Human rights problem was de-linked from the Most Favored Nation (MFN) status issue by President Bill Clinton in 1994. The official visit of President Jiang Zemin to Washington in late October 1997 epitomized the “official and victorious” return of China to international community. Press reports in China and Hong Kong glorified this state visit, saying that China had eventually won against the pressure and sanctions incurred upon China by the West. However, in order to show the sincerity of Chinese government, Beijing decided to sign the Zangger Group just before his visit, and at the same time signed the International Covenant on Economic, Social and Cultural Rights (ICESCR). In other words, Chinese leaders wanted to show that China decided to abide by the major international agreements on two major issues: arms control and human rights. This can be regarded as a major concession made by Beijing in order to “breakthrough” the sanctions and the state of isolation imposed by the West. The pressure from the West is not practically useless in exchange for partial Chinese promise to abide by international norms. Needless to say, these international institutions to which China wishes to join plus the inherent international norms are all products of the West, and to a great extent, products of the US that reflect their values, norms, culture, and institutions. International relations can be regarded as effective at least in posing an impact towards the amelioration of human rights conditions in China, even if the progress can be very slow, as it involves the changes in the mentality of Chinese leaders, who are always obsessed with the alleged “conspiracy” of the West, a common psychological burden of the Chinese people resulting from one century of “national humiliation.”

More or less at the same time, in 1997, some countries, led by France, decided not to co-sponsor the resolution in the UNCHR which urged China to improve its human rights conditions. This happened just one month before the official visit of President Jacques Chirac to Beijing in May 1997. Chirac was always considered by China as a more considerate Western politician who took into account the particularities of China resulting from its ancient and old civilization. Earlier in January 1995, the EU-China dialogue on human rights was held. The second round of the dialogue should have been done in Beijing in January 1996, but was suspended as the EU still wanted to co-sponsor a resolution at the UNCHR in that year. Finally the dialogue resumed in October 1997 in Luxembourg. So we can deduce that several things happened at the same time. On the one hand, Chinese government wants to show to her people that it has successfully achieved a breakthrough in the so-called “containment” efforts against China after 1989, by resuming contacts with the West on an equal basis, boosting the self-confidence of the Chinese leaders. On the other hand, it cannot be denied that continual pressure from both US and European countries did play a role in fostering China to comply with international norms. Starting from the late 1990s, it was clear from the Chinese documents that staying outside the international institutions since they are products of the West is not a good policy for China. These international institutions created by the West, doubtless, serve primarily Western interests. If these international institutions are not fair enough and do not necessarily serve the interests of China and third world countries, then China should try to enter these international institutions so that she could transform them from within. China could then help to modify the international norms in order that voices and interests of the developing nations could be respected.

From 2000 onwards, a clearer EU Asia human rights policy emerged, through a Commission report on the Implementation of Measures Intended to Promote Observance of Human Rights and Democratic Principles in External Relations 1996-1999, and a paper on the European Union’s Role in Promoting Human Rights and Democratization in Third Countries in May 2001. Later came the Commission’s report Europe and Asia: A Strategic Framework for Enhanced Partnerships, emphasizing human rights as one of the six “key priorities” in Asia policy (Wiessala, 2004). Promoting human rights, democracy, and rule of law has then become a clear-cut policy of the EU which maintains that the value of human rights is universal, and due respect of civil and political rights of individuals must be needed in all countries.

How useful are the measures imposed by the West in ameliorating human rights conditions in China? Indeed we have come across directly opposing views. On the one hand, some analysts stress that during the early 1990s when the MFN became an annual acute issue in Sino-American relations, “hard” measures such as sanctions are not as effective as “soft” measures such as engagement (Li and Drury, 2004: 378-394):

… the level of Chinese repression actually increased during the months the MFN debates were held. There were more arrests, detentions, and other political restrictions and fewer, if any, accommodations during those months that the debate raged in the US. Beijing was the least repressive during the last and first quarters of each year after 1992. These periods did not, of course, overlap with any of the MFN debates in the US. Essentially, Beijing was more repressive when the US was threatening. (Li and Drury, 2004: 390)

On the other hand, some analysts find out some sort of correlation between the strong stance adopted by the US and the EU during the annual conference of UNCHR and the Chinese reactions. Attempts of China in releasing some prominent dissidents in the spring of almost every year in the 1990s demonstrate at least the careful calculation of Beijing that some gestures in human rights improvement would be helpful to engage China in continual economic opening up, which is deemed to be crucial for China’s development. Though these dissidents, such as Wei Jingsheng and Wang Dan, were arrested again after the MFN issue was solved, they were finally sent to exile, so that they could never extend their influence within the mainland in the future. Urging for a more open, rational, and transparent society is one of the fundamental goals of human rights policy of the EU, but within China the strict censorship against the dissemination of information regarding the June Fourth and its aftermath plus the arrests of important dissidents, render it impossible to continue the so-called democratic “movement” in China. Sporadic reactions to the misdeeds of the regime in the last two decades have been circumscribed individually so that they could not merge together and collude into a political “movement,” not to say developing into a strong and dynamic political force that could challenge the ruling party.

