The Journal of Human Rights Vol

THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

CONTENTS

FEATURE 461 Study on the Rights to Subsistence and Development with Reference to the Origin of the Universal Declaration of Human Rights ��LI Junru

Focus 465 From the UN Charter and the Universal Declaration of Human Rights to Building a Community with a Shared Future for Human Beings — The Past, Present, and Future of International Human Rights Protection ��LIU Hainian

480 On the Making and Significance of the Universal Declaration of Human Rights �� LIU Jie

499 Dignity: the Overlap of the Universal Declaration of Human Rights and Traditional Chinese Culture ��ZHAO Jianwen

518 The Universal Declaration of Human Rights and the “Spirits” of Confucian Ethics ��HUANG Aijiao

Academic Monograph 532 The Right to Work of Chinese Ethnic Minorities: Replies to Concerns and Suggestions of the UN Human Rights Treaty Bodies ��LI Lei

545 The UN Convention on the Rights of Persons with Disabilities and China’s Protection of the Right to Education of the Persons with Disabilities ��XU Qiaoxian & WU Tian

561 The “Erga Omnes” of the Protection of Fundamental Human Rights and the “Complementary Protection” of Refugees Not Prescribed by the UN Convention Relating to the Status of Refugees ��SUN Xu

New Development 575 Experiences and Achievements in the Development of Human Rights in China in the Past 40 Years of Reform and Opening-up — A Summary of Viewpoints on the Seminar on Reform and Opening-up and the Progress of the Development of Human Rights in China ��WANG Xigen & CHEN Yan

NEWS-CLIPS (2018. 08 − 2018. 09) 591 News-Clips THE JOURNAL OF HUMAN RIGHTS Board of Honorary Editors

Chairman Qiangba Puncog China Society for Human Rights Studies Vice Chairmen FU Zitang  HUANG Jin  LI Junru  LU Guangjin  SHEN Yongxiang  XU Xianming Members BAI Guimei Peking University BAN Wenzhan China University of Political Science and Law FU Zitang Southwest University of Political Science and Law GONG Renren Peking University HUANG Jin China University of Political Science and Law LI Junru China Society for Human Rights Studies LU Guangjin China Society for Human Rights Studies QI Yanping Beijing Institute of Technology SHAN Chun China University of Political Science and Law SHEN Yongxiang China Society for Human Rights Studies WU Leifen China Society for Human Rights Studies XIA Yinlan China University of Political Science and Law XU Xianming China University of Political Science and Law ZHANG Aining China Foreign Affairs University ZHANG Wei China University of Political Science and Law ZHANG Xiaoling Party School of the Central Committee of CPC (National Academy of Governance) ZHANG Yonghe Southwest University of Political Science and Law ZHU Liyu Renmin University of China

Board of Editors

Editor-in-Chief LU Guangjin China Society for Human Rights Studies Managing Editor-in-Chief ZHANG Wei China University of Political Science and Law Directors of Editorial Office ZHANG Wei  REN Danhong Editors LI Ruoyu  LIU Xiaonan  WANG Liwan  YAN Zihan  YANG Bochao THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

Study on the Rights to Subsistence and Development with Reference to the Origin of the Universal Declaration of Human Rights

LI Junru*

I. The History of the Drafting of the Universal Declaration of Hu- man Rights: the Position and Role of the UN Economic and Social Council and the General Assembly of the United Nations should not be Ignored The reason for me to use the term “source”in the discussion on the right to subsistence and the right to development is mainly to draw attention to a basic fact: the Universal Declaration of Human Rights was drafted by the United Nations Commis- sion on Human Rights (UNCHR) under the leadership of the UN Economic and So- cial Council. As we all know, the Universal Declaration of Human Rights was drafted by UN- CHR, which is a secondary body of the United Nations and one of the functional commissions of the Economic and Social Council and the General Assembly of the United Nations. The United Nations has six principal organs while founded: the General Assembly; the Security Council; the Economic and Social Council; the Trusteeship Council; the International Court of Justice; and the UN Secretariat. The Economic and Social Council of the General Assembly of the United Nations (ECOSOC) is one of the six principal organs under the UN Charter. It has four major functions: First, it may make or initiate studies, reports and constructions with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned. Second, it may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. Third, it may prepare draft conventions for submission to the UN General Assembly, with respect to matters falling within its competence. Fourth, it may call, in accordance with the rules prescribed by the United Nations, international conferences on matters falling within its competence. At the beginning, it should coordinate 14 specialized agencies, 10 functional commissions and five regional commissions for the work on economy, society and related works. It used to be the primary organization in the United Nations for handling issues relevant to human rights before the founding of the UN Human Rights Council in 2006. Meanwhile, it provided aid for the work of the UN Office of the High Commis-

* LI Junru ( 李君如 ), Vice-president of the China Society for Human Rights Studies, former Vice-President of the Party School of the Central Committee of C.P.C. 462 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 461 sioner for Human Rights. The Universal Declaration of Human Rights was drafted under the leadership of ECOSOC and adopted by the UN General Assembly. UNCHR is one of the 10 functional commissions under ECOSOC, which was established in 1946 according to Chapter 68 of the UN Charter to be in charge of the drafting of the Universal Declaration of Human Rights. It should be noted that UNCHR enjoys very high status in the United Nations because its foundation was included in the document for the establishment of the UN. It plays an important role in the ECOSOC. In March 2006, the UN General Assembly adopted the proposal to establish the Human Rights Council with the vote of the overwhelming majority, ending the mission of UNCHR. Mr. Peng Chun Chang participated in the drafting of the Universal Declaration of Human Rights as a representative from China. He has served as permanent representative of the ECOSOC, vice president of the United Nations Commission on Human Rights (UNCHR) and the vice president of the drafting committee of the Uni- versal Declaration of Human Rights. His election as the vice president of UNCHR comes from the wide recognition of his outstanding performance in the ECOSOC. In particular, his three speeches at the ECOSOC were extremely impressive. In the first speech, he quoted the sentence of Mencius that “let a prince seek by his excellence to nourish men, and he will be able to subdue the whole kingdom” to clarify the task of ECOSOC. In the second speech, he proposed to declare war on bacteria causing many human diseases and plague with the establishment of the World Health Organization (WHO). In his third speech, he proposed that the world should be considered as a whole and appropriate attention should be given to the economically underdeveloped areas. These speeches are still of great value today. What were the themes of these speeches? The right to subsistence and the right to development. I hope to get the attention of one basic fact through mentioning the role of ECOSOC, the relationship between ECOSOC and UNCHR and the connection between Mr. Peng Chun Chang’s speeches at ECOSOC and his election as the vice president of UNCHR: considering the source of the Universal Declaration of Human Rights, the UN put the human rights issue under the framework of economic and social development at the very beginning. II. The Contribution of Chinese Civilization to the Universal Decla- ration of Human Rights: Emphasizing the Protection of the Right to Subsistence and the Right to Development The discussions on Mr. Peng Chun Chang’s contribution to the Universal Decla- ration of Human Rights are mostly focusing on his outstanding work to integrate elements of Chinese civilization into the classic of human rights. I agree with this point very much. Here, I would like to stress that his third speech at ECOSOC is the essence of his thought on human rights and the context of his work for the drafting of the Universal Declaration of Human Rights. In this speech, he paid great attention to the issue related to development of underdeveloped countries and regions. The highlight of his speech was the last part in which he set out the most striking opinions of the Chinese on human rights. In this part, he introduced the human rights thought in the Confucian 2018] STUDY ON THE RIGHTS TO SUBSISTENCE AND DEVELOPMENT 463 WITH REFERENCE TO THE ORIGIN OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS classic Liyun of the Book of Rites. “When the Grand course was pursued, a public and common spirit ruled all under the sky; they chose men of talents, virtue, and ability; their words were sincere, and what they cultivated was harmony. Thus men did not love their parents only, nor treat as children only their own sons. A competent provision was secured for the aged till their death, employment for the able-bodied, and the means of growing up to the young. They showed kindness and compassion to widows, orphans, childless men, and those who were disabled by disease, so that they were all sufficiently maintained. Males had their proper work, and females had their homes. (They accumulated) articles (of value), disliking that they should be thrown away upon the ground, but not wishing to keep them for their own gratification. (They laboured) with their strength, disliking that it should not be exerted, but not exerting it (only) with a view to their own advantage. In this way (selfish) schemes were repressed and found no development, and rebellious traitors did not show themselves, and hence the outer doors remained open, and were not shut. This was (the period of) what we call the Grand Union.” It is said that this part is the Chinese declaration of human rights and it makes sense. Chang cites this part of the Chinese classic to clarify that the Economic and Social Council and the General Assembly of the United Na- tions will care for everyone to have a happy and healthy life. Meanwhile, it shows that the most important human rights are the right to subsistence and the right to development and economic, social and cultural rights as subsidiary rights. On the afternoon of May 26, 1948, the 46th meeting of the third session of the UNCHR began the discussion on the drafting of the Universal Declaration of Human Rights. On May 3, 1948, several days before meeting, the Chinese delegation submitted the China Proposal for the Universal Declaration of Human Rights. The draft proposal covered ten points. The first three points included: Article 1, everyone has the right to life. Article 2, everyone has the right to freedom of conscience and belief, freedom of assembly and association as well as freedom of information, speech and expression. Article 3, everyone has the right to a decent life and the right to work and leisure, health, education, and economic and social security. From the proposal of the Chinese delegation, it can be seen that the Chinese stress the protection of such rights as life, conscience, freedom, life, work, leisure, health, education, economy and social security in terms of human rights. After the Universal Declaration of Human Rights was finally adopted, it can be seen that all these positions have been included. Therefore, the major contribution of the Chinese civilization to the Universal Declaration of Human Rights was to emphasis the importance of respecting and protecting the right to life and the right to development. III. My Logical Thinking: the Logic and Cognitive Order of Human Rights In the exploration of human rights theories with the basic theories of historical materialism in Marxism and considering my understanding from the source of the Universal Declaration of Human Rights, especially the basic thought of Chinese civilization in human rights from the contribution of Mr. Peng Chun Chang to human rights, it is worthwhile to pay attention to one point. 464 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 461

In the field of human rights theory, the development of human rights thoughts in the world is generally divided into “three generations”. It makes sense. The so-called “three generations of human rights” actually reflect the three stages of development in the recognition of human rights. However, there is no superiority among the three generations and it is not necessary for every country to follow the same order to promote human rights protection. Meanwhile, it is not proper to take the path and basic points of Western countries on human rights issues as the only criteria for the human rights cause in the world. China has taken a different path in development of human rights from that of the Western countries. Therefore, we should not simply take the “three generations” theory as the principle and guideline for promoting China’s human rights career. At this point, it is necessary to further discuss whether the cognitive order of human rights is the inherent logic of human rights. Cognitive order belongs to cognition. Judging from actual process of the formulation of the Universal Declaration of Hu- man Rights, the cognition of human rights is always subject to the constraint of multiple factors such as individual religious belief, political system and economic status. It was wise of Mr. Peng Chun Chang to use his view of culture pluralism to resolve contradictions. Nevertheless, the deep-seated problems of human rights could not be solved merely from the perspective of cognition. Today, we should think about human rights from a higher position. Human rights are the rights of human beings for being human. What rights should be protected from one’s birth? It is the right to life. Meanwhile, clothing, food, shelter, and transportation should be provided for the subsistence of life, so we should produce everything needed to support one’s life. This the starting point for the logic of human rights. What are the human rights to be respected and protected at this logical starting point? It is the right to subsistence and the right to development. Other rights for human beings, like economic, social and cultural rights, as well as civil and political rights, are created in the maintenance and protection of the right to subsistence and the right to development. What is the problem we are discussing here? It is the logic of human rights itself. Of course, the logic of human rights is presented in diversified forms in the process of development due to various factors. In any case, the cognitive order is not equal to the inherent logic of human rights. The discuss on the difference between the inherent logic and cognitive order of human rights is for construction of a better and scientific human rights theory system to promote the development of human rights career in China. (Translated by HU Liang) THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

From the UN Charter and the Universal Declaration of Human Rights to Building a Community with a Shared Future for Human Beings — The Past, Present, and Future of International Human Rights Protection

LIU Hainian*

Abstract: The UN Charter first of all affirmed the basic concept of international protection of human rights and opened up a broad space for international protection of human rights. The Universal Declaration of Human Rights is an important document in the development of the international human rights cause. It established a set of international standards for basic human rights, represents the world’s most important consensus on human rights, and contributes greatly to the creation of an international human rights legal system. The important theory put forward by President Xi Jinping to build a Com- munity with a Shared Future for Human Beings, as a Chinese program for today’s global major issues, also outlines a new blueprint for national human rights protection and will play a major role in promoting the development of China’s human rights and international human rights protection. Keywords: Universal Declaration of Human Rights  UN Charter  international human rights protection  a Community with a Shared Future for Human Beings

In 2018, the world celebrated the 70th anniversary of the Universal Declaration of Human Rights, which was adopted by the United Nations General Assembly on December 10, 1948. Legally based on the UN Charter, the Universal Declaration of Human Rights (Declaration) is a result of the development of the principles of human rights protection in the UN Charter. It is also an important part of the world’s documents on human rights and a fundamental component of the world’s human rights legal system. The birth of the Declaration opened a new chapter in the international human rights cause and has played a historic role in international human rights protection for over half a century. “Building a Community with a Shared Future for Human Beings”, a concept proposed by President Xi Jinping, is a leap-forward development

* LIU Hainian ( 刘海年 ), Honorary Member of the Chinese Academy of Social Sciences, and Distinguished Professor of the Institute for Human Rights, China University of Political Science and Law. 466 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 465 for the new era of the basic principles of safeguarding international peace and security and protecting human rights in the UN Charter and the Universal Declaration of Human Rights, and outlines a new blueprint for international human rights protection. It plays a new and important role in further promoting China’s human rights development and international human rights protection. I. The UN Charter First Recognized the Concept of International Protection of Human Rights Essentially, in initial stages of humanity, people strived for survival out of in- stinct. In the long age of barbarism, people did not have a clear sense of rights, and could not form a clear concept of rights. After entering the civilized era, this awareness of rights has gradually emerged with the development of society and is reflected in different forms of demands among different groups and classes. All ethnic groups follow generally the same route. The concept of human rights was proposed by early modern enlightenment thinkers after the Renaissance in medieval Europe against theocracy and feudal monarchy. In bourgeois revolutions, human rights, along with democracy and freedom, served as a slogan against feudal rulers. After the bourgeoisie seized political power, although human rights were confirmed in a legal form, they were not implemented in reality. As Karl Marx pointed out, “bourgeois ownership is declared as one of the most important human rights.”1 The bourgeoisie used the political powers to deprive the rightful rights of workers and peasants who had been allies of the bourgeoisie in the fight against the feudal royal families and the lords, deprived the colonial peoples of their rights, and restricted the rights of women of their own class. Taking the rights of women to participate in public affairs as an example, British women were granted parliamen- tary suffrage as late as in 1918. The start of women’s suffrage in the United States varied from state to state and nationwide women’s suffrage started in 1919. Women’s suffrage in France started in 1944 when Charles de Gaulle signed a decree during the interim government period. The United Kingdom, the United States, and France have successively granted women the right to vote and lifted restrictions on the qualifications of male citizens to participate in elections. This indicates that more people enjoy a wider scope of human rights. This is the result of the long-term struggle of the masses and is closely related to the influence of the two World Wars of the last century. The First World War began in 1914. The war was mainly a result of the colonial powers — Great Britain, France, Germany (the Austrian-Hungarian Empire) and other colonial powers — fighting for control of their colonies. The United States and Turkey later joined different sides in the War. The War was mainly fought in Europe and also affected more than 30 countries in West Asia, North Africa and Far East, involving a population of 1.3 billion, accounting for about 75 percent of the world’s total population at that time and causing more than 40 million casualties. In Western countries, the Second World War is generally believed to have begun in 1941. How- ever, the War started much earlier than that if we consider German fascist aggression

1. Karl Marx and Frederick Engels, Selected Works of Karl Marx and Frederick Engels, vol. 3 (Beijing: People’s Publishing House, 1960), 406. 2018] FROM THE UN CHARTER AND THE UNIVERSAL DECLARATION OF 467 HUMAN RIGHTS TO BUILDING A COMMUNITY WITH A SHARED FUTURE FOR HUMAN BEINGS against its neighbors and the Japanese militaristic war against China. The Anti-Fascist War actually began as early as the September 18, 1931, when the Japanese attacked the North Camp in Shenyang. World War II was fought between the Axis Powers of Germany, Italy and Japan and the Allied Powers of China, the Soviet Union, the United Kingdom, the United States, and France on Asian and European battlefields, involving more than 80 countries. Germany sent Jews, regardless of gender and age, into concentration camps, and put them into gas chambers and crematoriums. Six million Jews were massacred. The Japanese army used chemical weapons in tests using live humans as subjects in China and Southeast Asian countries, widely recruited comfort women, and in Nanjing alone massacred as many as 300,000 prisoners of war and civilians. The Japanese army carried out indiscriminate bombing and implemented the policy of “burn all, kill all, and seize all” wherever they went. Cities were laid to waste, and villages became uninhabited areas. In World War II, 27 million people were killed in the Soviet Union and 10 million injured. The numbers for China were more than 20 million and 15 million, respectively. With the deaths and injuries in other invaded countries and the victimizing countries, the total number of casualties reached more than 100 million people, accounting for about one-twentieth of the world’s total population at the time. During the two World Wars, especially the Second World War, the brutal atrocities of Germany, Italy, and Japan outraged the peoples of the world. This also awak- ened their conscience and aroused the strong desire for peace, security and human rights. These wars also enhanced the consciousness of more people, nations and countries for national independence, national sovereignty and people’s liberation. It was against this background that the UN Charter, signed in June 1945, declares: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.” In order to achieve the above objectives, while emphasizing in the main text the maintenance of international peace and security and the promotion of global economic, social and cultural development, the UN Charter also stresses the protection of human rights. In addition to the Preamble referred to above, Article 1, Article 13 (paragraph 1), Article 55 (paragraph 2), Article 62 (paragraph 2), Article 68, and Article 76 of the main text of the UN Charter directly emphasize from different angles a universal respect for human rights and fundamental freedoms regardless of race, gender, language, and religion. Many other articles of the UN Charter also contain content on human rights. In particular, in order to promote economic, social and cultural development and human rights protection, Article 68 states: “The Economic and Social Coun- cil shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions.” This Article clearly provides for the establishment of the Commission 468 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 465 on Human Rights and other organizations, which provides a basis for the subsequent establishment of the Human Rights Commission and the formation of an international human rights legal system based on the Universal Declaration of Human Rights. The above provisions show that the UN Charter was the first international law document that affirms the international protection of human rights. When the UN Charter was being drafted and adopted, China was still in the period of cooperation between the Kuomintang (K.M.T) and the Communist Party of Chi- na (C.P.C). Dong Biwu, an important founder of the CPC, was a member of the Chi- nese delegation to the United Nations. He participated in the inaugural meeting of the UN and participated in the formulation of the UN Charter. On June 24, 1945, when Chairman Mao Zedong spoke of diplomatic issues in the political report of the 7th CPC National Congress, he pointed out: “The basic principle of the CPC’s foreign policy is to establish and consolidate diplomatic relations with other countries, and solve all the problems of mutual relations on the basis of thoroughly defeating the Japanese aggressors, maintaining world peace, respecting each other’s national independence and equality, and enhancing the interests of China and her people.” Regarding the establishment of the UN General Assembly and post-war institutions for safeguarding international peace and security, he said: “The Communist Party of China welcomes the San Francisco Conference. The Communist Party of China has sent its own representative to join the Chinese delegation to the San Francisco Conference to express the will of the Chinese people.”2 During the drafting of the UN Charter, the Chinese delegation proposed a series of constructive motions. For example, that international disputes must not be solved by force; all nationalities, regardless of their large or small, should be equal; the integrity and political independence of every country should be respected; the conditions and definition of aggression should be clarified; and safety and welfare should be ensured for trust territories (which are actually colonies), where education should be promoted so as to help them become independent countries as well as the Economic and Social Council should have stronger functions and promote international cooperation in education and culture.3 The Chinese delegation insisted that all nationalities, regardless of whether they are large or small, strong or weak, are equal and stressed that the so-called trust territories would be autonomous until they became countries with complete national independence. This idea, directly related to the history of the Chinese people as victims of long-time aggression and exploitation by imperialism and colonialism and to the reality of existing aggression, reflected the aspirations of the peoples of colonies. However, due to British, French and US interests in their colonies, Article 76 of the UN Charter reads “The basic objectives of the trusteeship system, [...] shall be [...] to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence”. This Article is clearly much