The Human Rights Dialogues, under the auspices of the European Council and Commission, and held in two rounds annually in Beijing and a European city respectively, are considered as the highest level encounter between the EU and the Chinese government, but over the past 12 years its limited result is increasingly challenged by the Europeans who then request for more concrete measures. On the contrary, the European Parliament (EP) is regarded as a much more vocal European institution against human rights violations in China (European Parliament, 2007). It always urges the Council and the Commission to formulate a more coherent and consistent policy towards China, between increased trade and economic relations, and substantial progress in democracy, rule of law, and human rights (European Parliament, 2005). The EP insists that the Council should make a comprehensive evaluation of the human rights situation before finalizing the new Partnership and Cooperation Framework Agreement signed with China in the future. The agreement should include an effective human rights clause (European Parliament, 2007). The Parliament also insists that the EU arms embargo must remain intact unless substantial progress was made on human rights issue, while the EU Code of Conduct on Arms Exports should be included as a criterion respect for human rights in China. The EP is particularly vocal on the censorship of information in the internet and the Tibet issue. In December 2008, the EP also presented the annual Sakharov Prize for Freedom of Thought to Hu Jia, a prominent activist who pleads for the rights of HIV/AIDS patients in China.

In the EU Guidelines on Human Rights, which were established by the Working Party on Human Rights (COHOM) under the European Council, it is clearly specified that the dialogue with China is the “only regular institutionalized dialogue devoted solely to human rights between the EU and a third country” (European Council, 2005b: 24). A survey of the series of Human Rights Dialogue reveals some consistent or even “perennial” problems, together with some new problems that have arisen recently due to the new domestic political situation in China which witnesses the growth of a new kind of human rights defenders (weiquan renshi) such as lawyers, journalists, and intellectuals. In 1998, the EU expressed concern about freedom of opinion, expression, and assembly; extensive use of death penalty; arbitrary detention; labor camps; and the treatment of religious and ethnic minorities, especially in Tibet and Xinjiang (European Council, 1998/1999: 20). In 1999 and 2000 the EU queried about the lack of legal process in determining “reform through education” (European Council, 2000: 29), and the broad definition of crimes endangering state security. In 2001, apart from the persistent issues mentioned before, the EU raised the issue concerning torture, as the “strike hard campaign” (yanda) launched by the Chinese government might result in injustice and discrimination (European Council, 2001: 43). After the National People’s Congress of China ratified the ICESCR, the EU expressed concern in 2001 about the right to form or to join a trade union. Chinese workers still lack the collective negotiation right in case of a conflict with the employers (Balme, 2008: 165). In 2004, all the above issues were reiterated by the EU officials, while China expressed “her intention to adopt new legislation on re-education through labor (RTL) in order to introduce more judicial guarantees” (European Council, 2002: 44). The European Commission even proposed to China to set up an independent national human rights institution (European Council, 2002).

Since 2005, apart from the COHOM which represented the EU in the Human Rights Dialogue, the newly appointed High Representative’s Personal Representative on Human Rights of the EU also joined the dialogue. Chinese officials signaled a series of progress in law reform, including setting up a special court for minors; reviewing all the death penalty cases by the Supreme People’s Court; and establishing regulations on interrogation, detention, and rights of prisoners to prevent and eradicate torture. New regulations were also set up regarding demolition of houses, legal assistance provided to the less privileged people, as well as criminal procedure (European Council, 2005a: 37). Starting from 2006, apparently the EU seems to be more critical regarding human rights situation within China. During the dialogue, even the issue of organ transplants from executed prisoners was raised, while China responded by clarifying that a new regulation on organ transplants came into effect in July 2006 (European Council, 2006: 18). In 2007, reform of the criminal justice system, as well as freedom of expression via the internet, was raised by the EU. The Chinese authorities indicated that new regulations regarding criminal procedures, labor contract law, and property law were adopted in March 2007 by the National People’s Congress (European Council, 2007: 22). In 2008, the EU expressed grave concern regarding the prisoners arrested during the Tibet riots in March 2008, the situation of human rights defenders and petitioners, as well as the overall human rights improvement after the 2008 Olympic Games. Cooperation projects developed between the EU and China include:

  1. EU-China legal and judicial cooperation program (LJC) launched in March 2000 to support the rule of law in China through exchange and training programs for Chinese lawyers (European Council, 2000: 29);
  2. EU-China Village Governance Training Program (VGT) in seven provinces to empower citizens with civil rights at the grass-roots level;2
  3. Governance for Equitable Development with the United Nations Development Program (UNDP);
  4. EU-China Human Rights Projects Facility for small-scale activities, managed by the Commission delegation in Beijing;
  5. Support to the Chinese Federation of Handicapped Persons;
  6. Program to promote economic, social, and civil rights in Yunnan Province.

However, these programs for “capacity-building” in order to institutionalize the rule of law and human rights might have limited impact due to their relatively small scale in such a vast country. Indeed, Europe parliamentarians as well as ministers consistently ask for concrete targets and substantial progress from Human Rights Dialogue. Though certain progress regarding the rule of law have been made by the Chinese authorities concerning legal procedure and law enforcement, the progress made is mainly due to the necessities from domestic pressure urging for better governance, rather than a reaction to the pressure from Europe. The effect of the “soft,” subtle, and low-profile approach adopted by the EU in persuading China to transform its legal system for a better protection of human rights is rather limited.

Chinese Perceptions of Human Rights

The Chinese conceptions of human rights can be seen as a product of traditional Chinese political culture and communist Chinese political culture. Scholars in China always refer to the importance of three factors in shaping contemporary China’s perception of human rights. First, one century of national humiliation under the repression of Western imperialism makes the safeguard of national sovereignty as a primordial objective among Chinese leaders. Second, there exists a strong wish to maintain economic development in order to raise the hard power of China. Third, stability is crucially needed to fulfill the national goals. However, one should not ignore the reality of one-party dictatorship, in other words, the role of the CCP in shaping the primary values of human rights and political development, as well as the crucial need to sacrifice human rights for the sake of safeguarding the rule and supreme authority of the CCP.

The elements of human rights from the Chinese official perspective are composed of the followings:

(1) On the “subject” of human rights: human rights include both rights of individual as well as collective rights;

(2) As a corollary of the first principle, national sovereignty must prevail over human rights. If a nation is under the control of others, how can one guarantee the rights of every individual within the nation? China was thus vehemently against “humanitarian intervention,” the underlying concept behind NATO’s intervention in Kosovo against Serbia. The well-known statement is that one should not interfere in the sovereignty of another state basing on human rights factor. However, we would like to point out that China was always against the so-called “appeasement” policy of France and Britain before the beginning of World War II. The two countries admitted the atrocities of Hitler against the Jews within Germany, as well as Nazi Germany’s eastern invasion in Czechoslovakia, in exchange for Hitler not launching military actions to the western front. The CCP criticized that the two strong powers should not remain idle facing the German ambition. Appeasement could not result in real peace. Eventually after the eastern European countries were invaded, the Germans turned to the West and attacked France. In fact, due to the non-actions of the Europeans during the early period of conflicts in Bosnia, the human rights of many Bosnians, even their right to life, were seriously infringed.

(3) As another corollary of the first principle, for the content of human rights, economic, social, and cultural rights of the community of individuals are equally important as civil and political rights of individuals.

(4) Apart from recognizing that human rights are a universal value, particularities should be noted, as every nation has its own specific cultural and historical contexts. It is stressed that in different stages of development under different cultural backgrounds, human rights may be interpreted differently.

(5) Right to life and right to development are fundamental human rights.

(6) Stability is the pre-condition for the realization of human rights, development is crucial for the realization of human rights, and rule of law safeguards the realization of human rights.

The only way to promote international human rights development is dialogue and cooperation. Human rights situation of a country should not be used a pretext for interference of domestic politics of that country (see Linxia, 2007; also Wang and Meiping, 2007: 12-14). Hence the EP’s demand that political conditionality should be put on equal footing with economic conditionality must be refuted (Börzel and Risse, 2004: 10).

Problems and issues in the Human Rights Dialogue between China and Europe

Death Penalty

According to the traditional Chinese political culture, if one kills somebody, he should compensate for the loss of life of that person. The compensation is very simple: he should be killed in order to “return” the life to that person (sa ren tian ming). It is extremely difficult to convince ordinary Chinese people to accept the Western way of thinking, that nobody has the right to deprive the right of life of others, including a criminal that has murdered somebody, even though there is substantial evidence that the criminal has indeed committed the crime. So even today, in other East Asian countries and regions like Japan, Korea, and Taiwan, the death penalty still exists. Moreover, there is a Chinese saying that in order to keep the society safe and stable, we need to impose heavy punishment (zhiluanshi, yongzhongdian). The issue becomes even more complicated in China after 1949 as severe punishment against the so-called “counter-revolutionaries” who are alleged to create troubles for the stability of the socialist society or even try to overthrow the regime of the CCP is considered as absolutely necessary. The traditional Chinese political cultural thinking merges with the communist Chinese thinking and renders China a country with a huge sum of capital punishment (FIDH and Human Rights in China, 2004).

Even in Hong Kong and France, the death penalty was only abolished in 1991 and 1981 respectively. It is thus somewhat unrealistic to ask China to abolish capital punishment for the time being. Nevertheless, China has improved the procedure and process of determining capital punishment. Since 2006, all the decisions made regarding death penalty must be re-examined by the Supreme People’s Court, in order to seriously handle and unify the benchmark to carry out death penalty, and to make sure that sufficient evidence is there for each case (Chinese Association for the Studies of Human Rights, 2008). However, it will take a long time to have substantial improvement in this regard. The right to life, though recognized by the two international covenants, has not yet been confirmed by the Chinese Constitution. Since the Constitution does not disallow the expropriation of right to life, in China’s Criminal Law, there are still 68 kinds of crimes that might lead to capital punishment, which amounts to one out of seven total numbers of crimes (Yan, 2006: 68). But hopefully the Chinese court would be more stringent in making decisions regarding capital punishment, and evidently the pressure from the outside world has not been kept at bay. In reality, during the Human Rights Dialogue held in 1998 and 1999, the EU did press “the Chinese authorities to ensure that all appeals (on death penalty) are heard by the Supreme People’s Court, and for data on the number of executions and other information related to the use of the death penalty” (European Council, 1998/1999: p. 20). At present there are discussions about the possibility of abolishing the death penalty, and optimists predict the end of capital punishment in the not too distant future. While Chinese leaders seek to develop the country into an advanced and civilized nation, whether capital punishment should be maintained or not would certainly be put on their agenda.

Ratification of the International Covenant on Civil and Political Rights (ICCPR)

China signed the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1997, which was then ratified by the National People’s Congress in 2001. However, regarding the rights of labor, Beijing authorities ask to be exempted from the ICESCR. In fact, the Chinese Constitution still lacks stipulations on the rights to self-determination, to participate and organize trade unions, to have freedom of strike, and to enjoy an adequate standard of living.

China signed the ICCPR in 1998, but up until now has not yet ratified it. The major reason given by Chinese jurists is that within the Constitution, many stipulations are still missing. In reality, China after signing the ICCPR should move ahead in adding the relevant articles in her Constitution. However, the revision and amendment remain slow. China did add a stipulation “respect and safeguard human rights” in the Constitution. Though this can be considered as a great progress, what are clearly stipulated in the ICCPR but still missing in the Constitution include the right to determination, right to life, abolishing torture, non-discrimination, equality before the law, freedom of resettlement, legitimate rights of foreign nationals, impossibility to have retrospective power when enacting new legislation, respect of the dignity of those who are deprived of their freedom, freedom to private life, freedom to establish family, freedom of thought and conscience, protection of religious rights of the minorities (Yan, 2006).

Indeed, there is a great discrepancy concerning human rights expression between the Chinese Constitution and the two international covenants. What is missing in the Constitution mainly belong to the judicial area. As there are not sufficient stipulations in the Constitution that safeguard the rights of individuals, torture, injustice, and unfairness in the judicial court, non-respect of detainees’ dignity often happen. Further revisions of the Constitution are thus deemed necessary to enhance the human rights conditions in China.

Protection of Individual Political and Civil Rights

The amendments of the Constitution in 2004 not only enhance protection of human rights, but also concern the protection of private property, the appropriation of land, and social security. As the society is transforming fast and becoming more heterogeneous, many people express concern about their individual rights against the abuse of power of government officials and the illegitimate alliance between the public sector and the business sector. Protection of land property, which is considered as the most important asset in both urban and rural areas, and protection against forced eviction by local governments and developers, have become issue of key concerns in recent years, and the major source for large-scale manifestations. However, we have witnessed significant progress in the protection of economic rights, as 15 out of 31 amendments in the revisions of the Constitution in 1988, 1993, 1999, and 2004 are in the realm of economic rights.