2. Mao Zedong, Selected Works of Mao Zedong (one-volume edition) (Beijing: People’s Publishing House, 1944), 1085. 3. Hua Guoyu, China’s Contribution to the International Human Rights Cause: Peng Chun Chang and the Uni- versal Declaration of Human Rights (Beijing: China University of Political Science and Law Press, 2015), 90- 91. 2018] FROM THE UN CHARTER AND THE UNIVERSAL DECLARATION OF 469 HUMAN RIGHTS TO BUILDING A COMMUNITY WITH A SHARED FUTURE FOR HUMAN BEINGS weaker than China’s proposition. This was gradually affirmed in relevant international human rights law documents such as the Universal Declaration of Human Rights with the end of World War II and the rise of the national movement. Despite the shortcomings of the UN Charter in this regard, it is still the first document to affirm the international protection of human rights and thus has significant historical progress. II. The Universal Declaration of Human Rights was a Milestone in the Development of Human Rights As mentioned earlier, before the First World War, human rights were affirmed legally in some countries, but only in one-sided and incomplete formed and only within a certain country. This, however, had virtually no impact at least on those colonial powers and made no changes to the world reality even after the end of the war. The First World War and then the Second World War were on a bigger scale and more hor- rendous than any before. This made people realize that, since war and massacre were beyond national borders when it came to human rights, it was not possible for a single country to stop such atrocities, which meant that human rights must be protected legally by international organizations. This was why some countries had proposed the motion of including a “Bill of Rights” in the UN Charter before its drafting even started. The motion was not adopted at the San Francisco Conference because at the time war in Asia was still being fiercely fought and the time available for establishing the United Nations was limited.4 This work could only be undertaken by the Commission on Human Rights under the UN Economic and Social Council. The legal basis for the Universal Declaration of Human Rights is the UN Char- ter. According to Article 1 of the Charter, “The Purposes of the United Nations are to maintain international peace and security [...].” Its purpose, as explained in the Pream- ble to the main text, is to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”. It can be seen that the fundamental purpose of the establishment of the United Nations is ultimately for people and for human rights protection. It can be said that the provisions of the UN Charter on the principles, organization, economic and social development, dispute settlement, crisis response, and operational procedures for all work towards the realization of this purpose. In accordance with the special provision of Article 68, the United Nations established the Commission on Hu- man Rights composed of 18 member states in June 1946. The Commission provided organizational basis for the birth of the Universal Declaration of Human Rights and its activities. At the first meeting of the Commission on Human Rights from January to February 1947, it was decided that Eleanor Roosevelt (United States), chairman of the Commission, Peng Chun Chang (China), vice-chairman, Charles Malik (Leba- non), the rapporteur, and John Humphrey, director of the division of human rights and secretary of the Commission formed a drafting group. In March 1947, as required by the development of the situation and the drafting work, Australia, Chile, France, the

4. Liu Jie, The United States and International Bill of Human Rights (Shanghai: Shanghai Academy of Social Sciences Press, 1996), 50. Sun Pinghua, Research on the Universal Declaration of Human Rights (Beijing: Peking University Press, 2012), 74. 470 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 465

Soviet Union and the United Kingdom each sent a representative to join the group, which was later decided to be renamed as the Drafting Committee. Because the Uni- versal Declaration of Human Rights has a great impact on the cause of international protection of human rights, many experts have continuously researched into it after its birth. Works including Chinese scholar Professor Sun Pinghua’s The Study of the Universal Declaration of Human Rights, Peng Chun Chang: A Key Architect of the World Human Rights System and Professor Hua Guoyu’s China’s Contribution to the International Human Rights Cause: Peng Chun Chang and the Universal Declaration of Human Rights, while providing a large amount of material, make a more comprehensive evaluation for the first time in China’s research in this area of the historical background of the birth of the Declaration, the drafting process, the contribution of Chinese representative Peng Chun Chang and the representatives of other the countries who participated in the drafting process, as well as its contents and significance. According to the text of the Declaration, combined with the research results of the human rights and international law scholars who have studies the Declaration, we can see that: First, the Universal Declaration of Human Rights is a comprehensive development of the provisions of the UN Charter that considers human rights protection from the perspective of all human beings, and affirms humans are the subjects of human rights in their original sense. As pointed out above, modern enlightenment thinkers have put forward the concept of human rights as opposed to theocracy and feudal monarchy. They propose that people are a universal concept. However, after the bourgeois revolution triumphed and the bourgeois class seized political power, the bourgeois class affirmed the rights of the majority only in principle, but denied and restricted them in reality. As for the slaves and the peoples of colonial and semi-colonial countries, they were regarded as aliens. The legal provisions on democracy and freedom have thus become merely empty talk. Based on the development of the situation, the UN Charter fully affirmed people and their rights. The Declaration affirmed this again and made it clear and concrete. Facing the world and all human beings, the Preamble to the Universal Declaration of Human Rights states the Declaration is “a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.” Here, the Declaration emphasizes that the standard of human rights protection be universally recognized and obeyed by all people, everyone in every country, every organization, and the people of a country and the territories under their jurisdiction (i.e., colonies). In addition, the provisions of the main text after the Preamble, all those involving human rights protection are affirmed and expressed using group words such as “all human beings”, “any” and “everyone” and all the provisions that prohibit the infringement of human rights are denied also using such group words. Such expressions in the Preamble and the main text are not repetitive language, but serve as an accurate decla- 2018] FROM THE UN CHARTER AND THE UNIVERSAL DECLARATION OF 471 HUMAN RIGHTS TO BUILDING A COMMUNITY WITH A SHARED FUTURE FOR HUMAN BEINGS ration to the world that the enjoyment of human rights is universal for all the people in the world. Second, the Declaration affirmed civil and political rights and economic, social and cultural rights with equal and non-discriminatory principles. From the history of human rights development, the concept of human rights, which was first promoted from a mere idea to part of the law, in Britain’s Habeas corpus Act of 1679, America’s Virginia Declaration of Rights of 1786, or France’s Déclaration des Droits de l’Hom- me et du Citoyen of 1789 (included in the French Constitution of 1793), all deal with civil and political rights, traditionally also known as the first generation of human rights in the academic community. Although these rights are actually limited, they are at least legally regulated. The economic, social and cultural rights that involve most people (known as the second generation of human rights in the academic community) have not yet been part of legislature. “Food is the paramount necessity of the people.” Satisfying the minimum standards for maintaining life, such as food, clothes, housing, and traveling, is the prerequisite for the enjoyment of human rights. The economic, social and cultural rights of workers and peasants at the lower levels of society are not protected, which necessarily cause social and ethnic divisions and political instability. In the waves of people’s struggle for their rights, the bourgeoisie began to understand this home truth. Economic, social and cultural rights have gradually been legally affirmed. In Mexico and Germany, due to the stronger power of workers as a class, the 1917 Mexican Constitution and the 1919 Weimar Constitution first recognized citizens’ labor rights, education rights, work rights, property rights, copyrights, and invention rights and provided for state relief for the unemployed and the lives of the elderly and the disadvantaged.5 After the “October Revolution” of 1917 in Russia, the Soviet Russia’s Constitution and constitutions of other socialist countries further affirmed this right. The Universal Declaration of Human Rights clearly affirmed civil, political and economic, social and cultural rights, thus laying the foundation for the formulation of the two human rights covenants of 1966. The Preambles to the two covenants both affirmed the importance of the protection of first and second generations of human rights using the same language. They only differed according to the content of the respective Convention in which civil and political rights, and economic, social and cultural rights were emphasized but in different orders. This shows that the Declaration as a development of the UN Charter is not only reflected in the expansion of the scope of subjects in human rights, but also in the wider variety of human rights themselves. Third, the Declaration is a collection of multicultural elements, to which Mr. Peng Chun Chang, the representative of China, made an important contribution. The Preamble of the Declaration has clearly stated that the savage atrocities committed against humanities in the two World Wars as a development of contempt for human rights have resulted in fear and deficiency that stigmatize human conscience. This has made it the earnest desire of the people to enjoy human rights, personal dignity and

5. The author would like to provide gratitude to Wang Cuiwen, Associate Professor of Nankai University and Dr. Han Han of Chinese Academy of Social Sciences, who provided information and materials on the provisions of the Mexican Constitution on economic, social and cultural rights. 472 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 465 protection by the rule of law after the wars. The formulation of the Universal Declara- tion of Human Rights is precisely to promote social progress, improve people’s lives, and protect human rights in a universal and effective manner. The Declaration shows that human rights protection is the desire and demand of social development by the peoples of the world. This desire and demand come not only from capitalist countries, but also from socialist countries and colonial and semi-colonial countries. They have different social systems, levels of development, history, culture and religion, although they are all members of the United Nations. Their representatives sat together to develop a document that is universally applicable throughout the world for the pursuit of the goals of world peace, human liberty, happiness, and human rights. To this end, it is necessary to draw on different cultures when drafting general principles and specific provisions and to make necessary compromises to integrate different viewpoints in order to reach a consensus. This requires a consensus within the Drafting Committee, within Commission on Human Rights, and all or at least a majority of the representatives of the member states before they can reach the agreement to draft the Declaration. The drafting process was challenging and complicated. Mr. Peng Chun Chang, the representative of China, made an outstanding contribution to the drafting, which Professors Sun Pinghua and Hua Guoyu have systematically examined in their works and Professors Cui Guoliang and Cui Hong have analyzed in their Mr. Peng Chun Chang on Education and Drama Art. What needs to be added here is that, when drafting the Universal Declaration of Human Rights, with superb organization and leadership, Mr. Peng Chun Chang not only drew on his rich knowledge and love for Confucianism-centered Chinese traditional culture and incorporated its essential part into the Declaration, but also respected Western and Islamic culture with a modest attitude, and promoted the integration of multicultural elements in the Declaration. His style won praise from representatives of other countries he worked with. In the autumn of 1991, when my colleague and I visited North America, at a symposium in Montreal, we met Mr. John Humphrey, the former Director of the Division of Human Rights and Secretary of the Commission, who drafted the Dec- laration together with Peng Chun Chang. He recalled Mr. Peng Chun Chang with a very respectful and affectionate tone, praising him for his profound knowledge and his ability to use the Confucian concepts of “benevolence” and “harmony” to handle the relationship with his colleagues and to resolve many disagreements arising from the drafting process. He said that the representatives who participated in the drafting were from countries with different historical and cultural backgrounds and different ideas and concepts and this often resulted in disagreements on some issues, which Peng Chun Chang could always help bridge. Sometimes, when they could reach no agreement and the work could not be continued, them he would suggest to Mrs. Roo- sevelt that they stop to learn the golden mean advocated in Confucian philosophy and thinking and urge the two sides to listen to each other’s opinions and suggestions, and learn from each other’s strengths. Thanks to the efforts of him and other colleagues, the disagreements were resolved one by one and the drafting work continued until it was successfully completed. Mrs. Roosevelt, who presided over the drafting work, spoke highly of Peng Chun Chang’s talent and his organization and leadership in the 2018] FROM THE UN CHARTER AND THE UNIVERSAL DECLARATION OF 473 HUMAN RIGHTS TO BUILDING A COMMUNITY WITH A SHARED FUTURE FOR HUMAN BEINGS drafting work. In the mid-1990s, I met Susan Roosevelt Weld, granddaughter of Mrs. Roosevelt in Beijing. When talking about the Declaration and her grandmother’s contribution, she also praised Mr. Peng Chun Chang. It can be seen that Mr. Chang’s contribution to the Universal Declaration of Human Rights had a profound influence. It is precisely because of the unremitting efforts of Peng Chun Chang, Mrs. Elena Roosevelt, Charles Malik and John Humphrey that the multiculturalism of the Dec- laration was made clear. Multiculturalism enhances the universality of the Universal Declaration of Human Rights and the human rights legal system based on it. Fourth, the Declaration is the basic document of the legal system of international human rights. In the Preamble to the Declaration, it states that “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, [...]”, in order to prevent human rights from being violated again, “it is necessary to protect human rights by the rule of law.” This passage shows that the Declaration attaches great importance to the protection of human rights by the rule of law. As mentioned earlier, however, in the previous stage of drafting it was hoped that a “bill of rights” could be made, and then a Declaration could be drafted while making a Convention with implementation measures. Finally, after the opinions were solicited on a larger scale, due to the urgency of time, only the Declaration was formulated.6 The Universal Decla- ration of Human Rights is more significant and plays a more important role than other general declarations, because it is not just an extension of the human rights principle of the UN Charter and adopted by the UN General Assembly, but also, more importantly, it is in line with the trend of international development after World War II, the independence and freedom of people of all countries, and their yearning for a peaceful and happy life, and proposes the rights protection standards that individuals, countries and international organizations should abide by. It can be said that it is a set of “general rules” of the international human rights legal system which has gradually formed, becoming the most basic document of international human rights law. It remains today an important basis for newly developed international human rights conventions and documents. III. Building a Community with a Shared Future for Human Beings is a New Blueprint for the Development of International Human Rights Cause The purpose of forming the United Nations, as proclaimed in the Preambles of the UN Charter and the Universal Declaration of Human Rights, is to “save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind” by German fascism and Japanese militarism, and unite the nations and peoples of the world to join hands to oppose any new aggressions, jointly defend peace and security, prevent people from falling into fear and want, and safeguard basic human rights, personal dignity and value. Unfortunately, although, with the support of the peoples of the world, the UN Charter and the Declaration have

6. Sun Pinghua, Research on the Universal Declaration of Human Rights, 74-84. Hua Guoyu, China’s Contribu- tion to the International Human Rights Cause, 134-145. 474 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 465 played an indelible historical role in accordance with their purposes, the world entered a state of Cold War soon after the end of World War II in 1945. Before that, the United States had been more open-minded on the issue of anti-colonialism in order to compete with Britain for global hegemony. However, in order to compete for the sphere of influence in the Cold War, in the face of the vigorous struggle of colonial and semi-colonial peoples for national liberation and independence, the United States did not hesitate to side with the old colonial powers, act as their backer, and provided people and material support. When the old colonial powers were unable to cope with the situations as in Indochina, the United States simply acted in its own capacity and publicly acted as a bully against national liberation movements, and waged wars of aggression against countries such as Vietnam, Laos and Cambodia. In addition, racism remains a problem even after slavery was abolished more than 100 years previously with the end of the American Civil War. The United States was also the most powerful supporter of South Africa’s white apartheid regime. The UN Charter and the Univer- sal Declaration of Human Rights state that all human beings are born free and equal in dignity and rights, regardless of race, color, religious and other differences. Howev- er, these countries turn a deaf ear and a blind eye to such human suffering and go their own way. In the early 1990s, when the Soviet Union disintegrated and some countries in Eastern Europe experienced drastic changes, the United States became the only su- perpower. It believed that it was the world hegemony and it intensified its efforts to instigate so-called “color revolutions” in other countries with different ideologies. In addition to secretly instigated revolutions, the United States and other countries have declared that human rights are the cornerstone of their foreign policy. But, in fact, they use double standards and even multiple standards to demonize societies of different systems, use economic and political means to contain these countries, and attempt to enforce the Western institutional model. When these measures do not work, they resort to bully tactics and openly launch armed incursions or wars. For example, in the Balkan region, the West first incited color revolutions to dismantle Yugoslavia, then bombed and divided Serbia by military means; in North Africa, it subverted the government of Libya; in Central Asia and the Gulf region, and it launched wars against Iraq and Afghanistan. Even today, the wars continue in Afghanistan and Syria. Where war is ravaging, the bustling city are laid to waste, the beautiful countryside becomes scorched earth, the precious cultural and historical relics are looted, hundreds of thousands of lives are killed, millions of people and civilians, young and old, are forced to leave their homes or drift across the sea, flee to foreign countries as refugees, creating major humanitarian crises. Eventually, the United Nations and regional international organizations and some countries have to be called in to clean up the mess. Even so, since the 1980s, by fabricating national human rights reports, the United States has blamed countries for so-called “human rights issues” in countries with different ideologies. In the new century, the United Nations established the Human Rights Council, which implements a regular universal review of the human rights situations of member states in accordance with the Constitution. The United States sees fit to review the human rights of other countries, but when its own violations of human rights are ex- 2018] FROM THE UN CHARTER AND THE UNIVERSAL DECLARATION OF 475 HUMAN RIGHTS TO BUILDING A COMMUNITY WITH A SHARED FUTURE FOR HUMAN BEINGS posed, it was so anger that it withdrew from the Human Rights Council after making an announcement. It is then obvious to see its hegemonic behaviors. As pointed out above, the formation of the United Nations, the enactment of the Universal Declaration of Human Rights, and a series of international human rights laws were originally intended to unite the countries and peoples of the world in joint efforts to safeguard world peace and security, promote common development and protect basic human rights. However, the United States, out of concern for its own interests, has been reluctant to stop bullying other countries and deviate from the basic principles of the UN Charter and the Universal Declaration of Human Rights. Especially, after President Donald Trump took office, he pursues an “America First” policy and violates the principles and rules of the WTO his country took the lead to build, and has unilaterally announced tariff increases on products imported from many other countries. In modern economic development, international division of labor means that a product is made, shipped, and finally sold to the consumers, which often involves an industrial chain composed of many countries. Unilaterally raised tariffs and destroyed industrial chains harm not only the workers of a certain country or a certain business, but also the workers of many enterprises in many countries. It is not only a tit-for-tat that benefits neither side, but involves a wider range of areas, slow- ing the development of the world economy, reducing employees’ income, increasing prices, worsening the burden on the people, and violating human rights. Unilateralism violates the basic spirit of the UN Charter and the Declaration. It has caused chaos in international order and brought harm to the international human rights cause. If this continues unchecked, it will undoubtedly endanger more countries and create a wider range of human rights disasters. The world today is very different from 70 years ago. Economic, scientific, and technological development, the widespread use of the internet, and the changes in the natural environment bring people both unprecedented opportunities and daunting challenges. Everyone lives in the global village and is each other’s neighbor as the distance between the countries and peoples has been greatly reduced. Through global governance, people can realize their potential, help others do so, and work together for common goals. This is not just a dream. It can be realized through hard work. This is a common cause of the peoples of all countries in the world. Big countries and developed countries should make greater contributions in accordance with the spirit of the UN Charter, the Declaration to the Right to Development, and a series of United Nations resolutions for development. History has proved that, in global governance, people always stand at the core and human rights are an eternal theme. Hot wars cause destruction while cold war cause division while trade war brings downward pressure on economic development or even results in stagnation. This deviates from the spirit of the Charter, the Declaration and many other international documents on human rights. We need to figure out a solution. President Xi Jinping has proposed to “build a Community with a Shared Future for Human Beings”, which draws a new blueprint for the international human rights cause. This concept, as its name implies, is to unite the peoples of the world, to proactively respond to the ever-changing natural world and the ever-evolving human society, to seek advantages and avoid disadvantages, 476 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 465 and to achieve universal harmony. President Xi Jinping has elaborated on the idea of “building a Community with a Shared Future for Human Beings”. First, we should insist on sovereign equality. The sovereignty and dignity of all countries, large or small, strong or weak, rich or poor, must be respected. No country should interfere in the internal affairs of another country. Every country has the right to choose social systems and development paths according to their own national conditions and accommodate each other’s core interests. Second, we should maintain common security. The security of each country should be respected and protected and a common, comprehensive, cooperative and sustainable security concept should be established. The world should work together to deal with the harm to human beings and nature caused by traditional and non-traditional security issues and maintain peace and security in various regions and across the world. Third, we should ensure common development. While pursuing self-development, a country should actively promote common development in cooperation with other countries. A country should not benefit itself at expense of others, stop zero-sum games, abandon the old thinking of “you lose, I win”, adopt the new concept of win-win or cooperation and mutual benefits, promote South-South cooperation, North-South dialogues, enhance the ability of developing countries to develop independently, and bring the fruits of development to everyone in every country in the world. Fourth, we should be tolerant and learn from each other. In our world, we have different races, religions and cultures and even contradictions. However, the good nature of human beings means that the commonalities exist between them. Civilizations are not distinguished between good and bad, just have different features. As long as civilizations learn from each other, their people can transcend civilizations through exchanges, avoid confrontations, and coexist with each other, understand, respect, and trust each other. This will drive social progress and maintain world peace. Fifth, we should adopt a green approach to development. Nature is where human live, work and develop. Earth is the only home of mankind. Protecting the natural environment and realizing the harmonious coexistence between man and nature offer best protection for human beings. We must help each other, share responsibility, and work together to address climate change, advocate green, low carbon, recycling, and sustainable development, protect the mountains and rivers and all living things, and safeguard the homeland on which humans depend. Sixth, we should safeguard equity and justice. We should jointly promote democracy in international relations, improve existing international human rights laws and relevant international rules of conduct, and promote the rule of law in international relations, “promote all the parties in international relations to abide by the basic norms of international relations recognized by international law, and use uniform and applicable rules to understand the truth, promote peace and seek development.”7 It can be seen from the above that Xi Jinping’s ideas and theories on a Com- munity with a Shared Future for Human Beings are a new plan for the revival of the

7. Xi Jinping, “Promoting the Five Principles of Peaceful Coexistence and Building a Win-Win World ‒ Speech at the Commemorative Meeting of the 60th Anniversary of the Five Principles of Peaceful Coexistence,” Peo- ple’s Daily, June 28, 2014. 2018] FROM THE UN CHARTER AND THE UNIVERSAL DECLARATION OF 477 HUMAN RIGHTS TO BUILDING A COMMUNITY WITH A SHARED FUTURE FOR HUMAN BEINGS Chinese nation and the happiness of all human beings, which is based on the efforts of several generations since the adoption of the UN Charter and the Declaration to build a legal system of world peace, security and human rights, guided by Marxism, inspired by history and contemporary experience, based on the situation of China and world, built on reality and designed for the future. In today’s modern world, there are some countries or some people disregarding the rules of international conduct, taking the interests of their own country as first above others’, staying in international organizations if they fit their ideas, but simply withdrawing from them if they do not, or obeying international agreements if they are in their own interests, but simply withdrawing from them if they are not. This has caused the world order to suffer. In this context, this concept of building a Community with a Shared Future for mankind is clearly an answer to the major question raised by our times. Due to the scientific nature of this idea, it has won approval from many countries, the United Nations, and many regional international organizations. It has become a new goal and new impetus to drive the development of the international community. As an advocate of the concept of building a Community with a Shared Future for Human Beings, China also actively promotes this concept in practice. In China, Xi Jinping and the Party Central Committee with Xi Jinping as the core have successively put forward the Chinese dream of realizing the great rejuvenation of the Chinese nation and proposed to “strive to build a community with a shared future for the Chinese nation.”8 China is a unified multi-ethnic country and has a specific social development reality. China insists that the right to life and development are primary human rights, economic, social and cultural rights are as important as civil and political rights, human beings should pay attention to ecological civilization and green economy development. China is determined to build a moderately prosperous society by the end of 2020 and achieve the great rejuvenation of the Chinese nation by the middle of this century. To achieve this goal, China is further changing the imbalance between different regions and between urban and rural development. As for regional imbalances in development, with the development of the Southeast, China tries to realize the rise of central China, the development of the western regions, and the rejuvenation of the old industrial bases in Northeast. According to the 13th Five-Year Plan (2016-2020), China will strengthen reform and opening-up in the border areas. China will make Northeast and Inner Mongolia into the hub for opening to northern neighboring countries and the hub for cooperation with Northeast Asia; the Xinjiang Uygur autonomous region will be made into a transport center for opening up to the western neighboring countries; the Tibet autonomous region will be made into a passage for opening up to South Asia; Yunnan province and Guangxi Zhuang autonomous region will be at the forefront of opening up to South Asia, Southeast Asia; and Hainan Prov- ince will be a free trade zone. In the future, provinces in Northeast and Southwest, and Hainan will become the corridors and hubs for economic and cultural friendly exchanges between China’s inland and dozens of countries in Asia, Europe, Africa and

8. Opinions of the Party Central Committee and the State Council on Strengthening and Improving Ethnic Work in the New Situation, run in Selected Works of Important Documents since the Eighteenth National Congress, vol. 2 (Beijing: Central Party Literature Press, 2016), 104. 478 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 465

Oceania. Cities there will become economically and culturally prosperous international metropolises. Also according to the 13th Five-Year Plan, China will further accelerate the development of rural and ethnic minority areas. As pointed out by the Party Central Committee and the State Council, development should focus on “improving people’s livelihoods as the primary task, prioritize poverty alleviation, focus on education, employment, industrial restructuring, infrastructure construction and ecological protection... make development work towards solving regionally common problems, promoting the well-being of the masses, enhancing national unity, and strengthening the harmonious coexistence, unity, and development of all ethnic groups.”9 Through the efforts of the Communist Party and the people of the whole country, the number of people living in poverty in China has decreased by 740 million from 1978 to 2017. However, there are still more than 30 million people in poverty in rural areas. The Communist Party and the State are determined to accelerate rural construction, overcome challenging difficulties, implement poverty alleviation measures of science and technology, education, and medical care, invest more manpower and material resources in implementing targeted and deep poverty alleviation. China is determined to lift more than 30 million rural people out of poverty by the end of 2020. By then, China’s nearly 1.4 billion people will have lived in a moderately prosperous society in all aspects including material and cultural rights, enjoy greater democracy, freedom, and equal rights, and thus realize the all-round development of human beings. This great achievement in human rights performance will go down in history as vast success. The great progress and success of China in building a community with a shared future for the Chinese nation further confirms the scientific nature of building a Com- munity with a Shared Future for Human Beings. Such a concept has already been and is having a wide-ranging impact on the international community. If China’s success provides a basis, then the countries and international organizations that agree with this idea might serve as fulcrum. We are not saying that other countries should copy the Chinese model in practice. Rather, we believe that if recognized by other countries and their people, the concept exert tremendous material power and more countries and international organizations will work together to seek benefits for the peoples and to meet the challenges. When building a Community with a Shared Future for Human Beings, identification with this concept is important, but common interests are more important. Interests are the foundation. A Community with a Shared Future for Human Beings is actually a community with shared interests for human beings. Following a principle of common interests, China has signed bilateral and multilateral agreements with many countries and international organizations on the basis of win-win, which has promoted the healthy development of economy and culture. This is not only the fulcrum of the concept of the community with a shared future for human beings, but also provides the platform for its development. The Belt and Road Initiative proposed by Xi Jinping and supported by China and many other countries serves this purpose. More than 100 countries and regional organizations around the world are actively supporting

9. Ibid., 106. 2018] FROM THE UN CHARTER AND THE UNIVERSAL DECLARATION OF 479 HUMAN RIGHTS TO BUILDING A COMMUNITY WITH A SHARED FUTURE FOR HUMAN BEINGS and participating in the Initiative, and the UN General Assembly and the Security Council have incorporated the initiative into their important resolutions. It will con- nect with development strategies of many countries along the Belt and Road routes, such as the Eurasian Economic Union (EEC) proposed by Russia, the Master Plan on ASEAN Connectivity 2025 proposed by the Association of Southeast Asian Nations, the Bright Road New Economic Plan proposed by Kazakhstan, the Middle Corridor Initiative proposed by Turkey, the Prairie Road Development Initiative proposed by Mongolia, the North-South Economic Corridor (NSEC) / Two Corridors and One Cir- cle proposed by Vietnam, the Northern Powerhouse strategy proposed by the United Kingdom, and the Amber Railway Freight Corridor proposed by Poland.10 The connection of the Belt and Road Initiative with the development plans of the participating countries will form a huge connectivity network, which is already being realized and promoting the connectivity of trade, technology, financial resources, culture, people-to-people exchanges and the faster development of economic, social and cultural undertakings in various countries. This will ultimately enable the people of the world to enjoy peace and security and promote the continuous improvement of human rights protection. It can be seen that the Belt and Road Initiative as an important development platform will bring solid benefits to the people of all countries and regions, thus laying a solid foundation for building a Community with a Shared Future for Human Beings. The idea of building a Community with a Shared Future for Human Beings as a new vision of human development in the new era, proposed by Xi Jinping, is guided by Marxism, follows the law of historical development, and is a development of the principles of the UN Charter and the Universal Declaration of Human Rights which safeguard peace, security and human rights. Its realization is a great historic task. It is inevitable that we will encounter difficulties and obstacles during the process. But as long as it is understood that it is for the welfare of the people of China and the world, as long as we have a strong determination and confidence, we will turn the vision into reality after struggling with people all over the world. (Translated by CHANG Guohua)

10. Xi Jinping, “Join Hands to Promote the Belt and Road ‒ Speech at the Opening Ceremony of the Belt and Road Forum for International Cooperation,” People’s Daily, May 15, 2017. THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

On the Making and Significance of the Universal Declaration of Human Rights

LIU Jie*

Abstract: The Universal Declaration of Human Rights was the first common commitment of the international community to human rights. It demonstrated the belief and determination of humanity to maintain peace, democracy and human dignity. The process of formulating the Declaration was difficult. But in the spirit of cooperation, countries finally succeeded in reaching a consensus on human rights. The making of the Universal Declaration of Human Rights had great value and significance for promoting world peace and development, and it has had a far-reaching impact on the rule of law in international human rights and the development of the human rights legal systems in various countries. A re-examination and analysis of the process of formulating the Universal Declaration of Human Rights will help us understand the purposes and objectives of the Declaration and review the great value of the spirit of the Declaration to the world today. Keywords: Universal Declaration of Human Rights  human rights  processing of formulating  significance

The Universal Declaration of Human Rights (“Declaration”) is the first document in history in which the international community set out a joint commitment to protect human rights. Its formulation was not only an important manifestation of humanity’s determination to maintain peace and democracy in the post-World War II era, but also established the spirit and purpose of human rights to be followed by all countries in the world and which constitute the basic human rights standards. In the process of formulating the Declaration, although there were differences and contradictions arising from the different understandings of human rights among countries with different social systems and historical and cultural traditions, in the spirit of cooperation, countries reached agreement because the Declaration fully reflects the determination of the war-torn peoples of the world to defend their rights from violations and promote human progress. The world has undergone profound changes since the Declaration was adopted by the United Nations General Assembly on December 10, 1948. Inter- national human rights laws based on the Declaration and international human rights conventions have become a complete normative system. However, peace remains an unresolved issue and development remains a daunting challenge. Human rights violations are still common all over the world. Some countries even ignore the purpose of

* LIU Jie ( 刘杰 ), Director of Human Rights Research Center, Shanghai Academy of Social Sciences. 2018] ON THE MAKING AND SIGNIFICANCE OF THE UNIVERSAL 481 DECLARATION OF HUMAN RIGHTS the Declaration and deliberately create human rights confrontations and set up obstacles for the international community to work together to safeguard human rights. To this end, a re-examination and analysis of the process of formulating the Declaration will give us an opportunity to not only better understand the purposes and objectives of the Declaration formulated by the international community in the early post-war period, but also fully appreciate the great value of the spirit of the Declaration for promoting world peace and development today. I. The World War II and the Internationalization of Human Rights The Declaration was formulated under the auspices of the United Nations after the end of the World War II. It was the product of the global movement of human rights protection in the early post-war period. However, speaking of its origin and motivation, the unprecedented catastrophes of war on human life and property directly resulted in the rise of the international movement for the protection of human rights after the war, and the agreements and documents reached between peace-loving and democratic countries during the war also provided a solid organizational foundation and a set of ideas and norms for the subsequent formulation of the Declaration. In this sense, the Declaration is not only a manifestation of the progressive spirit of humanity after the war, but also a result of humanity reaffirming human rights, personal dignity and worth after the great human suffering from the war so as to “save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.”

A. The World War II is a war against fascism and for human dignity and fundamental human rights World War II was a milestone and turning point in the internationalization of human rights. The wars of aggression initiated by the fascists and militarists of Germany, Italy, and Japan and their barbaric wartime acts were the most serious violations of human dignity and the right to life. In the face of these severe challenges, peace-loving and democratic countries were forced to abandon prejudice because of social systems and ideologies, and unite to begin “an unprecedented war for human rights.”1 In this war, a world movement for effective protection of international human rights in all possible forms emerged. Safeguarding human rights was no longer just a matter of domestic political and legal concern. It was also gradually made part of international politics and international law. The internationalization of human rights and the legal- ization of international human rights protection have become an inevitable choice for the international community in the post-war period. According to John Humphrey, first Director of the Division of Human Rights and Secretary of the Commission, the war “not only brought unprecedented developments in laws on individuals, but also changed the structure and nature of the legal system, not only added new standards to the existing system, but also changed the nature of the system. Everything that has happened is revolutionary. The parallel system of the past has now become vertical. The law of international law, a traditionally inter-state relationship, has now extended

1. John Humphrey, International Human Rights Law (Beijing: World Affairs Press, 1992), 19. 482 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 480 to cover other entities, including individual men and women, who have been objects of international law for a long time until now when they become the subjects of international law.”2 The question of whether an individual has become the subject of international law is of course open to debate, but the impact of World War II on the entire international legal system is unquestionable. At least, one of its most direct manifesta- tions is the emergence of international human rights laws which are an indispensable important component in the international legal system. The basic theory of fascism is built on extreme power and on extreme contempt for and trampling over human life and dignity. According to the “racial supremacy theory” and concept of “lebensraum” (living space), which were the core of Hitler’s political platform, there are good and bad races and the Aryan race was the “master race”, while Jews, Slavs and others are inferior races. As the master race, the Aryan people had the right to enslave and rule other races, and, in order to “promote the evolution of humanity”, the inferior races should be completely eliminated. Also in Hitler’s view, the Versailles settlement after the end of World War I deprived the people of Germany “living space”, so Germany must expand outwards to have the living space needed for the development of the German nation. If the theory of racial superiority is just based on ridiculous delusions, the idea of living space incited the sentiments of the Germans after World War I and allowed fascism to spread rapidly. Similarly, although Japanese militarism tried to conceal its power politics and tried to use the sufferings of Asian countries in modern times to pass itself off as “liberators” of the Asian peoples, its brutality in war still fully exposed its barbarism and aggressive nature, which can be seen as being no different from fascism. From today’s point of view, the theory of fascism is of course based on the values that are anti-humanity and anti-science delusions. The history of human evolution has already confirmed the equality of different races. The theory of “living space” is built on unadorned power politics. Japanese militarism went even farther than West- ern colonists. The blind nationalist sentiment that this theory incited at that time made World War II the most tragic in human history, which lasted more than eight years and affected more than 60 countries in the world, accounting for four-fifths of the world’s population. The genocidal policy of fascist Germany against European countries, especially the Jewish people, and the brutal slaughtering by Japanese militarists of the peoples of Asian countries resulted in the deaths of 50 million innocent people. China and the Soviet Union alone, each suffered 20 million deaths, the two countries making huge sacrifices in the defeat of fascism and militarism. The war also laid countless cities, villages and towns to waste and burned countless factories, ships and bridges into ashes, and destroyed a large number of historical and cultural heritage treasures. The high-handed fascist rulers also deprived their own people of basic political freedoms and civil rights. In the face of the threat of fascism, peace-loving and democratic countries, to ensure their own survival, political parties, social groups, and religious organizations raised the banners of independence, liberation and freedom. Human rights became

2. Ibid. 2018] ON THE MAKING AND SIGNIFICANCE OF THE UNIVERSAL 483 DECLARATION OF HUMAN RIGHTS the slogan of the peoples of the world who were to overcome fascism. From the very beginning of the European War, British Prime Minister Churchill declared the goal of the War was “to establish individual rights on solid rocks”.3 Stalin made it clear that this was a war to “safeguard the freedom of our motherland” and “strive for the independence, democracy, and freedom for the European and American peoples”4. Mao Zedong also announced after the outbreak of the Soviet-German war that “the current mission of the Communists in the world is ... to defend the freedom and independence of all nations.”5 United States President Roosevelt proposed the famous Four Free- doms before the United States entered the war, claiming that: “Freedom means the supremacy of human rights everywhere. Our support goes to those who struggle to gain those rights and keep them. Our strength is our unity of purpose.” “In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression – everywhere in the world. The second is freedom of every person to worship God in his own way – everywhere in the world. The third is freedom from want [...] The fourth is freedom from fear [...]”6 The common purposes and aspirations of human rights not only decided that the war was for human rights, but also laid the foundation for the popularization of international human rights trends after the War.

B. The human rights value of key documents of anti-fascism during World War II If the human rights purpose of the War by various democratic countries laid the foundation of the ideas and concepts of the Declaration, then a series of key documents jointly formulated by anti-fascist countries during the War provided the basic framework and ideas for the principles and norms of the Declaration. The first normative and organizational basis for the Declaration was provided in the Atlantic Charter, a joint declaration released by U.S. President Franklin D. Roos- evelt and British Prime Minister Winston Churchill on August 14, 1941. This Charter made by the United States and Britain set out a series of basic human rights principles on the purpose of the war, including the following passages: “they [the United States and Britain] desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned;” (Principle 2); “they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them;” (Principle 3); “they desire to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labor standards, economic advancement, and social security;” (Principle 5); “they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men

3. Ibid., 54. 4. Joseph Stalin, Selected Works by Joseph Stalin, vol. 1 (Beijing: People’s Publishing House, 1962), 267. 5. Mao Zedong, Selected Works of Mao Zedong, vol. 3 (Beijing: People’s Publishing House, 1991), 806. 6. Guang Zaihan, Selected Works of Roosevelt (Beijing: The Commercial Press, 1982), 207-208. 484 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 480 in all the lands may live out their lives in freedom from fear and want.” (Principle 6)7 These principles were reflected in the spirit of the United Nations and in the Declara- tion. After the outbreak of the Pacific War, 26 anti-fascist countries including the Unit- ed States, the Soviet Union, Britain, and China jointly signed the Declaration of the United Nations on January 1, 1942, officially proclaiming that the purpose of the war was to safeguard human rights. The declaration states that “Governments signatory [...] being convinced that complete victory over their enemies is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands, and that they are now engaged in a common struggle against savage and brutal forces seeking to subjugate the world, [...]”.8 This purpose of the Declaration was later accepted by the United Nations as an important reason and purpose for its establishment and also became one of the purposes of the Universal Declaration of Human Rights. As a worldwide organization composed of many countries of different social systems, ideologies and historical and cultural traditions, the United Nations has not played its due role in safeguarding international security and promoting world development for a long time and it even became a stage of power struggle between big powers. However, its achievements in international human rights protection cannot be questioned. As Tom J. Farer commented, “from the very beginning, the United Na- tions seemed to be destined to be a human rights institution”.9 The Charter of the Unit- ed Nations is not a purely international human rights document; it provides the basis and principles for the Declaration. The Charter of the United Nations declares in the preamble: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, [...]” In the specific provisions, there are six direct references to human rights and human rights protection in the UN Charter. Article 1, paragraph 3 states: “[...] promoting and encouraging respect for human rights and for fundamental freedoms for all [...]”. Article 13, paragraph 4, states: “The General Assembly shall initiate studies and make recommendations for the purpose of: [...] promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. Article 55 states: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote [...] universal respect for, and

7. Dong Yunhu and Liu Wuping, An Overview of the World Human Rights Law (Chengdu: Sichuan People’s Publishing House, 1990), 927. 8. Ibid., 928. 9. Tom J. Farer, “United Nations and Human Rights,” United Nations Research References 17, 4. 2018] ON THE MAKING AND SIGNIFICANCE OF THE UNIVERSAL 485 DECLARATION OF HUMAN RIGHTS observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. Article 62, paragraph 2 states: The Economic and Social Council “may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all”. Article 68 states: “The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions.” Article 76 states that: “The basic objectives of the trusteeship system [...] shall be ... to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world.” These norms define the principles and values of the subsequent Declaration in several aspects: First, it is not mandatory. The authority and purpose of the United Nations in the protection of human rights are only to play the general roles of “studies”, “promoting”, “encouraging”, and “recommendations.” It is mainly to create an environment and atmosphere conducive to human rights and provide countries with the external motivation and support for human rights protection. Second, it applies universally. The protection of human rights is the common responsibility of all countries and all peoples. The human rights standards formulated by the United Nations, which have been jointly recognized by all member states, should be strictly observed and maintained, with no exception. Third, the subjectivity of the state includes two indivisible aspects. On the one hand, human rights are essentially matters within the scope of national sovereignty, and the Charter clearly states that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” On the other hand, the United Nations does not grant rights to individuals, who are not the subjects of international human rights law. It should be said that these principles are in line with the basic norms of international relations. They not only reflect a high degree of human rights, but also safeguard the subject status of countries in safeguarding human rights. The historical process of the internationalization of human rights and the legal- ization of international human rights protection during World War II demonstrated the historical logic of human progress and also determined the inevitability of the Decla- ration being formulated after the war. However, it should also be noted that although all countries regard human rights as one of the purposes of the anti-fascist war and post-war rehabilitation, it is clear that the understanding of human rights and of the status and role of the international community in safeguarding human rights are not identical. For example, Churchill equated “human rights” with “individual rights”; Roosevelt summed them up as “four freedoms”; Stalin emphasized ”independence“ and ”democracy”; China did not oppose “individual rights”, but demanded “respect for political independence and territorial integrity”.10 Such independence and integrity

10. For example, at the Dumbarton Oaks Conference, one of the seven supplementary suggestions put forward by the Chinese representative on the proposal of the United States, Britain, and the Soviet Union was that “the proposal should adhere to the principle that all countries and all ethnic groups are equal.” See C. E. Krylov, Historical Materials of the United Nations, vol. 1 (Beijing: The Commercial Press, 1955), 54. 486 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 480 are regarded as a prerequisite for human rights protection. During the war, due to the common goal of anti-fascism efforts, these different understandings of human rights did not lead to too many contradictions and disputes. However, after the end of the war, human rights and their protection, which are closely linked to the rights and interests of all countries, made differences surface and had an important impact on the formulation of the Declaration. II. The Making of the Universal Declaration of Human Rights After the war, the United Nations Charter embodied the determination of the countries of the world to avoid the scourge of war for humanity and reaffirm the fundamental human rights and respect for humanity. However, as a constitutional document of the United Nations, a global political and economic organization, the UN Charter is not an international human rights document in the strictest sense and it was felt to be deeply inadequate by many countries. Therefore, when the United Nations was proclaimed, the task of making a special international human rights charter was put on the agenda of the Economic and Social Council. During the war, the United States considered the addition of a special human rights bill to the Charter when it participated in the formulation of the UN Charter. The US State Department submitted a proposal saying that the United States should advocate some specific provisions for human rights protection in the UN Charter, and that the United Nations should also be organized in a way which provided the “means to ensure human rights needs.”11 But President Truman then did not adopt this proposal for political reasons. Other major powers were also worried that an emphasis on human rights would weaken the UN’s primary objective of international security. Therefore, after consultations with Britain, France, and the Soviet Union, US Secre- tary of State Edward Reilly Stettinius made an announcement as soon as the San Fran- cisco Conference was opened, saying that: “This session cannot attempt to enumerate individual and collective human rights and fundamental freedoms in this Charter.”12 Though major powers had reached agreement, other countries nonetheless put forward their own proposals during the San Francisco Conference. Chile, Cuba, Pana- ma, Uruguay and other countries all asked the United Nations to provide clear protection for human rights. For example, Uruguay proposed that the Charter of the United Nations should declare that one of the purposes of the United Nations was to promote the recognition and protection of the respect for fundamental freedoms for all, regardless of race, gender, religion and social status, and should draft a special charter to provide for these freedoms and rights, which should be submitted to the UN General Assembly for consideration within six months. According to Panama’s proposal, the Charter of the United Nations should declare that one of the purposes of the United Nations is to “maintain and abide by the standards established by the Declaration of Fundamental Human Rights, which should be attached to the Charter as one of its