The recent incident of Deng Yujiao, a 20-year-old worker in an entertainment center, has aroused a heated debate and massive support from the “web people” (wangmin) in China. Deng was allegedly under the threat of rape by three officials, who wanted to have “special” services but was refused. In order to protect herself, she killed one of the three and hurt another. Interestingly, everybody applauded her “just” behavior, and lots of organizations supported her. Eventually she was released, though she pleaded guilty. The “crime” was said to be “over-defense,” but since she was honest in reporting to the police and she suffers from some psychological problems, she was released by the authorities. However, if the attempted rape was real, her defense was totally legitimate and she should not have pleaded guilty. The whole story reflects a rising consciousness among ordinary people concerning protection of their individual rights against misdeeds of government officials.

The internet facilitates the creation and dissemination of public opinion, which has successfully exerted its influence towards justice. Facing the challenges of the internet, apart from the famous Golden Shield project which is a kind of web-police, the Chinese government has started to launch the new Green Dam project since July 2009, which requests any new computer to build in pre-installed software aiming to filter all the undesirable websites. Censorship of all “undesirable” information via the internet is considered by many as infringement of the right to freedom of information.

In any case, EU Commissioner for External Relations and European Neighborhood Policy Benita Ferrero-Waldner (2007) explicitly claims that the Commission is well concerned by the situation of the civil and political rights of China, especially that “the repression of human rights defenders remains a key concern. Exercising the right to speak freely often leads to beating, house arrest or terms of imprisonment.”

Freedoms of Speech, Assembly, and Association

Doubtless to say, this is an issue that reminds us of not only the traditional Chinese authoritarian regime, but also the Stalinist political system. The freedom of speech is restrained for the sake of stability. While in the Western liberal democratic tradition, it is believed that it is possible to strike a balance between fulfilling the interests of individuals and maintaining the social order and political stability, according to the traditional Chinese tradition, one tends to believe that only by sacrificing the rights of individuals can order be achieved. This is also the fundamental idea of the “father of Singaporean nation,” Lee Kuan Yew, though he was totally Western-educated. This kind of thinking, epitomized as “Asian values,” is fully embraced by the CCP which has to safeguard its supreme authority in leading the society. The freedom of speech is subject to the sanction of the ruling party. Though the crime of “counter-revolutionary” has been abolished from criminal law in 1997, people can still be accused of breaching national security, instigating secession or subversive activities, as well as stealing and keeping illegally the state secrets.

People in Hong Kong understand much better the idea of the CCP and the Chinese law on national security when the debate on Article 23 of the Basic Law was launched during the period 2002-03. In the existing common law system, if someone holds a banner or gives a speech requesting independence of Taiwan or Tibet, it is not unlawful to do so, as he is only exercising his right of expression. However, in the mainland, it is absolutely illegal to do so. He will be accused of instigating seditious activities. The essential problem for the legislature of Hong Kong is that, in order to implement Article 23 against sedition and subversion, if one is doing the same thing in Hong Kong as mentioned above, would it be legal or not? The question remains unanswered, as the process for the establishment of Hong Kong’s own law in implementing Article 23 is still suspended.

The freedom of association is still limited. Non-governmental organizations (NGOs) must register with the Ministry of Civil Affairs with the support of a local governmental department, thus undergoing close monitoring and some sort of control by the authorities. Despite of all these difficulties, the proliferation of various types of NGOs (albeit under close supervision) reflects the emergence of civil society and the growing influence of the people’s organizations.

The freedom of press is undergoing severe restraint, as journalists have to succumb to the “discipline of propaganda,” which is subject to interpretation of the Propaganda Department of the CCP, apart from many regulations and laws which are clearly and precisely defined in order to exercise the Party authority over the media (Chen, 2005: 7). Free communication of information can be restrained for the sake of public interests, national security, and maintaining state secrets. But the problem is how to define these terms. The line is usually drawn primarily to protect the security of the regime in order to guarantee social stability, rather than to disseminate the maximum amount of information to culturally enrich the people. It is always stipulated in China that only when national interests are guaranteed can individual interests be fulfilled. When China was occupied during World War II, its sovereignty was infringed upon by Japanese imperialism, thus it is meaningless to talk about individual political rights. But now when national sovereignty is not at stake, why can individual political and civil rights not be well safeguarded? Before collective or national interests, is it really fair to put individual rights only in the secondary position? In recent years, the Chinese regime has arrested a number of human rights defenders, including lawyers, journalists, intellectuals who are active in propagating their ideas via the Internet, and NGOs activists, the latest ones being Liu Xiaobo, a dissident intellectual who created the “Charter 08” in 2008, and Xu Zhiyong, the lawyer who set up an organization to provide free legal assistance to the minorities and the disadvantageous groups (see Lam, 2009). These people only fight for justice; they have no intention to overthrow the rule of CCP or challenge its supreme authority. However, revealing the unfairness and injustice due to the misdeeds of the regime might have serious political consequences for the stability of the regime, and so these people are regarded as “dangerous.”