11. Louis B. South, “The International Protection to Human Rights,” Indianapolis (1973), 507. 12. Dwight L. Dumond, America in Our Time: 1896-1946, (Beijing: The Commercial Press, 1984), 724. 2018] ON THE MAKING AND SIGNIFICANCE OF THE UNIVERSAL 487 DECLARATION OF HUMAN RIGHTS parts.”13 On January 10, 1946, after the opening of the first session of the UN General Assembly, the Panamanian representative again submitted a proposal on basic human rights, demanding the proposal be formally listed in the agenda of the Assembly. On February 16, the Economic and Social Council established the Commission on Hu- man Rights in accordance with Article 68 of the UN Charter, and at the same time began the preparation of the Universal Charter of Human Rights. On October 31, the UN General Assembly accepted the proposal of the representative of Panama and submitted it to the First Committee (the Disarmament and Security Committee) and the Third Committee (the Social, Humanitarian and Cultural Committee), asking them to initiate studies of the proposal as soon as possible, in order to provide guidance for the Commission on Human Rights on the drafting of the world’s documents on human rights. The Commission on Human Rights, established in February 1946, was originally composed of representatives of nine countries in unofficial capacities. Later the number of representatives increased to 18. In accordance with the provisions of the Economic and Social Council, the job of the Commission was to submit proposals, recommendations, and reports to the Economic and Social Council on matters such as the world human rights charter, the protection of freedom of the press, the protection of minorities, the prevention of racial discrimination, and the maintenance of the status of women. Its top task was to draft a world human rights charter. On January 27 – February 10 1947, the Commission on Human Rights met for the first time at Lake Success, New York, the United States and began a general discussion on the drafting of a world human rights charter. The meeting first discussed the constitution of the human rights charter. Representatives from various countries put forward three options: First, the human rights charter could be adopted as a resolution of the UN General Assembly or in the form of a joint declaration. The latter option won the support of most countries. Second, the human rights charter should be adopted in the form of a binding multilateral convention. This idea was supported by countries including Australia and India. Third, a few countries proposed to amend the UN Charter to incorporate the Universal Human Rights Charter. According to the opinions of most countries, the Commission on Human Rights decided to draft the World Human Rights Charter in the form of a declaration. At the second meeting of the Commission on Human Rights held in December of the same year, representatives of various countries adopted Resolution No. 46 (IV) after consultation, deciding that the human rights charter would consist of three parts: A Declaration including the meanings of various rights and embodying the spirit of human rights; a multilateral convention regulating these rights and open to new member states; and measures governing the implementation of the provisions of the convention (i.e. the subsequent optional protocol). After the first meeting of the Commission on Human Rights, the Drafting Group composed of Eleanor Roosevelt (United States), chairman of the Commission, P.C.

13. Ibid., 56. 488 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 480

Chang (China), vice-chairman, and Charles Malik (Lebanon), the Rapporteur began to draft the Declaration. These people from countries of vastly different historical and cultural traditions encountered great differences in their views and interests. The drafting work was very slow and was once suspended. At the second meeting of the Economic and Social Council, the representative of the Soviet Union demanded to expand the Drafting Group. The new Drafting Group consisted of representatives from eight countries: the United States, China, Lebanon, the Soviet Union, the United Kingdom, France, Australia, and Chile. In order to avoid slow progress drafting due to excessive disagreement within the Group, the Commission on Human Rights asked the United Division of Human Rights to first provide an outline of the rights based on the draft declarations submitted by country representatives and individuals. The drafts submitted mainly included those by Cuban representative Gustavo Gutierrez, H. G. Wells, Hersch Lauterpacht, Wilfred Parsons, the American Jewish Congress, the World Government Association, and the Institut de Droit International. On the basis of these drafts, John Humphrey, Director of the Division of Human Rights, presided over the making of an outline. On June 9 - 25, 1947, the Drafting Group met to discuss the outline proposed by the Division of Human Rights and decided to appoint a Working Group composed of representatives from the United Kingdom, France and Lebanon to prepare the different opinions put forward at the meeting. The Working Group as- signed the French representative René Cassin to prepare a new draft. (René Cassin was later awarded the Nobel Peace Prize for Peace in 1968 for his outstanding contribution to the drafting of the Declaration.) After more than a year of hard work, the third meeting of the Commission on Hu- man Rights on June 18, 1948 adopted a draft declaration which incorporated various opinions under the coordination of René Cassin. After consideration by a special committee established by the Economic and Social Council, it was submitted to the Third Session of UN General Assembly, which entrusted the Third Committee to review the articles of the draft. Under Malik, Chairman of the Third Committee, the Committee held 81 meetings and passed 168 amendments. On December 6, the Third Committee sent the final text of the Declaration to the General Assembly for consideration by the end of the preliminary session of the current session of the General Assembly. On De- cember 10, the General Assembly formally adopted the Declaration with an absolute majority of 40 votes in favor, 0 votes against, and 8 abstentions. The countries which abstained from voting were the Soviet Union, Belarus, Poland, Yugoslavia, Ukraine, Czechoslovakia, South Africa and Saudi Arabia.14 It took almost two years for the Declaration to be formulated from beginning to end. This process reflected the cautious attitude of countries around the world. As Charles Malik recalled, “the creation of each article and every part of each paragraph is dynamic work. In the work, many ideas, interests, backgrounds, legal systems, and ideological beliefs played their own roles. There was also lobbying and planning. Ev- erything was very suitable, everything was in line with the rules people recognized for this competition, even when they were not in meeting sessions. We cannot possibly

14. UN Documents, A/CN3/SR225. 2018] ON THE MAKING AND SIGNIFICANCE OF THE UNIVERSAL 489 DECLARATION OF HUMAN RIGHTS explain how each article and each paragraph were written. This is because each was actually full of vitality and the dynamic process could no longer be captured or repro- duced.”15 Mrs. Roosevelt stated in the Commission on Human Rights: “It [the Decla- ration] contributes to the articles and paragraphs on human rights in the UN Charter and guides the understanding and interpretation of these provisions. It reflects the enthusiasm of all individuals and groups for the development of human rights.”16 The lengthy drafting process also reflected the complexity of the effort. The Dec- laration was a common document that demonstrated the desire of the human society to protect human rights. Although no country opposed the formulation of the Declara- tion, it was very difficult to win the recognition of all countries for the document and the process of reaching agreement inevitably went through a tortuous process because the formulation involved the ideas, positions, and national interests of different social systems, ideologies and historical and cultural traditions. In fact, the deadlock in the work of the three-person Drafting Group was indeed a reflection of such a tortuous process. But even in the enlarged Drafting Group and after the submission to the Commission on Human Rights and the Third Committee of the UN, the drafting work was still full of constant twists and turns. Even during the discussion of the Third Committee of the UN General Assembly, many countries demanded to postpone the adoption of the Declaration because of various considerations. For example, the So- viet Union and East European countries believed that the Declaration should contain the right to national self-determination; New Zealand believed that if the Declaration was adopted first, the possibility of adopting a human rights convention would be slim and, therefore, a universal convention on international human rights should be adopted first. A group of Latin American countries led by Cuba insisted that the Declaration should be based on the American Declaration of the Rights and Duties of Man adopted in Bogotá, Colombia in early 1948. Such difference in ideas of human rights was best reflected in the early drafting stage of the Declaration, with the three-person drafting group consisting of Eleanor Roosevelt, Charles Malik and P. C. Chang, who each represented their own traditional ideas and national interests. Especially, with scholars Charles Malik and P. C. Chang, such difference was even more obvious. Malik insisted that individual rights should take precedence over social and state rights, individual rights and freedoms should be the basis and core of human rights, and should not be infringed upon by the government. While, as in China’s Confucian traditions, P. C. Chang believed that individuals and society are inseparable, and the Declaration should not copy the paragraphs of the constitutions of the Western countries, and could not just reflect the Western ideas of human rights. He insisted that the Confucian culture and the Eastern concepts of rights should also constitute the value base of the Declaration. After the making of the draft’s outline was entrusted to John Humphrey, Chang suggested that Humphrey go to China and stay there for half a year to have a first-hand experience of the essential

15. John Humphrey, International Human Rights Law, 146-147. 16. UN Documents, E/CN4/SR206, p.12. 490 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 480 ideas of Confucian philosophy.17 In addition to social and technical reasons, the key reason for difficulties in drafting the Declaration was that the world was in the initial stage of Cold War in 1947. Political interference made it more difficult for countries to reach an agreement. The Soviet Union abstained from voting mainly for political considerations. Both the United States and the Soviet Union adopted a Cold War mentality in the formulation of the Declaration. The United States strove to lead the formulation of the Declaration, believing that “the whole world should adopt our system” and “the people all over the world are expecting our support to safeguard their freedom”. Truman said, “We must strive to meet human rights goals for all the people everywhere, regardless of ethnic, linguistic or religious differences... We have every reason to expect to formulate an international human rights bill that will become part of international life, just like our Bill of Rights is an inseparable part of American life.” Secretary of State Sturdinus also said, “We demand that the World Bill of Rights be enacted as soon as possible so that various countries can include it into their own legal systems.”18 To ensure such leadership, the US State Department provided Eleanor Roosevelt with a dedicated legal advisory team to offer legal and technical advice and assistance. Draft declarations provided by US civil institutions such as the American Bar Association, the American Law Institute, and the American Jewish Congress became important reference documents. This made the Declaration in line with the positions and aspirations of the United States in its main aspects. In the UN General Assembly vote, the United States took the lead to vote in the affirmative. Unlike the United States, the Soviet Union at first did not show much interest in the formulation of the Declaration. But after the outbreak of the Cold War, it did not want to miss any opportunity to influence the drafting work. The Soviet Union sent its representative Alexander E. Bogomolov to become the only representative of the socialist countries in the Drafting Group of the eight countries. In drafting the Decla- ration, the Soviet representative insisted on the Soviet ideas of human rights in two aspects. First, the right to national self-determination. At the third meeting of the Com- mission on Human Rights held in 1948, the Soviet representative proposed that since the United Nations Charter clearly provided for the rights of equality between large and small countries and fundamental human rights, the Declaration had no reason to exclude the right to national self-determination. Second, the relationship between individual rights and state rights. The Soviet representative insisted that individual rights could not take precedence over state rights, and that international protection of human rights must not be at the expense of national sovereignty. During the discussion at the UN General Assembly, Soviet Foreign Minister Andrey Vyshinsky said, “Some people say that the Declaration of Human Rights has nothing to do with the state issue because it only focuses on individual rights. It is impossible to agree with this idea, because it is impossible to imagine the existence of individual rights without a state. The concepts of rights and law itself are linked to the concept of the state. Unless with

17. Huang Mo, “Forty Years of International Human Rights,” The Intellectuals, the Summer edition of 1986. 18. Tom J. Farer, “United Nations and Human Rights,” United Nations Research References 17, 6. 2018] ON THE MAKING AND SIGNIFICANCE OF THE UNIVERSAL 491 DECLARATION OF HUMAN RIGHTS guarantee and protection of a state, human rights will become a purely abstract concept. Empty ideas are easy to create, and they are equally easy to disappear.”19 Since Western countries and Latin American countries with the ideas of human rights similar to those of the West enjoyed an absolute majority in the Commission on Human Rights, these two ideas of the Soviet Union were not accepted.20 It was for this reason that the Soviet representative, in the consideration of the draft declaration by the Third Committee of the United Nations, requested the Committee to adopt a resolution to postpone the submission of the draft declaration to the General Assembly for approval so as to have more time for further studies and additions. But this motion was rejected with a vote of 26 to 6.21 During the UN General Assembly discussion, the Soviet representative once again proposed to postpone the approval of the Decla- ration. It was again rejected by 6 votes in favor, 45 votes against, and 3 abstentions.22 The Soviet Union therefore abstained from voting on the Declaration. III. The Content, Value and Significance of the Universal Declara- tion of Human Rights Although the formulation of the Universal Declaration of Human Rights was by no means an easy process, was full of contradictions, differences, and struggles in the areas of various ideas, interests and powers, no country wanted to be accused of lack- ing in the spirit of human rights in the early days of the worldwide movement for the post-war human rights protection. The Declaration was quickly adopted and became the first global human rights document in the history of humanity to represent the common aspirations of the peoples of the world. In this sense, the value of the Dec- laration is first reflected in its content, including its purposes, principles, definition of rights and an interaction between rights and obligations, all of which have not been dealt with previously. In the Preamble, the Declaration lists seven key reasons for the formulating of the Declaration, including: first, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”; second, “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief

19. Liu Xinghan, “International Protection of Human Rights and American Human Rights Diplomacy,” Journal of Fudan University (Social Science Edition) 2 (1988). 20. It is worth mentioning that although the two proposals of the Soviet Union were not adopted by the Declara- tion, they were clearly affirmed in the subsequent international human rights conventions. The International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights both state in Article 1: “All peoples have the right of self-determination.” The International Covenant on Civil and Political Rights states in Article 4: “The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” These provisions have since become an important reason why the United States has refused to accept the two international human rights conventions. 21. UN Documents, A/777. 22. UN Documents, A/CN3/SR225. 492 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 480 and freedom from fear and want has been proclaimed as the highest aspiration of the common people”; third, “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”; fourth, “it is essential to promote the development of friendly relations between nations”; fifth, “the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom”; sixth, “Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms”; and seventh, “a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge.”

A. The main contents of the Universal Declaration of Human Rights The Declaration declares, on behalf of all the countries in the world which love peace and democracy, their determination to jointly safeguard human rights in their own countries and in the international community and provides humanity with a uniform sets of standards in the protection of human rights. It declares in the Preamble the purpose of the Declaration is to be “a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.” The Declaration establishes three basic principles for international human rights. The first principle is progressive improvement. The Declaration states in the Preamble that the purpose of the Declaration is to establish a “common standard” for the protection of human rights. But it does not unrealistically require countries to immediately meet these standards. On the contrary, it advocates “progressive measures”, recogniz- ing the differences between different countries and the difficulty in effectively protecting human rights in the international community. The second principle is equality. Article 1 of the Declaration states: “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The third principle is universality. Article 2 of the Declaration states: “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Progressiveness, equality and universality are the principles of the Declara- tion. Neither of them should be emphasized at the expense of any other, which is the guideline for international human rights protection. The Declaration lists 25 rights that should be fully guaranteed by the State. They include 19 civil and political rights and 6 economic, social and cultural rights. The civil and political rights stated in the Declaration include: life, liberty and security of 2018] ON THE MAKING AND SIGNIFICANCE OF THE UNIVERSAL 493 DECLARATION OF HUMAN RIGHTS person; freedom from slavery or servitude; freedom from torture or to cruel, inhuman or degrading treatment or punishment; personality rights before the law; recognition everywhere as a person before the law; equal before the law and entitled without any discrimination to equal protection of the law; an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law; freedom from arbitrary arrest, detention or exile; full equality to a fair and public hearing by an independent and impartial tribunal; the right to be presumed innocent until proved guilty; arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation; freedom of movement and residence within the borders of each state; the right to seek and to enjoy in other countries asylum from persecution; the right to a nationality; freedom from being arbitrarily deprived of his nationality nor denied the right to change his nationality; the right to marry and to found a family; property ownership; freedom of thought, conscience and religion; the right to freedom of opinion and expression; the right to freedom of peaceful assembly and association, freedom from compulsion to belong to an association; the right to take part in the government of his country, directly or through freely chosen representatives, the right of equal access to public service in his country, universal and equal suffrage. The economic, social and cultural rights set out in the Declaration mainly include: the right to social security and being entitled to realization of the economic, social and cultural rights indispensable for a person’s dignity and the free development of an individual’s personality; the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment, the right to equal pay for equal work, the right to form and to join trade unions for the protection of his interests; the right to a standard of living adequate for the health and well-being of himself and of his family; motherhood and childhood are entitled to special care and assistance; the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits; the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production; and entitlement to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. The Declaration demonstrates the notion of combining rights and obligations. This is also an important value of the Declaration. It breaks the monopoly of the West’s idea of absolute rights over the definition of human rights. It states that “everyone has duties to the community in which alone the free and full development of his personality is possible.” In order to implement the idea of combining rights and obligations, the Declaration also states limitations on rights, though “such limitations [...] are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. Objectively speaking, the Declaration reflects the Western concepts of human rights and regulates the individual rights based on private property, especially the civil and political rights in the Western traditions. Among the rights contained in the Dec- laration, there are 19 political rights for citizens, accounting for more than two-thirds 494 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 480 of the total, and the economic, social and cultural rights are few in number and are all related to individuals. Moreover, in the Declaration are reflected a sense of unequal international hierarchy. It does not accept national equality and the right to self-determination. Instead, it recognizes trusteeship and the new colonial form, the so-called “non-self-governing” territories. Chinese scholars comment: “The Declaration is based on the theory of natural rights of the bourgeois enlightenment thinkers in the 17th and 18th centuries, and adopts European standards for the interpretation of human rights”; and “the Declaration is inevitably influenced by the bourgeois concept of human rights and is more or less a tradition of the Déclaration des Droits de l’Homme et du Citoyen of France and the Bill of Rights of the United States. Such ideological basis guarantees the continuity of human rights thoughts, but constitutes the historical limitations of the Declaration.”23 Such evaluation can be said to be objective and perti- nent. Nonetheless, the Declaration as the first comprehensive interpretation of human rights by the international community make human rights formerly monopolized by the West a goal pursued by all countries in the world. To a certain extent, human rights reflect the strong opposition against war and a strong desire for peace in the post-war period, which is of historical and progressive significance and thus wins wide support and approval. The civil and political rights in the Declaration in many respects provide a wider coverage than the Bill of Rights and the Déclaration des Droits de l’Homme et du Citoyen which are regarded more as Western views of human rights. The Declara- tion of Human Rights is more detailed and comprehensive. For example, the freedom from slavery, the right to freedom of movement, and the definitions of progress and freedom are not included in the two documents. As for economic, social and cultural rights, they have never been taken seriously in the West. For example, in the United States, although the concept of economic rights has gradually been accepted since the beginning of the 20th century and President Roosevelt proposed an Economic Rights Bill in 1944,24 requesting it be added as a new constitutional amendment. But, after being submitted to Congress, this proposal was not taken seriously.