Rights of Ethnic Minorities and Religious Freedom

Since the Tibet and Uighur separatists as well as the clandestine Catholic Church are not under the control of the CCP and energetically fight for their own causes, they are objects of repression. The EP has denounced the Chinese governmental actions, as they are judged as actions of injustice against minorities. Yet what the Chinese nation needs is a kind of “superior principles” at the national level that can unify all the ethnic groups and/or minorities, irrespective of their differences in language, culture, history, customs, and religion. The principles should be able to transcend their differences and divergences, and become a unifying force for the people who are then proud to become part of the nation and loyal to the state. It is absolutely impossible for the Han majority to assimilate the Tibetans and Uighurs (contrary to the Manchus who ruled China during the Qing dynasty but were totally assimilated by the Han culture); equally speaking it is impossible to win their hearts only by injecting more money for economic development. A true respect of their beliefs, customs, and culture is crucially needed.

Administrative Detention

The administration detention power in the hands of the public security officials can be regarded as one of the characteristics of the so-called “communist rule.” In the West where the division and separation of power are fundamental, the power of the executive organ to detain suspected criminals is seriously restricted. For instance in Hong Kong, after the police arrests a suspect, the detainee can be kept for only 48 hours; provided with substantial evidence he will be charged with a crime, or else he must be released. But in the mainland, all the power related to legal matters is in the hands of the CCP, who leads the police, judiciary, and prosecution. The three organs are grouped together and labeled as “Gongjianfa” and led by the Committee for Political and Legal Affairs within the CCP. Administrative detention power of the police, just like the judiciary and the prosecution, can be simply regarded as an instrument for the CCP to exercise its rule.

Administrative detention is thus not seen as an important issue in China and the public security officials can arbitrarily seek more time to search for sufficient evidence. However, this discretionary power of the police creates ample opportunities for the police to use it as a political instrument to limit the freedom of many basing on the pretext of maintaining social order, thus it has become a “flexible and abusive tool” (on administrative detention, see Biddulph, 2007: 359). Though since March 2006, in the new Law on Public Security Administration and Punishment, it is stipulated that the detention period can only last for a maximum of 15 days (Qun, 2009: 44-49); in many cases the accused may still be detained for a very long period before they are formally brought to the courts, as shown by the case of Ching Cheong, the famous Hong Kong journalist who was sentenced to five years of imprisonment after a long period of detention, and the recent case of Liu Xiaobo, who has been detained for one year before he was brought to the court in December 2009, and sentenced to 11 years of imprisonment.

Chinese jurists have expressed discontents on this issue. They ask for “judicial inspection,” that is, any kinds of administrative detention or administrative punishment must first be approved by the judiciary (Li, 2006: 64-69). In administrative detention, the public security organ is an institution that merges together the role of investigator and decision-maker for the punishment. This could only result in unfair decision and an infringement of individual freedom, as those who are proved to be innocent after the administrative detention have already suffered and have difficulties in obtaining remedial measures (Ye, 2009: 99-100).

Nevertheless, as a Western scholar indicates, “in an overall environment where state power is increasingly legally defined, the form of administrative detention powers appears to remain heavily determined by social order policy and the political-legal environment in which that policy is formulated and implemented. Yet indications are that the demand to legalize state powers has now reached the policy of social order and the process of creating a legal basis for police administrative detention power is under serious contemplation” (Biddulph, 2007: 362). The EU’s efforts in criticizing the administrative detention power of Chinese public security officials are consistent. External pressure in this regard may succeed in playing a role.

Democracy

Chinese theorists stress that China embraces the value of democracy, but its implementation in China is different from the Western democratic system, again due to radically different historical, cultural, and political background. Yu Keping, a prominent political scientist that has become popular since he launched his saying “[D]emocracy is a good thing,” insists that China has its unique model of economic and political development. Democracy is considered fundamental to the enactment of rule of law and protection of human rights, but democracy in China can only be exercised under the leadership and authority of the CCP. What he means by democracy is not too far away from good governance, but it is not easy to comprehend how real democracy could function under one-party dictatorship (Yu, 2009).