B. The impact of the Universal Declaration of Human Rights on later generations Furthermore, the significance and value of the Declaration is not only reflected in the expansion of the meanings of human rights, but also in many other social aspects, mainly in the following aspects. First, the Declaration provides basic principles and a direction for the development of the entire system of international human rights protection and international human rights laws. According to the UN Commission on Human Rights resolution No. 46 (IV), the purpose of the UN drafting a legally binding international human rights convention is to “collect and summarize the 26 rights proposed in the Decla- ration into an international treaty on such rights and the means of their implementa-

23. Xu Chongde, Human Rights Thoughts and Human Rights Legislation (Beijing: Renmin University of China Press, 1992), 211. 24. Guang Zaihan, Selected Works of Roosevelt, 520. 2018] ON THE MAKING AND SIGNIFICANCE OF THE UNIVERSAL 495 DECLARATION OF HUMAN RIGHTS tion.”25 The International Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights both clearly state in the Pream- bles that they were made “in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and that “the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.”26 In 1968, the Tehran Declaration adopted by the First World Conference on Human Rights also proposed that the purpose of the Conference was to “review the progress made in the twenty years since the adoption of the Universal Declaration of Human Rights and to formulate a programme for the future”, “reaffirming the Universal Declaration of Human Rights and the belief in the principles contained in other international instruments in this regard” and “urges all peoples and governments to dedicate themselves to the principles enshrined in the Universal Declaration of Human Rights”.27 In many other important documents on international human rights protection adopted by the United Nations, such as the Con- vention concerning the Abolition of Forced Labour, the Convention on the Political Rights of Women, and the Declaration on the Right of Peoples to Peace, all state in the Preambles that they follow the spirit of the Universal Declaration of Human Rights. Other documents, such as the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the Convention on the Reduction of State- lessness, the Convention concerning Employment Policy, are direct developments and extensions of the specific provisions of the Declaration. It can be seen that the Decla- ration has become a fundamental document for the protection of human rights in the international community and provides the basic spirit of international human rights protection. Second, not only has the Declaration had a major impact on the position of the United Nations and other international organizations on human rights, but also many regional organizations have adopted the basic principles and the spirit of the Decla- ration in formulating basic human rights documents for their regions. The European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention On Human Rights, and African Charter on Human and Peoples’ Rights not only state in the Preambles that they follow the spirit of the Declaration, but also borrow the words used in the Declaration in many specific articles. In particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted shortly after the formulation of the Declaration, borrows standards and terms from the Declaration, except for provisions for some procedures and institutions. Third, the Declaration has also had a major impact on the formulations and revi-

25. UN Documents, E/CN4/SR206, 12. 26. Institute of Law, Chinese Academy of Social Sciences, International Human Rights Documents and Interna- tional Human Rights Institutions (Beijing: Social Sciences Academic Press, 1993), 10, 22. 27. Dong Yunhu and Liu Wuping, An Overview of the World Human Rights Law, 987, 989. 496 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 480 sions of the constitutions of various countries after the War. Dutch scholars Johannes Henricus van Maarseveen and Ger Van der Tang made comprehensive statistical studies in their book Written Constitutions: A Computerized Comparative Study. Ac- cording to them, there are 22 constitutions in the world that are explicitly related to the Declaration; in the constitutions formulated after the War, no less than 43 ones are obviously influenced by the Declaration and often cite words from the Declaration.28 For example, the defeated countries such as Japan, Germany, and Italy all follow the human rights spirit of the Declaration in their new constitutions, and contain a large number of provisions for the protection of human rights. The French Constitution of 1958 was also revised in line with the human rights protection provisions of the Dec- laration. The Guinean Constitution of 1958 declares its support for the Declaration. Fei Xiaotong, then vice chairman of the Standing Committee of the National People’s Congress, also pointed out at the 40th anniversary symposium for the Declaration held in Beijing on December 10, 1989 that China “neither rejects or denies human rights in general” and that “the rights stated in the Declaration and other international human rights documents basically correspond to the provisions of the Chinese Constitution, and in many respects the Chinese Constitution exceeds the standards of the Declara- tion, and in some respects are richer and more realistic. ”29 Finally, the value and significance of the Declaration are also reflected in the fact that its spirit has gradually been accepted by the people, and clearly followed and invoked in the practice of international human rights. When the international community condemns some countries for violating human rights, the Declaration is often cited as the basis and standard for such condemnation. For example, the resolution of the United Nations Security Council on December 4, 1963, which condemned the apartheid system in South Africa, declared that the system “in violation of its obligations as a Member State of the United Nations and of the provisions of the Universal Decla- ration of Human Rights”. The UN General Assembly resolution of October 27, 1966 further announced that “the Administration of the Mandated Territory by South Africa has been conducted in a manner contrary to the Mandate, the Charter of the United Nations and the Universal Declaration of Human Rights” and decided to terminate South Africa’s mandate of Namibia.30 In another example, in 1980, the International Court of Justice also announced in the judgment on the case of Iran’s seizure of the US embassy premises and staff that Iran “wrongfully ... deprive human beings of their freedom and … subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.”31 It is worth mentioning that although the Declaration is one of the most important

28. Johannes Henricus van Maarseveen and Ger Van der Tang, Written Constitutions: A Computerized Compara- tive Study (Huaxia Publishing House, 1987), 247. 29. “ The Capital Commemorates 40 Years Since the Adoption of the Universal Declaration of Human Rights” People’s Daily, December 10, 1988. 30. UNGA Resolution 2145(XXI). 31. “ Reports of International Court”, 1980. 2018] ON THE MAKING AND SIGNIFICANCE OF THE UNIVERSAL 497 DECLARATION OF HUMAN RIGHTS international human rights documents today, its basic spirit is often invoked in international human rights legislation and promotion practice, countries and scholars have different ideas regarding whether the Declaration is legally binding on UN member states. Most scholars believe that the Declaration is only a statement of principles and has no legal binding force; it is up to the signatory countries themselves to decide to what extent the rights stated in the Declaration are protected according to their own wishes and needs; in real life, it is more of a statement of the determination of all countries to protect human rights and the states bear only moral responsibility rather than mandatory legal obligations. Human rights scholar Tom J. Farer has stated that, “Most scholars hold the following views: the Declaration is more of a clarification of moral values than a set of legally binding norms.”32 Hans Kelsen, a well-known jurist and founder of the Vienna School, also stated that “the Declaration is not in nature an international agreement that binds the members of the United Nations.”33 Mrs. Roosevelt stated earlier at the passage of the Declaration that “the Declaration is neither a treaty, nor an international agreement; it neither is nor wants to be an overview of a law or legal obligation.”34 However, other scholars believe that the Declaration does have a binding force in the customary law sense considering the influence of the Declaration. For example, famous Chinese law expert Wang Tieya believes that the Declaration as a UN resolution should be “accepted by a state if it agrees with it, and such acceptance cannot be said to be unbinding.”35 K. Kartashin, a scholar of the former Soviet Union, stated even more bluntly that “the fundamental rights and freedoms stated in the Universal Declaration of Human Rights have now been regarded by countries as legally binding habits or contractual principles.”36 Despite such differences in understanding, it is generally agreed that, for the world today, the worth of the Declaration lies mainly in the international moral binding force imposed on the states, and in the attempts to encourage the state to take the initiative to restrain its own behavior regarding human rights through common standards. It has very limited legal binding force, if any. Otherwise, it would be pointless to formulate an international human rights convention with real legal binding force in addition to the Declaration. In the sense of international politics and international human rights, an exaggeration of the legal binding force of the Declaration is unfavorable to developing countries. After all, compared with international human rights conventions, the Declaration reflects more the ideas of the developed Western world on human rights, and adopts much fewer demands and claims regarding human rights by developing countries than the Conventions do. In this sense, people also prefer to accept the moral rather than the legal worth of the Declaration. The differences in understanding of the effectiveness and binding force do not impact on the worth and significance of the Declaration. On the contrary, such differ-

32. Tom J. Farer, “United Nations and Human Rights,” 8. 33. Hans Kelsen, Principles of International Law (Beijing: Huaxia Publishing House, 1989), 121. 34. UN. Documents, E/CN4/SR206, p.12. 35. Wang Tieya, “United Nations and International Law,” Chinese Journal of International Law (1986): 19. 36. K. Kartashin, “Human Rights in the Contemporary World,” International Affairs 1 (1979). 498 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 480 ences and even disputes themselves fully reflect the broad dissemination and deep influence of the spirit of the Declaration. Professor Fei Xiaotong believed that “the Dec- laration as the first international document on human rights has laid the foundation for the practice in international human rights and has had a deep impact.”37 Over the past 70 years, the United Nations has made outstanding achievements in human rights, and a law based on the common rights stated in the Declaration has been formed and this is one of the major achievements of the United Nations. Today, the awareness of human rights has long been deeply rooted in the minds of the people, and the international movement of human rights protection has reached a new high level. Only by continuing to uphold the spirit and purpose of the Declaration, comprehensively understanding the basic principles and directions of the Declaration in protecting human rights, abandoning prejudice and mutual accusation can we reach consensus under the guidance of the spirit of the Declaration and make real progress in protecting international human rights. (Translated by CHANG Guohua)

37. “ The Capital Commemorates 40 Years Since the Adoption of the Universal Declaration of Human Rights” People’s Daily, December 10, 1988. THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

Dignity: the Overlap of the Universal Declaration of Human Rights and Traditional Chinese Culture

ZHAO Jianwen*

Abstract: Human dignity is the fundamental concept of the Uni- versal Declaration of Human Rights and serves as the theoretical backbone for the international human rights system. Chinese culture has an excellent tradition of treasuring the dignity and value of people. The provisions on dignity in the Declaration can find their historical origins in traditional Chinese culture. The dignity of people has a supreme status and value in traditional Chinese culture. Chinese “etiquette” culture has a long tradition of respecting the dignity of people. Achieving benevolence through etiquette is the basic way to protect human dignity. Etiquette in ancient China was constrained by inequality and historical limitations, but it also had the elements of respecting or honoring others, and had the practical function of respecting, maintaining and achieving human dignity. The effective implementation of etiquette requires the fulfillment of people’s basic needs. Progressing from xiao kang (moderate prosperity) to da tong (great harmony) is the process of approaching the human rights standards of human dignity and equal rights that all nations and all peoples should strive to achieve. Keywords: Universal Declaration of Human Rights  dignity  China traditional culture

“Dignity” “freedom” and “responsibility” are basic concepts and the theoretical backbone of the Universal Declaration of Human Rights (hereinafter referred to as the Declaration). The Human Rights Council has called on states around the world to explore and carry forward the traditional human values related to dignity, freedom and responsibility in relevant resolutions.1 These values also have a prominent position in traditional Chinese culture. Under the guidance of the provisions in the Declaration, this thesis pays special attention to the traditional Chinese culture related to “dignity”.

* ZHAO Jianwen ( 赵建文 ), Researcher and Ph.D. Supervisor of Institute of International Law of Chinese Academy of Social Sciences 1. On September 27, 2012, the UN Human Rights Council adopted a resolution (A/HRC/RES/21/3) calling on the international community to better recognize and understand the positive significance of traditional values for the promotion and protection of human rights. It is clarified in the resolution that the traditional human 1. values include dignity, freedom and responsibility. 500 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 499

I. Reflection of Human Dignity and its Position in Traditional Chi- nese Culture It is clarified in the Preamble to the Declaration that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” It emphasizes that the dignity of all members of the human family is inherent and it is inseparable from “their equal and inalienable rights.” After the Declaration, it was confirmed in the preamble to International Cove- nant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights that “all rights derive from the inherent dignity of the human person.” It is stated in the Vienna Declaration and Programme of Action adopted in 1993 that “all human rights derive from the dignity and worth inherent in the human person.” In international human rights law, dignity is regarded as an inherent aspect of being human and the source and logical premise all rights. It is closely linked to such concepts or ideas as freedom, equality, non-discrimination, and that every individual should be respected. The protection and promotion of human rights is the protection and promotion of human dignity. “Man’s dignity, by definition, is man’s inherent nobility and stateliness, which are the essential qualities of being a person. From a historical perspective, the concept of dignity derives from man’s reason and morality. In terms of content, dignity incorpo- rates a generality and recognition of the importance of man’s value.”2 Human dignity is determined by the existence of a person, so it is an inherent quality of human life. Based on reason and morality, human dignity is an essential quality that differentiates a person from other living beings. All human civilizations emphasize the value of human dignity. In the history of Western ideas, Immanuel Kant turned the recognition of human dignity from “external value” to “inherent value”. He considered that being human is the purpose of a person not the means to achieve other purposes. According to Kant, “In the kingdom of purpose, everything is valuable or with dignity. The valuable could be replaced as the equivalent of something. On the contrary, the precious things that go beyond all values and deny all equivalents are those with dignity.”3 In the opinion of Kant, human dignity has no equivalent and cannot be transferred, so it is of unique significance. Zhang Dainian pointed out that “human dignity is a term of modern times. But although there was no such term in ancient China, the idea is not new. The terms for expressing human dignity in ancient China include “determined virtue” and “lofty spirit”. The origin of the idea was very early. It is written in Gu Hexagrams in the Book of Changes of the early Western Zhou Dynasty that “the sixth nine, undivided, shows us one who does not serve either king or feudal lord, but in a lofty spirit prefers (to attend to) his own affairs.” Meanwhile, it is written in Xiang Zhuan of the Book of

2. Luo Haocai, “Different Cultures Show Same Respect for Human Dignity, Speech of Luo Haocai at the opening ceremony of the 4th Beijing Forum on Human Rights,” Guangming Daily, September 22, 2012. 3. Kant, Groundwork for the Metαphysics of Morαls, trans. Allen W. Wood (New Haven and London: Ya1e Uni- versity Press, 2002), 52. 2018] DIGNITY: THE OVERLAP OF THE UNIVERSAL DECLARATION OF 501 HUMAN RIGHTS AND TRADITIONAL CHINESE CULTURE

Changes that “he does not serve either king or feudal lord, but his aim may be a model (to others) with determined virtue.” The act to “refuse to serve either king or feudal lord’ was considered as of lofty spirit. Those who refuse to serve either king or feudal lord are not submitted to privileges, so they could maintain the independence of the personality. This is the oldest idea of human dignity.”4 Many concepts or examples similar to the “determined virtue” and “lofty spirit” can be found in the classics of Confucianism. To sacrifice life to preserve virtue and maintain righteousness. The Master said, “The determined scholar and the man of virtue will not seek to live at the expense of injuring their virtue. They will even sacrifice their lives to preserve their virtue complete.” (Wei Ling Gong in the Analects) Mencius said, “I like life, and I also like righteousness. If I cannot keep the two together, I will let life go, and choose righteousness.” (Gao Zi I in Mencius) In Chinese history, “the behavior to sacrifice the life for preserving the virtue complete and maintaining righteousness is the helpless and unrepentant choices as well as the necessary sacrifice which was considered as a worthy death of those who adhere to the mainstream traditional Chinese value for protecting their dignity... The voluntary choice and self-sacrifice epitomize the long standing noble spirit of the Chinese nation developed gradually over thousands of years.”5 To be killed but not be disgraced. It is pointed out in the Conduct of the Scholar in the Book of Rites that “with the scholar friendly relations may be cultivated, but no attempt must be made to constrain him; near association with him can be sought, but cannot be forced on him; he may be killed, but he cannot be disgraced... such is his boldness and determination. “ The will of a common man cannot be taken from him. The Master said, “The commander of the forces of a large state may be carried off, but the will of even a common man cannot be taken from him.” (Zi Han in the Analects) It is pointed out in the Conduct of the Scholar in the Book of Rites that “his person may be placed in peril, but his aim cannot be taken from him. Though danger may threaten him in his undertakings and wherever he is, he will still pursue his aim, and never forget the afflictions of the people, (which he would relieve) such is the anxiety which he cherishes.” To nourish the vast, flowing passion-nature. Mencius said: “To dwell in the wide house of the world, to stand in the correct seat of the world, and to walk in the great path of the world; when he obtains his desire for office, to practice his principles for the good of the people; and when that desire is disappointed, to practice them alone; to be above the power of riches and honors to make dissipated, of poverty and mean condition to make swerve from principle, and of power and force to make bend. These characteristics constitute the great man.” (Teng Wen Gong II in Mencius) It is written in Gong Sun Chou I in Mencius that “‘I venture to ask,’ said Chou, ‘wherein you, Master, surpass Gao.’ Mencius told him, ‘I understand words. I am skillful in nourish-

4. Zhang Dainian, “Ideas of Human Dignity in Ancient China,” International Confucianism Studies 2 (1996): 61. 5. Zhou Kezhen, “Concept of Freedom, Democracy and Human Rights in Chinese Culture—Also on Labor Rights as Historical Precondition for Complete Realization of Realistic Human Rights,” in Proceedings of the 5th Cross-culture Human Rights International Symposium on Traditional Spirit and Culture Value, ed. Chang Jian and Tom Zwart (Beijng: China Intercontinental Communication Center, 2018), 85. 502 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 499 ing my vast, flowing passion-nature. Chou pursued, ‘I venture to ask what you mean by your vast, flowing passion-nature!’ The reply was, ‘It is difficult to describe it. This is the passion-nature: It is exceedingly great, and exceedingly strong. Being nourished by rectitude, and sustaining no injury, it fills up all between heaven and earth. This is the passion-nature: It is the mate and assistant of righteousness and reason. Without it, man is in a state of starvation. It is produced by the accumulation of righteous deeds; it is not to be obtained by incidental acts of righteousness.’ “ According to Collective Commentaries of the Four Books by Zhu Xi, “accumulation of righteous deeds is like the accumulation of good intentions. Everything done should follow the principle of righteousness.” We can learn from the comment of Zhu Xi that “the vast, flowing passion-nature” comes from “the accumulation of righteous deeds.” It is cultivated in the long term accumulation of good intentions over time.” To refuse to yield to high position and great wealth. Confucius praised Bo Yi and Shu Qi for “refusing to surrender their wills, or to submit to any taint in their persons”. (Wei Zi in the Analects) Mencius said, “The able and virtuous monarchs of antiquity loved virtue and forgot their power. And shall an exception be made of the able and virtuous scholars of antiquity, that they did not do the same? They delight- ed in their own principles, and were oblivious of the power of princes. Therefore, if kings and dukes did not show the utmost respect, and observe all forms of ceremony, they were not permitted to come frequently and visit them. If they thus found it not in their power to pay them frequent visits, how much less could they get to employ them as ministers?” (Jin Xin I, Mencius) It is pointed out in the Conduct of the Scholar in the Book of Rites that “The scholar sometimes will not take the high office of being a minister of the son of Heaven, nor the lower office of serving the prince of a state... although the offer were made to share a state with him, it would be no more to him than the small weights of a balance; he will not take a ministry, he will not take an office — such are the rules and conduct he prescribes to himself.” Kong Yinda, the economist of Tang Dynasty, made the following interpretation to the paragraph in Notes and Commentaries for the Book of Rites, “those who would not take a ministry or an office follow the rules and conducts they prescribe to themselves, so it is natural for them to do so.” According to Biographies of Alchemists in Book of the Later Han, “Emperor Shun of Han said to Fan Yin, ‘I can provide your daily subsistence or kill you, make you of high social status or a humble man, and let you be rich or poor, how could you hide you face from my order?’ Fan Yin responded, ‘it is my destiny to lead a good life or die an ultimate death, how can you dominate my life. I consider the tyrant as my enemy, how could I seek the so called high social status in the palace? Although I lead a simple life, I am self-satisfied and refuse to make a change, how could I be a humble man? You could not dominate my life. If you do not show respect to me, I would not accept you invitation to get high salary in the palace; if I can realize my aspirations, I would not be tired of the life even without sufficient food. How can you make me rich or poor?’ “ The dialogue reflects the spirit of Fan Yin to refuse to surrender his will to the emperor. The sentence in the poem of Li Bai that “how can I gravely bow and scrape to men of high rank and men of high office who never will suffer being shown an honest-hearted face” also demonstrates such spirit. 2018] DIGNITY: THE OVERLAP OF THE UNIVERSAL DECLARATION OF 503 HUMAN RIGHTS AND TRADITIONAL CHINESE CULTURE

To refuse the food handed out in contempt. Mencius said: “here are a small bas- ket of rice and a platter of soup, and the case is one in which the getting them will preserve life, and want of them will be death; if they are offered with an insulting voice, even a vagrant will not receive them, or if you first tread upon them, even a beggar will not stoop to take them.” (Gao Zi I in Mencius) Even a beggar will not take the food handed out in contempt. According to Tang Dong II in the Book of Rites, “During a great dearth in Qi, Qian Ao had food prepared on the roads, to wait the approach of hungry people and give to them. (One day), there came a famished man, looking as if he could hardly see, his face covered with his sleeve, and dragging his feet together. Qian Ao, carrying with his left hand some rice, and holding some drink with the other, said to him, ‘Poor man, come and eat.’ The man, opening his eyes with a stare, and looking at him, said, ‘It was because I would not eat “Poor man come here’s” food, that I am come to this state.’ Qian Ao immediately apologised for his words, but the man after all would not take the food and died. When Zeng-zi heard the circumstances, he said, ‘Was it not a small matter? When the other expressed his pity as he did, the man might have gone away. When he apologised, the man might have taken the food.’” The hungry man would rather die than taking the food provided in contempt, yet Zeng-zi said that it is reasonable to refuse the food provided in contempt but the food could be taken when Qiao Ao apologised. This comment also takes the dignity of a hungry man into consideration. Therefore, it can be found that the dignity of people has a supreme status and value in traditional Chinese culture. In modern times, the dignity of the Chinese had suffered from the infringement of foreign aggressors. It is pointed out in the White Paper on the Human Rights in China published in 1991 that “under the imperialists’ colonial rule, the Chinese people had their fill of humiliation and there was no personal dignity to speak of” and “The founding of the People’s Republic of China... The Chinese people have stood up as the masters of their own country; for the first time they have won real human dignity and the respect of the whole world. The Chinese people have won the basic guarantee for their life and security.” The most important protection of dignity of the people is inseparable from a set of effective institutional arrangements. Only when the dignity of the people is turned into the legal rights can we effectively protect it. It is stipulated in Article 38 of the Constitution promulgated for implementation in 1982 that “the personal dignity of citizens of the People’s Republic of China is inviolable. Insult, libel, false accusation or false incrimination directed against citizens by any means is prohibited.” It is stipulated in Article 109 of the General Rules of the Civil Law of China promulgated in 2017 that “the personal freedom and dignity of a natural person is protected by law.” The Constitution and laws in China are providing fully protection for the dignity of the people. II. Human Dignity and the Chinese “Etiquette” Culture with a Long History During the drafting of the Universal Declaration of Human Rights, representatives of some countries advocated to include such content with specific religious color 504 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 499 as “God is the source of human rights” into article one. Zhang Pengchun, the Chinese representative pointed out these content could not and should not be mentioned in a declaration for the whole world. He added that “when the Declaration will undoubtedly be accepted by the majority of the member states (of the UN), the majority of population in the field of human rights should not be neglected. Representatives from China think that the population of China accounts for a large part of the world population. They hold different ideas and traditions from the Christianity in the West. These ideas include decent manners, courtesy, etiquette and consideration for others. Never- theless, representatives from China did not propose to mention these in the declaration although Chinese culture, as an integral part of morality and ethics, has an extremely important influence on people’s behavior. It is expected that representatives from other countries could show an equal attitude and withdraw the proposal to add something metaphysical in the amendment of article one. Similarly, the era of religious intoler- ance is over to western civilization.”6 The opinion of Zhang Pengchun gained the support of representatives from most countries. The contents of the Declaration are free from the idea to claim, imply or deny that international human rights system is based on any specific religious ideas or theories. The traditional Chinese culture of “decent manners, courtesy, etiquette and consideration for others” in terms of “the way people behave” in Zhang Pengchun’s example mostly belongs to the realm of traditional etiquette culure in China. For the term itself, “the Chinese word for “etiquette is pronounced as “li yi”. Li refers the basic principles while yi means the fulfillment of these principles.” “The basic principles are general laws of the country.” “The fulfillment of them are in details and demonstrated in courteous behaviors and ritual ceremonies.” 7The etiquette stressed by Zhang Pengchun here is mainly the courteous behaviors to be fulfilled. The major purpose for sages in ancient China to establish the etiquette system is naturally to enhance national governance and social harmony. Meanwhile, it embodies the consideration for personal dignity. If a person’s behavior is consistent with the requirement for “decent manners, courtesy, etiquette and consideration for others”, it would not only improve the respect for the dignity of others but also enhance the sense of dignity for oneself. China is known as a state of etiquette and ceremonies. “Etiquette” has played an important role in people’s minds since the source of the Chinese culture. The theme of Xiang Shu in the Book of Odes is to criticize those who observe no rules of propriety, “Look at a rat, it has its skin; but a man should be without dignity of demeanour. If a man have no dignity of demeanour, what should he but die? Look at a rat, it has its teeth; but a man shall be without any right deportment. If a man have not right deportment, what should he wait for but death? The mouse has teeth and the people are endless (shame). Look at a rat, it has its limbs; but a man shall be without any rules

6. Gudmundur Alfredsson and Asborn Eide, Universal Declaration of Human Rights: A Common Standard of Achievement, trans. China Society for Human Rights Studies (Chengdu: Sichuan People’s Publishing House, 1999), 58-59. 7. Fan Wenlan, An Introduction to the Study of Confucian Classics (Beijing: Beijing Confucianism Studies Press, 1933), 247-248. 2018] DIGNITY: THE OVERLAP OF THE UNIVERSAL DECLARATION OF 505 HUMAN RIGHTS AND TRADITIONAL CHINESE CULTURE of propriety. If a man observe no rules of propriety, why does he not quickly die? The mouse has a body, and the person is rude.” It is criticized in the poem that those “without dignity of demeanour”, “without any right deportment” and “without any rules of propriety” are even worth than the rat should die quickly. According to the Chronicle of Zuo, “etiquette is the natural law and the righteousness behavior that the people should follow. It is the unalterable principle upheld by the people.” It means that etiquette is the natural law that should not be changed and the people should act according to the principles of etiquette. In Confucianism, the rules of propriety are considered as the criteria for telling the difference between human and animal. It is pointed out in Summary of the Rules of Propriety I in the Book of Rites that “the course (of duty), virtue, benevolence, and righteousness cannot be fully carried out without the rules of propriety; nor are training and oral lessons for the rectification of manners complete; nor can the clearing up of quarrels and discriminating in disputes be accomplished; nor can (the duties between) ruler and minister, high and low, father and son, elder brother and younger, be determined; nor can students for office and (other) learners, in serving their masters, have an attachment for them; nor can majesty and dignity be shown in assigning the different places at court, in the government of the armies, and in discharging the duties of office so as to secure the operation of the laws; nor can there be the (proper) sincerity and gravity in presenting the offerings to spiritual beings on occasions of sup- plication, thanksgiving, and the various sacrifices. Therefore the superior man is respectful and reverent, assiduous in his duties and not going beyond them, retiring and yielding — thus illustrating (the principle of) propriety. The parrot can speak, and yet is nothing more than a bird; the ape can speak, and yet is nothing more than a beast. Here now is a man who observes no rules of propriety; is not his heart that of a beast? But if (men were as) beasts, and without (the principle of) propriety, father and son might have the same mate. Therefore, when the sages arose, they framed the rules of propriety in order to teach men, and cause them, by their possession of them, to make a distinction between themselves and brutes.” According to Against Physiognomy in Xun Zi, “the reason for people to be human is not that they can stand on two feet and with no hair-covered body but that they can think. As a result, beasts have fathers and sons but not the kinship and they have gender difference but not the moral standards between male and female. Therefore, human beings can think over the distinctions.” “The most important think to think is reputation which is determined by the rules of propriety.” The difference between human and beasts lies in the response to the rules of propriety, which can be concluded that dignity is the difference between human and beasts. There is a logical consistency between etiquette and dignity. Major ancient Chinese classics about “etiquette” include the Rites of Zhou, the Book of Etiquette and Ceremonial and the Book of Rites. The first is the Rites of Zhou, originally known as Officers of Zhou. Legend has it that it was written by the Duke of Zhou. In the Rites of Zhou, the governance bodies of the country are put into six categories: The Offices of the Heaven, Offices of Earth, Offices of Spring, Offices of Summer, Offices of Autumn and Offices of Winter. The official system covers not only the social institutions of the “states” and “government”, like the national 506 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 499 ceremonial system such as sacrificial rites, giving audience of emperor, naming a state, imperial inspection tour and funerals, but also the livelihood of the people. For example, it is stipulated in Offices of Earth on taxation and division of land that “six measures should be taken to ensure the livelihood of the people. The first is caring for the young. The second is to support the elderly. The third is to help those in difficulty. The fourth is to promote poverty relief. The fifth is to reduce and exempt the taxes and corvée of the disabled. The sixth is to reassure the rich with equal policy on taxes and corvée.” If all these measures are taken, it could indeed solve a variety of problems of livelihoods of the people related to poverty, vulnerability, disability and diseases. The second is the Book of Etiquette and Ceremonial which is considered as a work of Con- fucius in the Records of the Grand Historian. The Book of Etiquette and Ceremonial is a classic text about “etiquette”. 15 etiquette systems are recorded, including capping rites, nuptial rites, Rites attendant on the meeting of common officers with each other, Rites of the district symposium, Rites of courtesy calls, Rites of the (imperial) audience, mourning rites, and Rites of offering, demonstrating the respect for human dignity. For example, “the rites attendant on the meeting of common officers with each other” requires the host to “decline” the visitor with thanks through the gatekeeper because he is flattered when the guest condescends to visit. The visitor can go home for the host to go to visit him immediately. If the visitor insists on meeting the host after receiving repeated “decline”, the host could make the decision to meet him but should express the idea that “he does so to show respect for the guest.” The third is the Book of Rites, a collection of texts describing the ceremonial rites by Pre-Qin Confucianism. Some chapters of the Book of Rites explain the Rites of Zhou, like Li Yun (Ceremonial Usages) and the Zenzi Wen (Questions of Zeng-zi); some explain the Book of Etiquette and Ceremonial, like Guan Yi (The Meaning of the Ceremony of Capping) and Hun Yi (The Meaning of the Marriage Ceremony); some provide supplements to the etiquettes of predecessors, like Qu Li (Summary of the Rules of Propriety) and Sang Fu Xiao Ji (Record of Small Matters in the Dress of Mourning); and some explain the idea to rule the country with etiquette of the Confucianism, like Wang Zhi ( Royal Regula- tions) and Wen Wang Shi Zi (King Wen as Son and Heir). The Book of Rites covers not only courteous behaviors and ritual ceremonies but also the basic principles. There are many concepts or examples relevant to “determined virtue” and “lofty spirit” to carry forward human dignity and its value, political thoughts about the society of “Da Tong” (great harmony) and “Xiao Kang” (moderate prosperity), and rules of etiquette designed for respect for others and promotion of harmonious relationships between people. Of course, almost all Confucian classics have content about “etiquette” and involve the issue of human dignity in addition to the above mentioned three classics. In the development process of Chinese history, “etiquette” has gradually developed into a huge institutional and ideology system. “From the prospective of the long history, rich connotation, and wide influence of etiquette system and customs, Chinese culture could also be considered as a culture of etiquette.”8 For human rights, the culture of etiquette pays special attention to human dignity in essence.

8. Feng Tianyu, He Xiaoming and Zhou Jiming, History of Chinese Culture (Shanghai: Shanghai People’s Pub- lishing House, 2015), 305. 2018] DIGNITY: THE OVERLAP OF THE UNIVERSAL DECLARATION OF 507 HUMAN RIGHTS AND TRADITIONAL CHINESE CULTURE

III. Achieving “Ren(Conscience)” Through “Etiquette”: the Basic Way to Protect Human Dignity According to article 1 of the Universal Declaration of Human Rights, people “... are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The concept of “conscience” is promoted by the Chinese representative Zhang Pengchun who transferred it from “Benevolence” as a core concept of Confucianism. During the drafting of the Declaration, Zhang introduced such concepts reflecting traditional Chinese culture as “benevolence”, “etiquette”, and the tao into the consultation and integrated the value representing the core value of Con- fucianism “benevolence” into article 1 of the Declaration as the ideological basis. In this way, the Universal Declaration of Human Rights contains ideas beyond traditional western philosophy. The rights demonstrated in the Declaration have broader moral foundation. As a result, the universality of the Declaration is enhanced.9 Then what is “benevolence”? The original meaning for the Chinese character for “benevolence” is that two people are together and inseparable. When answering the questions of his disciples, Confucius repeatedly explained the meaning of “benevolence” from different angles. Fan Chi asked about benevolence, the Master said, “It is to love all men.” (Yan Yuan in the Analects) How to “love all men”? Zi Gong asked about benevolence, the Master said, “Now the man of perfect virtue, wishing to be established himself, seeks also to establish others; wishing to be enlarged himself, he seeks also to enlarge others. To be able to judge of others by what is nigh in ourselves — this may be called the art of virtue.” (Yong Ye in the Analects) It reveals the connotation of “benevolence” from a positive perspective. Zhong Gong asked about perfect virtue, the Master said, “not to do to others as you would not wish done to yourself”. (Yan Yuan in the Analects) It reveals the connotation of “benevolence” from a negative perspective. Zhang Zai explained, “it is benevolence to love others like one loves himself”. (Zhong Zheng (Equality) in Zheng Meng (Enlightenment)) “To achieve success, one should let others succeed as well” and “not to do to others as you would not wish done to yourself” is to put oneself into others’ shoes. “The two sentences summarize the longing of Confucius for the ideal personality and social order. It indicates that people should not only be concerned with their own existence but also the existence of others, so we should treat others equally, respect others and help others.”10 According to the Doctrine of the Mean, “benevolence is the characteristic element of humanity, and the great exercise of it is in loving relatives.” Mencius said, “he is affectionate to his parents, and lovingly disposed to people generally. He is lovingly disposed to people generally, and kind to creatures.” (Jin Xin I in Mencius) Cheng Hao said, “benevolence takes the great harmony of the universe as its ultimate goal.” (Shi Ren (Recognition of Benevolence) in the Posthumous Collection of Cheng Hao and Cheng Yi (1st Half of Vol II )) According to Zhang Zai, “all people are my compatriots and all things are my friends.” (Gan Chen in Zheng Meng (Enlightenment)) Wang Fu-

9. Sun Pinghua, Zhang Pengchun: An Important Designer of World Human Rights System (Beijing: Social Sci- ences Academic Press, 2017), 396. 10. Xia Hai, Guo Xue Yao Yi (Essentials of Chinese Culture) (Beijing: Zhonghua Book Company, 2018), 169. 508 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 499 zhu further explained the thought of Zhang Zai that “we should show benevolence to the people and love for everything”. (Annotation for Zheng Meng) In Confucianism, the heaven, the earth, and the people are considered as a big family, so human should be close to each other and everything. Therefore, the connotation of “benevolence” includes not only the relationship between people but also that between human and nature. Such insights are ideological wealth across the ages. Nowadays, the human dignity and rights are increasingly linked to the relationship between human and nature. If the connotation of “benevolence” is explained in the contemporary human rights discourse, it could be close to the meaning of “humanity” or “humanitarianism”. According to San Fu Si Zhi (The Four Principles Underlying the Dress of Mourning) in the Book of Rites, “all ceremonial usages looked at in their great characteristics are the embodiment of (the ideas suggested by) heaven and earth; take their laws from the (changes of the) four seasons; imitate the (operation of the) contracting and developing movements in nature; and are conformed to the feelings of men. It is on this account that they are called the Rules of Propriety; The mourning dress has its four definite fashions and styles, the changes in which are always according to what is right — this is derived from the (changes of the) four seasons. Now, affection predom- inates; now, nice distinctions; now, defined regulations; and now, the consideration of circumstances — all these are derived from the human feelings. In affection we have benevolence; in nice distinctions, righteousness; in defined regulations, propriety; and in the consideration of circumstances, knowledge. Benevolence, righteousness, propriety, and knowledge — these make up the characteristic attributes of humanity.” According to Discourse on Ritual in Xun Zi, “propriety is the most prudent in dealing with the birth and death of the people. Birth is the start of the life and death is the end of the life. Humanity is achieved with proper propriety for birth and death.” According to Rites and Music in Bai Hu Tong, “ propriety represent the harmony of the nature in the universe, so we should respect the heaven and the earth, the gods and ghosts, the superior and inferior, and the humanity.” The title for the introduction part of the Book of Great Unity written by Kang Youwei is that “all men have a mind which cannot bear to see the sufferings of others.” He thought that the “mind to not bear to see the sufferings of others” is “benevolence” to love others and the spirit of humanitarianism.11 Tan Citong carried forward the ideological tradition of “benevolence” in Chinese culture and “injected the new blood of freedom, equality, and fraternity into it to meet the theoretical needs of Hundred Days’ Reform to transform it into the core of his new ideology system.”12 “Benevolence” is the basic norm for personal moral cultivation in Confucianism as well as the fundamental component of the Confucian political ideas. Etiquette is the form of benevolence and the code of conduct in line with benevolence. Benevolence is the essence of etiquette. It is the fundamental strategy for Confucianism to realize its political idea to realize “benevolence” through “etiquette”. According to the Con-

11. Kang Youwei, the Book of Great Unity, noted by Qi Bolin (Liaoning: Liaoning People’s Publishing House, 1994), 5 of the “introduction”. 12. Jia Runguo, On Benevolence — Collection of Works by Tan Sitong (Liaoning: Liaoning People’s Publishing House, 1994), 6 of the “introduction”. 2018] DIGNITY: THE OVERLAP OF THE UNIVERSAL DECLARATION OF 509 HUMAN RIGHTS AND TRADITIONAL CHINESE CULTURE duct of the Scholar in the Book of Rites, “the rules of ceremony are the demonstration of it.” Confucius used the benevolence as the core to elaborate on etiquette. The Mas- ter said, “If a man be without the virtues proper to humanity, what has he to do with the rites of propriety?”(Ba Yi in the Analects) According to Confucius, “to subdue one’s self and return to propriety, is perfect virtue. If a man can for one day subdue himself and return to propriety, all under heaven will ascribe perfect virtue to him. Is the practice of perfect virtue from a man himself, or is it from others?” (Yan Yuan in the Analects) “To subdue one’s self and return to propriety, is perfect virtue... Con- fucius reveals that only through propriety can we develop virtue (benevolence). Only with virtue (benevolence) can we exercise etiquette properly and learn how to change them. The cycle is precisely a component of the profoundness of Confucianism.”13 Why can “benevolence” be realized through “etiquette”? Because “etiquette” can bring “harmony”. The process from “etiquette” to “harmony” is the way to realize “benevolence” and human dignity. According to Ceremonial Usages in the Book of Rites, “when it is said that (the ruler being) a sage can look on all under the sky as one family, and on all in the Mid- dle states as one man, this does not mean that he will do so on premeditation and purpose. He must know men’s feelings, lay open to them what they consider right, show clearly to them what is advantageous, and comprehend what are their calamities. Being so furnished, he is then able to effect the thing. What are the feelings of men? They are joy, anger, sadness, fear, love, disliking, and liking. These seven feelings belong to men without their learning them. What are ‘the things which men consider right?’ Kindness on the part of the father, and filial duty on that of the son; gentleness on the part of the elder brother, and obedience on that of the younger; righteousness on the part of the husband, and submission on that of the wife; kindness on the part of elders, and deference on that of juniors; with benevolence on the part of the ruler, and loyalty on that of the minister — these ten are the things which men consider to be right. Truthfulness in speech and the cultivation of harmony constitute what are called ‘the things advantageous to men.’ Quarrels, plundering, and murders are ‘the things disastrous to men.’ Hence, when a sage (ruler) would regulate the seven feelings of men, cultivate the ten virtues that are right; promote truthfulness of speech, and the maintenance of harmony; show his value for kindly consideration and complaisant courtesy; and put away quarrelling and plundering, if he neglect the rules of propriety, how shall he succeed?” The “etiquette” as the norm of behavior for all members of society comes from “the feelings of men” and “the things which men consider right”. “Quarrelling and plundering “are detrimental to human dignity. According to Rites and Music in Bai Hu Tong, “Humility should be followed for Etiquette. So we should be humble and respect others. Dispute can be avoided in this way.” “No dispute” is conducive to keeping human dignity. Aggressive wars are the most detrimental to human dignity. Therefore, “human dignity is limited to the situation of unselfish, altruistic, compassionate, emotional dedication for other creatures

13. Michael Puett and Christine Gross-Loh, The Path — A New Way to Think About Everything, trans. Hu Yang (Beijing: CITIC Press Group, 2017), 52. 510 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 499 and universe. As long as there is aggression for greed, there will not be dignity. Ag- gression for greed is common in the world, yet it is something shameful.”14 “In practicing the rules of propriety, a natural ease is to be prized. In the ways prescribed by the ancient kings, this is the excellent quality.” (Xue Er in the Analects) “Etiquette” is in the impartial and rational golden mean for the purpose of “kindly consideration and complaisant courtesy for putting away quarrelling and plundering.” “Etiquette” pays attention to dignity in differences and harmony. IV. Elements of “Respect” or “Reverence” in “Etiquette” and Hu- man Dignity It is stipulated in article 1 of the Universal Declaration of Human Rights that “All human beings are born free and equal in dignity and rights,” which emphasizes the equality of human dignity. However, inequality is ubiquitous in the society of ancient times and the difference in “etiquette” is of historic limitations. The question is whether the human dignity can be maintained to some extent in such inequality. In ancient China, the direct function of “etiquette” is to “tell the difference.” In other words, it helps to tell the differences in roles, identities and status of people in different social relationships to maintain the social order that everyone is in the right position. “Etiquette” is used to regulate “the order of superiors and inferiors in the court for the emperor and officials and the transportation, clothing, food, marriage, fu- neral, sacrifice, and so on of the general public” (Ritual Treatises in the Records of the Grand Historian) Regarding the role of etiquette, Confucius pointed out when Duke Ai asked him about the rites, “without them they would have no means of regulating the services paid to the spirits of heaven and earth; without them they would have no means of distinguishing the positions proper to father and son, to high and low, to old and young; without them they would have no means of maintaining the separate character of the intimate relations between male and female, father and son, elder brother and younger, and conducting the intercourse between the contracting families in a marriage, and the frequency or infrequency (of the reciprocities between friends). (Questions of Duke Ai in the Book of Rites) Xun Zi said, “what is the difference, it is answered that it lies in high and low, old and young, rich and poor, as well as heavy and light.” (On Rites in Xun Zi) According to Summary of the Rules of Propriety in the Book of Rites, “they are the rules of propriety, that furnish the means of determining (the observances towards) relatives, as near and remote; of settling points which may cause suspicion or doubt; of distinguishing where there should be agreement, and where difference; and of making clear what is right and what is wrong.” Could the “etiquette” to distinguish high and low as well rich and poor be compatible to human dignity? Because the etiquette norms of difference also show “respect” or “reverence”, it is compatible with human dignity. The first sentence of the first chapter of the Book of Rites titled Summary of the Rules of Propriety is that “Always and in everything let there be reverence; with the deportment grave as when