What is to Be Done?

Starting from the late Qing dynasty, Chinese intellectuals and scholars have given much thought on the possible paths of Chinese modernization. The prophetic Liang Qichao insisted that Chinese people and culture must undergo a major transformation, which is a process of “rejuvenation.” Lu Xun criticized vehemently the misdemeanor of Chinese people and the underpinning Chinese traditional or feudal culture that made China decadent and corrupt. The great liberalist Hu Shih promoted liberalism and democracy throughout his whole life. Understanding and learning wholeheartedly from the West was crucial for the great Chinese transformation. Sun Yat-sen was deeply inspired by the Western political system in his drafting of the Constitution for the Republic of China. Though he tried to incorporate some Chinese elements, such as establishing the Supervisory Yuan and Examination Yuan, his design of the political institutions basically originates from the Western political framework which is based on check and balance. Though throughout the hundred years of history of the Republic of China, authoritarianism dominated a very long period, under the so-called junzheng (military rule) and xunzheng (guided rule) where power was only vested in the hands of the Kuomintang, eventually the political institution entered into the final stage, constitutionalism and constitutional democracy, in 1988. However, in China since the May Fourth Movement in 1919, intellectuals were divided on whether “enlightenment” (qimeng) or educating the masses was in the first priority, or whether “rescuing” (jiuwang) the nation from the oppression of Western imperialism was more important. Eventually the second trend prevailed over the first in affecting the thoughts of many intellectuals, and this provided the necessary cultural and social background for the rise of the CCP. As a result, the Western ideas of liberalism and democracy were unable to grow in China, while the CCP and the Chinese communist political culture started to become more influential during the revolutionary stage. After 1949, authoritarianism under one-party dictatorship helps shape and consolidate the “Chinese” conceptions of human rights. How can the EU convince China of the universalistic value of the Western human rights ideas?

Balducci has elaborated on the limits of normative power Europe in fostering amelioration of human rights in China, due to the complexity of a multi-level governance in the EU. The European international actorness is a dynamic combination of three types of policy emerging from the Common Foreign Security Policy (CFSP), the EC, and the individual member states (Balducci, 2010: 35-55). He emphasizes that institutions “do matter in the definition and shaping of member states’ interests and policy preferences … [as] internally, institutions matter because they favour processes of socialization … externally, institutions matter for their filtering of external pressures from outside of the EU” (Balducci, 2010: 39). However, the UNCHR annual meetings on human rights of China demonstrated that though the EU member states strived to achieve a unified position at the CFSP level, they started to have difficulties since 1996 as France and Germany had much stronger strategic and economic interests in China than other EU countries especially the Nordic ones. Eventually in 1998 they agreed that no EU member state would table a resolution against China, but they would vote against no-action motions (Balducci, 2010: 43). Under the pretext of a more constructive, subtle, and effective approach, the EU opted for a foreign policy output that considers the dynamics of the CFSP, rather than straightforward promotion of human rights in China. So Balducci’s diagnosis is quite simple: “[T]he interaction of member states and EU institutions interests within the European foreign policy-making system has not brought about a normative convergence” (Balducci, 2010: 53), thus the EU appears to be weak in promoting human rights in China.

The second level of analysis is the EC, which used to play a more conciliatory role than individual member states concerning human rights in China. This is determined by its bureaucratic interests. “The Commission …  defus(ed) the confrontational charges of human rights and de-linking them from trade … it Europeanized the stances of those member states, in particular Germany, France … that had major economic interests towards China” (Balducci, 2010: 47). In reality, the EC is responsible to deliver the projects vested with large grants. Major projects like the legal and judicial cooperation program (LJC) and the Village Governance Training Program (VGT) are mainly technical in nature. The grants of LJC are used to train legal professionals. However, it is legitimate to ask the question whether the program is really effective in improving the human rights conditions in China, as all the legal professionals cannot remain really independent from the regime, when issues relating to civil and political rights are at stake. Those independent-minded weiquan lawyers who dare to defend the suppressed minorities or Falungong people were even “de-registered” by the local authorities, or they were simply arrested.