14. Gou Chunsheng, Zhu Jizheng, and Chen Guodong, Forecast the 21st Century: A Dialogue Between Daisaku Ikeda and Arnold J.Toynbee (Beijing: China Intl Culture Press, 1985), 411. 2018] DIGNITY: THE OVERLAP OF THE UNIVERSAL DECLARATION OF 511 HUMAN RIGHTS AND TRADITIONAL CHINESE CULTURE one is thinking (deeply), and with speech composed and definite. This will make the people tranquil.” “Always and in everything let there be reverence” is an important feature of etiquette. In a word, all etiquette follows the principle that “always and in everything let there be reverence.” According to Summary of the Rules of Propriety I in the Book of Rites, “one should not (seek to) please others in an improper way, nor be lavish of his words. One does not go beyond the definite measure, nor encroach on or despise others, nor is fond of (presuming) familiarities. To cultivate one’s person and fulfill one’s words is called good conduct. When the conduct is (thus) ordered, and the words are accordant with the (right) course, we have the substance of the rules of propriety.” In the Classic of Filial Piety, Confucius said, “For securing the repose of superiors and the good order of the people, there is nothing better than the rules of propriety. The rules of propriety are simply (the development of) the principle of reverence. Therefore the reverence paid to a father makes (all) sons pleased. The reverence paid to an elder brother makes (all) younger brothers pleased. The reverence paid to a ruler makes (all) subjects pleased. The reverence paid to the man makes thousands and myriads of men pleased. The reverence is paid to a few, and the pleasure extends to many. This is what is meant by an ‘All-embracing Rule of Conduct.’” Mencius said, “a gentleman preserves in his heart benevolence and propriety. The benevolent man loves others. The man of propriety shows respect to others. He who loves others is constantly loved by them. He who respects others is constantly respected by them. (Li Lou II in Mencius) He also pointed out, “The feeling of reverence and respect, the principle of propriety” (Gao Zi I in Mencius) and “The feeling of modesty and complaisance is the principle of propriety.” (Gong Sun Chou I in Mencius) Accord- ing to the Different Teaching of the Different Kings in the Book of Rites, “If they be courteous and modest, grave and respectful, they have been taught from the Book of Rites and Ceremonies.” According to Rites and Music in Bai Hu Tong, “the superior man who shows modesty could bring prosperity to the country. While noble, he humbles himself to the mean, and grandly gains the people. Those who humbles himself to respect others is of the mind of a gentleman. Therefore, Confucius said, ‘ceremonies performed without reverence; mourning conducted without sorrow - wherewith should I contemplate such ways?” In social relations regulated by etiquette, the dignity of the other is respected and one’s own dignity is demonstrated in one’s own daily interactions. Even for the etiquette between the princes and ministers which would be very unequal, a certain degree of dignity for the ministers is not denied. In ancient times, the prince were particularly dignified. According to Dong Zhongshu in the Han Dynasty, “with capable assistants, the prince would keep dignity and the country would be in peace.” (Li Yuan Shen in the Luxuriant Dew of the Spring and Autumn Annals) Al- though the dignity of the prince is overemphasized in the etiquette between the prince and the ministers in ancient times which shows the feature of inequality, it is unde- niable that the prince recognizes the dignity of the ministers to a certain extent under normal circumstances. According to Confucius, the relationship between the prince and the ministers is equal and mutual. He said, “a prince should employ his minister according to the rules of propriety; ministers should serve their prince with faithful- 512 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 499 ness.” (Ba Yi in the Analects) According to The Question of Duke Ai in the Book of Rites, “Confucius was sitting beside Duke Ai, when the latter said, ‘I venture to ask, according to the nature of men, which is the greatest thing (to be attended to in dealing with them).’ Confucius looked startled, changed countenance, and replied, ‘That your lordship should put this question is a good thing for the people. How should your servant dare but express his opinion on it?’ Accordingly he proceeded, and said, ‘According to the nature of men, government is the greatest thing for them.’ The duke said, ‘I venture to ask what is meant by the practice of government.’ Confucius replied, ‘With the ancients in their practice of government the love of men was the great point; in their regulation of this love of men, the rules of ceremony was the great point; in their regulation of those rules, reverence was the great point. Yes, love and respect lie at the foundation of government.’” It shows that Confucius considers that the relationship between the prince and the ministers as well as the people regulated by “etiquette” should be characterized by mutual respect and love. Mencius said, “when the prince regards his ministers as his hands and feet, his ministers regard their prince as their belly and heart; when he regards them as his dogs and horses, they regard him as another man; when he regards them as the ground or as grass, they regard him as a robber and an enemy.” (Li Lou II in Mencius) This shows that although the prince is in a dominant position, the attitude of the ministers towards the prince is determined by how the prince treats them. The ancient political creed that “the prince guides the ministers” indicates that the ministers should obey the prince, yet it is by no means that only the prince has dignity. According to Tang Zhen, the thinker in the late Ming and early Qing dynasties, “the distinction of superiors and inferiors made by the sages is for good leadership but not alienation between them. When the superiors are arrogant, the inferiors would be flattering. They become gradually alienated. When the superiors look down upon the inferiors and regard them as his dogs and horses, the talents will leave them and keep a distance from them... At that time, the singing of good singer will not be heard and the brightness of lights will not be seen. The ministers and the prince are gradually alienated... The country will be doomed.”(Yi Zun in Qian Shu) The etiquette between the prince and the ministers in the relationship of “superior and inferior” is by no means that the prince could have the privilege of acting on his own will. On the contrary, his behavior is restricted by the “etiquette”. “If a superior man love propriety, the people will not dare not to be reverent. “(Zi Lu in the Analects) It is a necessary condition for the superior man to love propriety to gain the reverence of the people. If the prince fails to abide by the norms of “etiquette” and becomes tyrannical, the ministers can make their choices. “When good government prevails in his state, he is to be found in office. (Duke Ling of Wei in the Analects) “When they are prostrated, he will keep concealed.” (Tai Bo in the Analects) When “the prince fail to employ his minister according to the rules of propriety”, the minister would keep concealed for the maintaining of his dignity. When people treat each other with due respect, within the four seas all men are brothers. According to Yan Yuan in The Analects, “let the superior man never fail rev- erentially to order his own conduct, and let him be respectful to others and observant of propriety, then all within the four seas will be his brothers.” If one could “reveren- 2018] DIGNITY: THE OVERLAP OF THE UNIVERSAL DECLARATION OF 513 HUMAN RIGHTS AND TRADITIONAL CHINESE CULTURE tially order his own conduct” and “be respectful to others and observant of propriety”, then “all within the four seas will be his brothers.” This shows that etiquette among people of different classes differences does not affect the equality of human dignity. According to Summary of the Rules of Propriety I in the Book of Rites, “Propriety is seen in humbling one’s self and giving honor to others. Even porters and peddlers are sure to display this giving honor (in some cases); how much more should the rich and noble do so (in all)!” People would treat porters and peddlers with courtesy to “display this giving honor”, who would not be “honored”? This shows that under the ancient rules of propriety, everyone can be honored to a certain extent. In Confucianism, the doctrine of benevolence integrates “differentiated affection” and “unity of the universe”. As for the relationship between etiquette and human dignity, it can be said that it integrates “differentiated etiquette” and “unity of dignity”. Therefore, it can be concluded that “‘etiquette’ in the name of the overall interest of the society is “the universal social norm to bring dignity with a long history.”15 “The traditional Chinese culture is mainly the Confucian tradition which covers potential human rights concept and reconstructs it on this basis. The concept or “essence” of human rights is established in Confucian ethics. Meanwhile, human rights are considered to be embodied in reciprocal relations. As a result, it has a dual structure emphasizing differences and the reconciliation between equality and inequality to ensure the social order and the survival of people. Moreover, the Confucian tradition, in particular the theories of Mencius, consider the inherent “dignity” of people has priority over external dignity and stresses the ability of independent judgment and action. Individual dignity is combined with moral and social rules, so personal rights and public interests should be combined accordingly.”16 “Rites bring out forcefully not only the harmony and beauty of social forms, the inherent and ultimate dignity of human intercourse; it brings out also the moral perfection implicit in achieving one’s ends by dealing with others as beings of equal dignity, as free participants in Li.”17 It is still of great significance to realize harmonious interpersonal relationships and promote respect for human dignity through the approach or method of “etiquette” in modern times. In 1994, the UN General Assembly adopted the resolution 49/184 titled United Nations Decade for Human Rights Education. It is pointed out in the preamble that “human rights education should involve more than the provision of information and should constitute a comprehensive life-long process by which people at all levels in development and in all strata of society learn respect for the dignity of others and the means and methods of ensuring that respect in all societies” and “human rights education contributes to a concept of development consistent with the dignity of women and men of all ages that takes into account the diverse segments of society

15. Li Yunlong, Traditional Culture and Human Rights Concepts in Contemporary China, Proceedings of the 5th Cross-culture Human Rights International Symposium on Traditional Spirit and Culture Value, ed. Chang Jian and Tom Zwart (Beijing: China Intercontinental Communication Center, 2018), 46. 16. Luo Zhehai, Li Yang, and Liang Tao, “Intrinsic Dignity: Chinese Tradition and Human Rights,” Research in the Traditions of Chinese Culture 1 (2013): 82. 17. Herbert Fingarette, Confucius-The Secular as Sacred, trans. Peng Guoxiang and Zhang Hua, (Nanjing: Jiang- su People’s Publishing House, 2000), 12. 514 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 499 such as children, indigenous peoples, minorities and disabled person.” In the sense of human rights, the “etiquette” in ancient China is the norm of behavior “consistent with the dignity of women and men of all ages”. V. People’s Well-being and the Realization of Human Dignity Judging from article 22 of the Declaration that “everyone, as a member of society, has the right to social security and is entitled to realization of the economic, social and cultural rights indispensable for his dignity and the free development of his personality” and article 23 that “everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection”, the realization of human dignity is inseparable from the satisfaction of the basic needs for subsistence of the people. The connotation of these principles in the Universal Decla- ration of Human Rights is clearly recognized in traditional Chinese culture. In ancient China, the necessity of certain material conditions for implementation of etiquette and realization of the rules of propriety has been recognized in Confu- cianism, which is the need to satisfy the basic livelihood of the people. Zi Gong once asked Confucious, “What do you pronounce concerning the poor man who yet does not flatter, and the rich man who is not proud?” The Master replied, “They will do; but they are not equal to him, who, though poor, is yet cheerful, and to him, who, though rich, loves the rules of propriety.” (Xue Er in the Analects) Guan Zhong made it more clear, “with sufficient food, people will be more polite, and with enough clothes, people will be more cultivated.” (Mu Min in Guanzi) According to Summary of the Rules of Propriety I in the Book of Rites, “When the rich and noble know to love propriety, they do not become proud nor dissolute. When the poor and mean know to love propriety, their minds do not become cowardly.” According to Biographies of Merchants in Records of the Grand Historian, “with sufficient food, people are more polite, and with enough clothes, people are more cultivated.’ Etiquette comes from prosperity and declines in poverty. Therefore, rich gentlemen would promote charity; when ordinary people get rich, they could adjust their ability.” When Sima Qian quoted the sentence of Guanzi, he changed “will be” into “are”, which more accurately explained that the economic foundation and the guarantee for the livelihood of the people are the only necessary condition for realization of moral civilization and human dignity. It is by no means sufficient condition or sufficient and necessary condition. VI. From Xiao Kang (moderate prosperity) to Da Tong (great harmony): Continuous Improvement of the Social Conditions for Reali- zation of Human Dignity and Equal Rights Ceremonial Usages in the Book of Rites gives a detailed and lively description of Xiao Kang (moderate prosperity) to Da Tong (great harmony).”18 Judging from the description of Xiao Kang (moderate prosperity) to Da Tong (great harmony) by

18. Xi Jinping, “Speech at a Study Session on Implementing the Decision of the Fifth Plenary Session of the 18th CPC Central Committee Attended by Officials at the Provincial/Ministerial Level, January 18, 2016,” Peo- ple’s Daily, May 10, 2016. 2018] DIGNITY: THE OVERLAP OF THE UNIVERSAL DECLARATION OF 515 HUMAN RIGHTS AND TRADITIONAL CHINESE CULTURE

Confucius, the conditions and degrees of realization of human dignity and rights are different to a great extent at the two stages of social development. The description of Xiao Kang (moderate prosperity) by Confucius is as follows, “now that the Grand course has fallen into disuse and obscurity, the kingdom is a family inheritance. Everyone loves (above all others) his own parents and cherishes (as) children (only) his own sons. People accumulate articles and exert their strength for their own advantage. Great men imagine it is the rule that their states should descend in their own families. Their object is to make the walls of their cities and suburbs strong and their ditches and moats secure. The rules of propriety and of what is right are regarded as the threads by which they seek to maintain in its correctness the relation between ruler and minister; in its generous regard that between father and son; in its harmony that between elder brother and younger; and in a community of sentiment that between husband and wife; and in accordance with them they frame buildings and measures; lay out the fields and hamlets (for the dwellings of the husbandmen); ad- judge the superiority to men of valour and knowledge; and regulate their achievements with a view to their own advantage. Thus it is that (selfish) schemes and enterprises are constantly taking their rise, and recourse is had to arms; and thus it was (also) that Yu, Tang, Wen and Wu, king Cheng, and the duke of Zhou obtained their distinction. Of these six great men every one of them was very attentive to the rules of propriety, thus to secure the display of righteousness, the realisation of sincerity, the exhibition of errors, the exemplification of benevolence, and the discussion of courtesy, showing the people all the normal virtues. Any rulers who did not follow this course were driven away by those who possessed power and position, and all regarded them as pests. This is the period of what we call Xiao Kang (moderate prosperity).” In the society of “moderate prosperity” described by Confucius, the condition to realize the “great way” in Confucianism was not mature. The world is not for the public but for “families” and “private interests”. The hereditary system was adopted for the prince and ministers. The wealth and strength were for private advantage, so it was hard to avoid the violation of human rights, turbulence, and wars. Facing the social reality, wise princes and sages “were all very attentive to the rules of propriety”. They defined the behaviors in line of “benevolence” as the rules of propriety. “The rules of propriety and of what is right are regarded as the threads by which they seek to maintain” the social order and “to show the people all the normal virtues.” As Xunzi said, “what is the origin of etiquette? It is answered that humans are born with desires. When desires could not me satisfied, it is impossible for human to give up it. When there is no limit or boundary for the pursuit of desire, there would be conflicts. Conflicts cause confusion, which would further result in poverty. In order to change the situation, sages in ancient times set rules of propriety to satisfy the desires within a certain limitations. As a result, the desire could be controlled within the limitations of material supply and the supply should not manage to satisfy the endless desire of people. They could develop together in the mutual restriction. This is the origin of etiquette.” (Discourse on Ritual in Xun Zi) In the society of moderate prosperity, the role of etiquette is to “satisfy the desires within a certain limitations” so that “the desire could be controlled within the limitations of material supply and the supply should not manage to satisfy the endless 516 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 499 desire of people”. It manages to realize the balance between the satisfaction and limitation of people’s desires. This is related to the keeping of social order and the protection of human dignity. The description by Confucius for da tong (great harmony) is as follows, “when the Grand course was pursued, a public and common spirit ruled all under the sky; they chose men of talents, virtue, and ability; their words were sincere, and what they cultivated was harmony. Thus men did not love their parents only, nor treat as children only their own sons. A competent provision was secured for the aged till their death, employment for the able-bodied, and the means of growing up to the young. They showed kindness and compassion to widows, orphans, childless men, and those who were disabled by disease, so that they were all sufficiently maintained. Males had their proper work, and females had their homes. (They accumulated) articles (of value), disliking that they should be thrown away upon the ground, but not wishing to keep them for their own gratification. (They laboured) with their strength, disliking that it should not be exerted, but not exerting it (only) with a view to their own advantage. In this way (selfish) schemings were repressed and found no development. Robbers, filchers, and rebellious traitors did not show themselves, and hence the outer doors remained open, and were not shut. This was (the period of) what we call the great harmony.” The society of great harmony described by Confucius is what he considered to be the situation during the rule of Yao and Shun before Yu of the Xia Dynasty, which embodies has political ideals on social development. Because “the Grand course was pursued” and “a public and common spirit ruled all under the sky”, the position of the prince could be given to talented people. People’s words were sincere, and what they cultivated was harmony. They made the best use of everything and everyone. Property and manpower were not for private interests. Robbers and filchers who used to violate the interests of others “didn’t show themselves”, so the outer doors remained open, and were not shut. Even the vulnerable group of “widows, orphans, childless men, and those who were disabled by disease” were all sufficiently maintained. It is like the human rights standards in article 1 of the Universal Declaration of Human Rights: All human beings are born free and equal in dignity and rights; they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Based on the brief description of “great harmony” by Confucius, Kang Youwei made the blueprint of the society of “great harmony” and pointed out the way to achieve it in his Book of Great Harmony. For example, he said that “for realizing the great harmony of agriculture, industry and commerce, the top priority is to clarify the human rights of male and female. If the violation of “human rights of male and female” is “considered as the righteous way, it would be against the natural rights of human and the world would remain in the state of moderate prosperity.” “If the great harmony and peaceful world is to be realized, the first thing is to clarify the equal rights of male and female which is the natural rights of human.”19 In short, the realization of “great harmony” starts from “clarification” of human rights according to Kang

19. Kang Youwei, the Book of Great Unity, noted by Qi Bolin (Shenyang: Liaoning People’s Publishing House, 1994), 293-295. 2018] DIGNITY: THE OVERLAP OF THE UNIVERSAL DECLARATION OF 517 HUMAN RIGHTS AND TRADITIONAL CHINESE CULTURE

Youwei. “Only when ‘human rights, equality, and independence’ are realized can the realm of “great harmony” be achieved.20 When Sun Yat-sen explained his Three Principles of the People, he pointed out “Confucius said, ‘When the Great Way prevailed, a public spirit ruled all under Heav- en’, which is a world of great harmony advocating the rights of the people... The understanding of the rights of the people can be traced back over 2,000 years ago. Nev- ertheless, it was a merely a dream at that time, like “utopia’ mentioned by foreigners. It could not be realized immediately.” 21 At present, China is in the process of completing the building of a moderately prosperous society. “Development bears on everyone’s well-being and dignity.”22 With reform and opening-up, “we have turned China into the world’s second largest economy, lifted l.3 billion people from a life of chronic shortage and brought them initial prosperity and unprecedented rights and dignity.”23 “The Chinese nation has been seeking ‘great harmony’ of the world and that all nations live together peacefully and harmoniously for build a wonderful world “when the Great Way prevailed, a public spirit ruled all under Heaven.”24 A peaceful, secure, prosperous, open and beautiful world should be a world where “countries respect others’ interests while pursuing their own and advance common interests of all” and a world approaching universal equality in “dignity and rights” for all countries and people. (Translated by HU Liang)

20. Ibid., 11. 21. Sun Yat-sen Research Society, Collected Works of Dr. Sun Yat-sen (I), ed. Meng Qingpeng (Beijing: Tuanjie Press, 1997), 138. 22. Xi Jinping, “Work Together for a Bright Future of China-Arab Relations－Speech at the Arab League Head- quarters,” People’s Daily, January 22, 2016. 23. Xi Jinping, “Speech at the Welcoming Dinner Hosted by Local Governments and Friendly Organizations in the United States,” People’s Daily, September 24, 2015. 24. Xi Jinping, “Working Together towards a Better World－Speech at the Communist Party of China (CPC) in Dialogue with World Political Parties High-Level Meeting,” People’s Daily, December 2, 2017. THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

The Universal Declaration of Human Rights and the “Spirits” of Confucian Ethics

HUANG Aijiao*

Abstract: At present, the value revealed in the Universal Decla- ration of Human Rights is under attack, and the consensus on human rights value is experiencing division globally, which asserts that “human rights can only be provided by paradox”. The root of this is that “reason”, the metaphysical nature of human rights proclaimed in the Universal Declaration of Human Rights, is infinitely magnified while the “spirit” is ignored. History and philosophy show that the Univer- sal Declaration of Human Rights entails the Confucian ethical “spirit”. At this time, this potential factor is gradually emerging in the course of world history and became a force to bridge the global division of human rights values. The significance of Confucian ethics “spirit” to the Universal Declaration of Human Rights lies in: from the perspective of “spirit”, its holistic view, bridging individual rights and collective rights; its relational view focuses on the realization of human rights and transcends the “paradox of human right; progressing from the value consensus to common action, so that in the process of judging the progress of human rights in the world, we consider not only the value consensus, but also the common action. Keywords: Universal Declaration of Human Rights  human rights  Confucian Ethnics Reason  “Spirits”

I. The Struggle Between the Two Forces of the Universal Declaration of Human Rights The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, is considered to be “a common standard to be followed by all peoples and all nations”. At the same time, it reveals and confirms some common human values, such as “basic human rights, human dignity, value, and equal rights between men and women”. In this sense, the Universal Declaration of Human Rights is considered as “the Universal Declaration of Human Rights of value consensus”. This conclusion has been proved by many facts. First, the Universal Declaration of Human Rights was a resolution voted for by the United Nations. 48 member states voted in favor of it, no member states voted against it, and 8 member states abstained from voting, including the Soviet Union, Poland, Saudi Arabia and

* HUANG Aijiao ( 黄爱教 ), associate professor in School of Marxism in Tianjin Polytechnic University, Doc- tor of Philosophy, Post-doctor of Politics. 2018] THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE 519 “SPIRITS” OF CONFUCIAN ETHICS

South Africa. Two countries voted in absentia. Second, many provisions of the Uni- versal Declaration of Human Rights have become part of customary international law. For example, in 1966, the United Nations adopted the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultur- al Rights, which reiterated the majority of human rights enumerated in the Universal Declaration of Human Rights, and gave specification and restriction. “Human rights have become the basic principle of modern international political exchanges and the common basis for mutual understanding and peaceful coexistence among countries with different political systems.”1 Third, most countries in the world have formally acceded to the International Covenant on Civil and Political Rights and the Inter- national Covenant on Economic, Social and Cultural Rights based on the Universal Declaration of Human Rights. However, the value consensus of the Universal Declaration of Human Rights presents two forces pulling in two different directions: the power to maintain the value consensus and the power to split the value consensus. In the struggle, maintaining the value consensus gained the upper hand for a long time. For example, more and more countries have acceded to international human rights conventions, and the list of human rights in the Universal Declaration of Human Rights has been incorporated in more and more UN resolutions, treaties and conventions. But the forces that are trying to split the value consensus have been reluctant to calm down, for example, the “human rights diplomacy” of the Carter administration of the United States, as well as the phenomena of racial isolation, discrimination and massacre. After entering the 21st century, the ambition of splitting the value consensus has been thoroughly exposed. For example, the refugees in the wars of Afghanistan, Iraq, Libya and Syria have continuously emerged; the United States Department of State declared to withdraw from UNESCO on October 12, 2017, which took effect on December 31, 2018; in 2018 the United States Secretary of State Mike Pompeo and the Permanent Representative of the United States to the United Nations Nikki Haley held a conference to express the “political bias” of the UN Human Rights Council and announced that the United States would withdraw from the UN Human Rights Council. The ambition to split the value consensus was severely criticized after it was exposed. With regard to the withdrawal of the United States Government from the United Nations Human Rights Council, the United Nations High Commissioner for Human Rights believes that the values enshrined in the Universal Declaration of Hu- man Rights are being attacked; China, the United Kingdom and other countries have expressed regret, while Australian Foreign Minister Julie Bishop feels “disappointed” and Russia considers the United States to be “brazen”. These criticisms reveal at least two problems: one is that the force of maintaining the value consensus is defending the value consensus of the Universal Declaration of Human Rights; the other is that the force of splitting the value consensus seriously challenges the value consensus of the Universal Declaration of Human Rights. At this moment, the two forces inherent