Indeed, it is obvious that the EC adopts a “carrot and stick” approach if dialogue is used to promote human rights and rule of law in China. Financial and technical support, as well as diplomatic pressure, are needed for the policy to be effective (Timmermann, 2008: 164). But the EC owing to its nature is only entitled to deliver great plans and subsidize these projects. For instance, in the European Instrument for Democracy and Human Rights (EIDHR) Strategy Paper 2011-13, the objectives of the response strategy are:

  1. Enhancing respect for human rights and fundamental freedoms in countries where they are most at risk;
  2. Strengthening the role of civil society in promoting human rights and democratic reform, in supporting the peaceful conciliation of group interests and in consolidating political participation and representation;
  3. Supporting actions on human rights and democracy issues in areas covered by EU Guidelines, including on human rights dialogues, on human rights defenders, on the death penalty, on torture, on children and armed conflict, on the rights of the child, on violence against women and girls, and combating all forms of discrimination against them, on International Humanitarian Law, and on possible new guidelines;
  4. Supporting and strengthening the international and regional framework for the protection and promotion of human rights, justice, the rule of law, and the promotion of democracy;
  5. Building confidence in and enhancing the reliability and transparency of democratic institutions.

A grant of €105 million is delivered during the period for the numerous projects. However, how these numerous plans and initiatives could help in transforming the political culture as well as the domestic institutions of other countries so as to improve their human rights conditions is a question that remains unresolved.

Conclusion

Safeguarding the national sovereignty of China is no longer a problem today, as China is rapidly becoming one of the major powers. The conventional CCP logic is that only after national sovereignty is secured can individual rights be safeguarded. A rising power with growing confidence should embark on the critical issue of how to respect the human rights of its people. Further revisions of the Constitution are crucially needed.

However, any useful discussion about the human rights situation in China should not put aside the most essential component of Chinese politics, that is, the one-party rule of the CCP. Chinese leaders are proud to say that the nation is governed according to the principle of “rule by law,” and “rule of law,” though a long-term goal, could gradually and eventually be achieved. However, if rule of law is a result of constitutionalism, it cannot be achieved when we only have equality of people under one-party rule. In other words, when law is used as a political instrument by the CCP to maintain and consolidate its rule, how can the real rule of law be established? If the government and the people are not put on equal footing, constitutionalism can only be a dream.

The development of civil society and the rising consciousness of ordinary people regarding their own rights are both stimulating and beneficial to the nurturing of a society of equality and justice. Ordinary people who were never involved in politics decide to organize and voice their cause when their basic rights are infringed. This could be seen in the toxic milk powder incident after which many parents were determined to bring their cases to court, even though they were told not to launch actions that would subvert the stability of the nation. The leader of the movement whose baby also suffered from the melamine contaminated milk powder, Zhao Lianhai, was arrested and accused of seditious activities against the state. Similar reactions can be seen after the Sichuan earthquake, as the parents of the dead children are forced not to investigate into the source of problem of those poorly built school buildings that led to the deaths of so many children. The leading activist Tan Zuoren who was active in the investigation was sentenced to five years’ imprisonment. Up until now the full list of children that died has not yet been disclosed. With the rise of consciousness among the Chinese people regarding their political and civil rights, the EU should be more involved in the development of civil society in China. The EU has an EU-China Legal and Judicial Cooperation Program to strengthen the rule of law in China by training the legal practitioners and jurists of China. The EU should also seek to empower the civil rights of Chinese citizens at the grassroots level, thus the programs in this regard should be enlarged. The EU also issues its Guidelines on Human Rights Defenders, and pay special attention to those weiqun lawyers. However, even helping those NGOs could be difficult. Parallel to the annual Human Rights Dialogue is a Legal Dialogue seminar. The Berlin Dialogue seminar held in May 2007 was cancelled, due to Chinese opposition against the attendance of two NGOs invited by the EU. A number of international NGOs invited by the EU to participate in the Bred Dialogue seminar held in May 2008 decided to boycott it (European Council, 2008: 31).

Human rights in China might not necessarily affect inter-state relationship between China and the others. But other people may have a not-so-favorable view of China if human rights of individuals of such a growing power are infringed. International pressure could exert a certain degree of influence on the human rights conditions within China, as economic interdependence has bound China to the outside world. Granting MFN status without conditions during the early 1990s in exchange for the continual opening up of Chinese economy and ameliorating human rights conditions in China is considered as part of this strategy. Facilitating the integration of China into the international community would enable China to get access to international institutions and abide by the international norms, not only in the economic arena, but in the legal, social, and lastly, political arena. This would further foster changes within China by the transformation of domestic economic, social, legal, and political institutions. Though we are not totally pessimistic, human rights may come later than the others.