1. Chang Jian. Ideals, Paradoxes and Realities of Human Rights (Chengdu: Sichuan People’s Publishing House, 1992), 28. 520 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 518 in the Universal Declaration of Human Rights seem to be trying to fight a life-or- death struggle. The ambition to split the value consensus was not restrained by the severe criticism. It has become a fact that the United States continues to withdraw from the Human Rights Council of the United Nations. From the perspective of the power to safeguard the value consensus, although the United States was the leader in drafting and adopting the Universal Declaration of Human Rights, in the historical progress of the human rights, the United States gave up the role of leader to safeguard the value consensus by action and turned to its opposite of splitting the value consensus. In fact, severe criticism only seems pale and powerless, we need to find resources to bridge the forces of maintaining the value consensus with the forces of splitting value consensus. If we look for resources from outside, it may be counterproductive, because the embedding of external resources requires adaptation and integration. So the effective way is to find within the Universal Declaration of Human Rights, which contains the seeds of maintaining value consensus and splitting value consensus. Now, the “seed of division” has sprouted and become the “reality of division”; correspondingly, the “seed of bridging” should begin to sprout and become a “power of bridging”. In the Universal Declaration of Human Rights, can Western liberal human rights concepts and resources become “bridging resources or forces”? Obviously, the answer is No. When the United States became a force for splitting the value consensus, it was destined that Western liberalism would force human rights off track. For this reason, we turn to Chinese philosophical thought, which is rarely mentioned in the historical process of the formation of the Universal Declaration of Human Rights but gradually raised in recent academic discussions. It is easy to ask the question: can Chinese philosophical thought really be a resource for bridging the division of value consensus? With the constant mention of “Asian values” and “Confucian civilization”, especially the continuous recognition of Confucian civilization as a result of cultural relativism and the continuous excavation of its inherent significance, there is sufficient reason to believe that Confucianism or Confucian ethics should bear more responsibility in the split value consensus, despite the fact that there is a conflict between the Chinese concept of human rights and the Western concept of human rights.2 Currently, the research on the relationship between human rights and Confucianism in the Chinese world mainly focuses on the collection of papers such as Confucian Tradition and Human Rights · Democratic Thoughts and Virtue and Rights - Confucianism and Human Rights in the Perspective of Intercul- ture, which represent the two research perspectives of “Confucianism” and “Human Rights”. Although their conclusions are different, they have clearly demonstrated the role and significance of Confucianism or Confucian ethics in the progress of consensus on human rights values. However, these studies lack the analysis of the metaphysical nature of human rights — lack of reason, and the construction of the metaphysical nature of Confucian ethics — spirit. In the analysis of the relationship between human rights and Confucian ethics, we try to explore the hidden factors of the Universal

2. Zhou Qi, “Conf1icts over Human Rights between China and the US”, 27 Human Rights Quarterly 1 (2005): 105-124. 2018] THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE 521 “SPIRITS” OF CONFUCIAN ETHICS

Declaration of Human Rights — Confucian ethics, and make up for the shortcomings of the metaphysical nature of human rights — the lack of “ideal” with the “spirit” of Confucian ethics. II. Analysis Framework and Practice of Universal Declaration of Human Rights and Confucian Ethics More and more scholars are trying to explore the contribution and significance of Confucianism or Confucian ethics to the Universal Declaration of Human Rights, especially focusing on the contribution of Zhang Pengchun, one of the drafters of the Universal Declaration of Human Rights. In the discussion, the facts and logic point to there being a relationship between “Confucianism and human rights.” The results of the discussion on the relationship between Confucianism and human rights can be summarized into four main points. For a clearer analysis, we present it in a matrix graphic (see Figure 1).

Confucianism

positive negative

compatible obstacle postive (1) (2) human rights resources or alternative incompatible negative (3) (4)

Figure 1 Matrix graphic of the relationship between Confucianism and human rights

The first view, as shown in Figure 1 (1), holds that Confucianism and human rights are compatible if both are evaluated positively. On the one hand, Confucianism is no longer regarded as an obstacle to social thoughts, and scholars see more positive factors, such as “benevolence”, “etiquette” and the protection of rights in specific social relations. On the other hand, human rights are no longer criticized by non-Western societies. For example, Professor Li Cunshan believes that Confucianism’s people-oriented thought is compatible with “three generations of human rights”. In his view, in the process of the social transformation of modern China, after the people-oriented thought critically inherited the essence, intellectually accepted new ideas, abandoned its backward concept of hierarchical superiority and inferiority, and recognized that everyone was born free and equal and had inalienable civil and political rights, it not only conforms to the concept of “the first generation of human rights”, but more importantly, it can be consistent with the concept of “the second generation of human rights” and the further development of the concept of human rights.3 American scholar Sumner B. Twiss expressed similar views in the construction of Confucianism and hu-

3. Chen Qizhi and Zhang Shuhua, Confucian Tradition and Human Rights · Democratic Thoughts (Jinan: Qilu Book Society, 2004), 93. 522 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 518 man rights. He believed that “although the three generations of human rights concepts have different emphases, they can all be in harmony with Confucian morality and political thought.”4 The second view, as shown in Figure 1 (2), is that if the evaluation of Confucian- ism is negative and that of human rights is positive, Confucianism will be regarded as an obstacle to the development of human rights. This view is based on the fact that the role of Confucianism is regarded as negative. For example, Chen Duxiu wrote in his famous paper published in 1916 that “the core of Confucianism is feudal code of ethics”. He thought that the foundation of ethics is feudal hierarchy, which was incompatible with equality, democracy and human rights. In this period, the writer Lu Xun criticized the “feudal code of ethics” fiercely, such as “feudal code of ethics is cannibalism” in his Lunatic’s Diary. To this end, it is a luxury to expect the protection of human rights by ethics. In the 20th century, Chinese society overthrew the feudal hierarchy and abolished the cannibalistic feudal code of ethics, aiming at removing the obstacles hindering the development of human rights. In the view of the new youth of the May 4th Movement, China’s first task was to “import the foundation of a Western-style society and state, that is the so-called new belief on equal human rights. For Confucianism, which is incompatible with the new belief in this new society and country, we must have a thorough awareness and courageous determination or it will continue to harm.”5 Therefore, the result of fierce criticism of Confucianism is to pursue “Western-style” of human rights. The third view, as shown in Figure 1 (3), is that if the evaluation of Confucianism is positive and the evaluation of human rights is negative, Confucianism may be an alternative to human rights, or Confucianism may provide resources to improve human rights. The negative evaluation of human rights is mainly manifested in the process of human rights realization, such as the human rights paradox, the harms of human rights and the attack on the value of human rights and so on. Some scholars try to find a new academic resource to alleviate this situation when human rights are under attack. For example, Professor Du Weiming said that industrialized East Asia “under the influence of Confucian culture originating in China,” “has developed into a less antagonistic, less individualistic, and less egoistic modern civilization”.6 Many scholars are in favor of transforming human rights with Confucian resources. The scholars Luo Siwen’s Why should we take rights seriously? The Criticism of Confucianism and An Lezhe’s Rites as Rights: A Confucian Substitution all expound the possibility of Confucianism as a human rights substitute from different perspectives. The fourth view, as shown Figure 1 (4), is that if the evaluation of Confucianism is negative and that of human rights is also negative, Confucianism and human rights are certainly incompatible. In the current academic research, on the one hand, if the evaluation of Confucianism is derogatory, we can only see the negative side of Con-

4. Sumner. B. Twiss, “Confucianism and Human Rights: A Constructive Framework,” Jianghan Forum 6 (2014). 5. Chen Duxiu. “Constitution and Confucianism,” in Duxiu Wencun (Beijing: Foreign Language Publishing House, 2013), 79. 6. LiangTao, Virtue and Rights - Confucianism and Human Rights in the Perspective of Interculture (Beijing: China Social Science Press, 2016), 8. 2018] THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE 523 “SPIRITS” OF CONFUCIAN ETHICS fucianism; on the other hand, if we only see the limitations of human rights in dealing with human rights, the combination of above two situations will surely lead to the conclusion that Confucianism and human rights are incompatible. However, in the views that Confucianism is incompatible with human rights, it is not entirely based on such a relationship. Some scholars believe that Confucianism is an ethical system about benevolence and relationships in harmonious society, in which the rights based on individualism and self-preservation have no place; some scholars believe that Con- fucianism advocates morality and the politics of authoritarianism, which must be rejected and replaced by a political philosophy of human rights and democracy.7 These two viewpoints, in our research framework, are considered as the obstacles of Confu- cianism to human rights. Our view is that obstruction and incompatibility cannot be equated. The matrix outlines the analytical framework of “Confucianism and Human Rights”. At present, the analysis of the relationship between Universal Declaration of Human Rights and Confucian ethics “spirit” points to the third view that Confu- cianism may be an alternative to human rights, or that Confucianism may provide resources for human rights, so as to improve human rights. In the process of formulating the Universal Declaration of Human Rights, because of Zhang Pengchun and his integration of Confucian or Confucian ethical “spirit”, the third view was confirmed by the Confucian practice of the Universal Declaration of Human Rights. First, it directly provides the Confucian concept of “conscience”. Historical records show that the phrase “giving reason” in the provisions of the declaration is Charles Malik’s contribution; the addition of “conscience” is considered to be a Western translation of the most important Confucian ethics and the contribution of the representative of China Zhang Pengchun, who participated in the drafting work. The two important concepts of “reason” and “conscience” in Article 1 of the Universal Declaration of Human Rights represent the West and the East respectively. In terms of the order in the articles, “reason” is put before “conscience”. Obviously, the status between them is still dominated by “reason”, which indicates that the metaphysical nature of human rights advocated by the Universal Declaration of Human Rights is “reason”. Therefore, after the infinite enlargement of “reason”, the weakness of it has also gradually emerged, burying “seeds of division” for the development of human rights in the world. It is also because of “conscience”, especially the Confucian ethical “spirit” it embodies, that it has become a potential “seed of bridging”. Second, it has an important impact on the formation of the provisions of the Uni- versal Declaration of Human Rights. Zhang Pengchun’s contribution to the Universal Declaration of Human Rights was not always made by using Chinese philosophy or Confucian ethics. In the formation of the relevant provisions of the Universal Decla- ration of Human Rights, Zhang Pengchun’s role lies in his wisdom, his understanding of Western culture and his integration of Chinese and Western cultures. For example, Mr. Zhang’s opinions on Articles 2 and 7 of the Universal Declaration of Human Rights concerning anti-discrimination and protection of equal rights, the proposition

7. Chen Zuwei, “Confucianism and Human Rights,” Academic Monthly Magazine 11 (2013). 524 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 518 of Article 3, the revision of the wording of Article 7 on anti-discrimination, and the expression of Article 24 on the “right of leisure”, etc., have been endorsed by other members.8 These opinions are expressed in two aspects: one is Mr. Zhang’s understanding of some problems with his own interpretation. For example, the first three articles are a unity of the three philosophical ideas of the 18th century: fraternity, equality and liberty. The second is to put forward the relevant Confucian ideas for discussion. For example, Mr. Zhang was a strong supporter of the provisions of social and economic rights. He often reminded Westerners that economic and social justice is not a modern concept, but an ancient Confucian concept with a history of 2,500 years. He translated “Datong society” recorded in the Book of Rites and shared it with his Western colleagues.9 Obviously, compared with the Western members who know little about Chinese philosophy or Confucian ethics, Mr. Zhang, as a practitioner of the integration of Chinese and Western cultures, provided a revised resource for the historical progress of human rights in the world and has urged them to constantly revise the direction of the development of human rights in the world. III. Possible Factors for Global Divisions of the Value Consensus of the Universal Declaration of Human Rights The above explanations show that Confucian ethics have been recognized as an important resource of for the value consensus in the Universal Declaration of Human Rights and the process of human rights development in the world. The Confucian practice of the Universal Declaration of Human Rights demonstrates the third view in the matrix graphic of Figure 1. The logical premise is that human rights based on Western liberalism have some defects or deficiencies, and Confucian ethics can just become a resource to remedy these defects or deficiencies. Therefore, it is necessary to further analyze the possible factors of global division existing in the Universal Declaration of Human Rights — the “seeds of division”, which are gradually sprouting. “Although the sprout is not the tree itself, it contains a tree, and contains all the strength of the tree”.10 The “seeds of division” were planted by the Universal Decla- ration of Human Rights and have sprouted constantly in the course of world history, making the division in global value consensus a reality, which are the so-called defects or deficiencies of human rights. At the same time, these defects and deficiencies also bring many problems to the development of human rights in the world. The factors that may enable the forces to successfully split the value consensus of the Universal Declaration of Human Rights are: First, Eleanor Roosevelt, Charles Malik, Zhang Pengchun, John Humphrey Noyes, Rene Cassin are considered to be the founders of the Universal Declaration of Human Rights, among which, Eleanor Roo-

8. Gudmundur Alfredsson and Asborn Eide, The Universal Declaration of Human Rights: Common Standards to Achieve, trans. the Chinese Society for Human Rights Studies (Chengdu: Sichuan People’s Publishing House, 1999). 9. Huang Jianwu, “From the Perspective of Zhang Pengchun’s Contribution to the Formation of the Universal Declaration of Human Rights on Confucian Tradition and Modern Human Rights Construction,” Journal of Sun Yat-sen University (Social Sciences Edition) 6 (2012). 10. Hegel, “Elements of the Philosophy of Right,” trans. Fan Yang and Zhang Qitai (Beijing: Commercial Press, 1961), 1. 2018] THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE 525 “SPIRITS” OF CONFUCIAN ETHICS sevelt supported the American concept of rights, and Charles Malik was a Christian who hoped that the Universal Declaration of Human Rights would be based on his belief in God; Zhang Pengchun tried to add Chinese philosophy to the Universal Dec- laration of Human Rights so that people could accept different civilizations or cultural concepts. For this reason, there were two possible paths for the Universal Declaration of Human Rights: one is that it is the result of the mix of different cultures, which may be more accepted by different systems and cultures. This was later proved when the United Nations General Assembly adopted the Universal Declaration of Human Rights. Second, it is the product of different civilizations. Because of the diversity of civilizations, it may be over-emphasized or underestimated by some civilizations in the progress of world history, and eventually lead to division. This point has gradually been proved by world history. Second, the Universal Declaration of Human Rights was adopted with the fact that no Member State voted against it, but some members abstained. The attitude of these member states towards human rights is uncertain, and the possible problems will appear due to some unfavorable factors, which will lead to division. After the emergence of “Asian Values”, some scholars pointed out that the economic and technological background of the formulation and adoption of the Universal Declaration of Human Rights, that is, the fact that the Western capitalist economy accounts for more than half of the world economy, has changed, and the world needs a new value consensus. This has been serious challenges to the value consensus reached by the Universal Declaration of Human Rights. Further analysis found that the eight countries abstained from voting are socialist countries. This shows that the strength of the capitalist camp was superior to that of the socialist camp at that time. It also shows that there were differences in the human rights concepts between the two camps at that time. With the development of the world economy and politics, especially the stalemate between the East and the West, civil and political rights, economic, social and cultural rights have been divided into two conventions and were drafted separate- ly. The Eisenhower Administration in United States announced that it would no longer participate in the drafting of the conventions and would not sign any binding United Nations conventions. Later, the United States did not join the International Covenant on Economic, Social and Cultural Rights. These actions of the United States had a profound impact on human rights development worldwide. The Universal Declaration of Human Rights is nurturing the “seeds of consensus” and also planting the “seeds of division”, and the “seed of division” is gradually becoming reality and a force that hinders the development of human rights in the world. So what are the factors that lead to the reality? Its root lies in the “reason” weaknesses in the metaphysical nature of human rights and the “clash of civilizations”. From the perspective of Western liberalism, human rights and reason are inseparable. Reason is the metaphysical basis or essence of human rights. The Universal Declaration of Human Rights was born under western liberalism. “Although a popular view holds that human rights are only the product of the special view of human 526 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 518 rights and hypothesis moral reason in the West, the fact that cannot be ignored is that the Universal Declaration of Human Rights was formally adopted by representatives of different countries and cultures in 1948.”11 This view has been refuted by many scholars, Douzina said: “Today, most of the contemporary states have abandoned the previous opinions on human rights. The ontological presupposition of human rights, the principle of freedom and equality for all and its political inference, political power must comply with the requirements of reason and law has become their main ideology.” It seems metaphysical nature of human rights is clearly expressed — “reason” has been universally recognized. However, Douzinais not very optimistic about the consensus and the “victory” of human rights in the world. He believes that “the victory of human rights is more or less a paradox” and that human rights are “the only paradox left” and that the emergence of human rights comes from the unsolved nature of the mystery.12 If this is the case, “human rights can only provide paradoxes”.13 So, what is its root? Obviously, this situation can be attributed to the weakness of “reason”. “Reason” can be divided into instrumental reason and practical reason. Instru- mental reason is to confirm the usefulness of tools (means) by practice, so as to pursue the greatest effectiveness and serve to achieve some kind of human gains. Instrumental reason achieves the goals most effectively by accurate calculation. It is a kind of value that takes tool worship and technology as the survival goal. So “instrumental reason” is also called “functional reason” or “efficiency reason”. Practical reason is that people use reason to decide how to act in a particular situation. There are profound contradictions in reason itself. On the issue of human rights, it has been confused by these two “rationalities”. There is a tension between the validity of instrumental reason and the legitimacy of practical reason, which leads to the paradox of rights or human rights, that is, “the more rights I have, the less protection I get for harm; the more rights I have, the greater my desire for even more rights, but the less happiness they give me. The paradox of ideological triumph of human rights coin- cides with the perception of experience, that is, our times have witnessed the greatest harm to human rights.14 Obviously, in the western mainstream ideology, human rights are individual rights. According to Hegel, ethics and spirit are identical. He holds that there are always only two kinds of viewpoints in ethics: one is to start from entity, the other is to discuss atomically, that is, to gradually improve on the basis of a single person. The latter view is not spiritual.15 In Hegel’s view, families, nations and states are ethical entities and realistic spirits. According to this logic, exploring human rights from an individual perspective will result in the loss of “spirit” and the only thing left behind is “paradox”. Similarly, how can we transcend the “paradox of human rights” in terms of the

11. Sumner. B. Twiss, “Confucianism and Human Rights: A Constructive Framework,” Jianghan Forum 6 (2014). 12. Costas Douzinas, The End of Human Rights, trans. Guo Chunfa (Nanjing: Jiangsu People’s Publishing House, 2002), 19. 13. Costas Douzinas, Human Rights and Empire-the Political Philosophy of Cosmopolitanism, trans. Xin hengfu, Phoenix Publishing Media Group (Nanjing: Jiangsu People’s Publishing House, 2010), 9. 14. Costas Douzinas, The End of Human Rights, 57. 15. Hegel, Elements of the Philosophy of Right, 173. 2018] THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE 527 “SPIRITS” OF CONFUCIAN ETHICS metaphysical nature of human rights? The answer here is very obvious, that is, to take the spirit as the metaphysical possibility of human rights. So, what kind of spirit can be the basis? If we go back to the Universal Declaration of Human Rights, its hidden Confucian ethical spirit is exactly what we need to pursue and what we need to advocate. The world history of human rights shows the possibility of interpretation with this theory, and whether it can become a reality will also be depend on many factors. The world has been flooded with too many conflicts. The greatest conflict, which is also a global conflict, has far-reaching impact on what Huntington called “the clash of civilizations”, which is also the “seed of division”. “The clash of civilizations” is the end of history.16 The global debate over academic themes that have arisen after the “end” is also a global fact. After the end of the Cold War, Huntington believed that “cultural and cultural identity (which is civilized identity in the broadest sense) formed a pattern of integration, division and conflict model in the Post-Cold War world”.17 This is the so-called “the clash of civilizations”. Huntington expressed different responses to Westernization and Modernization by means of graphic method. He believed that “Westernization and Modernization were closely linked originally. Non-Western societies absorbed quite a lot of factors from Western culture and made slow progress towards modernization. However, as the pace of modernization accelerates, the rate of Westernization decreases and the local culture revives. Therefore, further modernization has changed the cultural balance between Western and non-Western societies, and strengthened the belief in local culture.18 On the issue of human rights, the rise of cultural relativism represented by “Asian values” demonstrates this view. “With the weakening of Western power, the ability of the West to impose its concepts of human rights, liberalism and democracy on other civilizations has diminished, and the attractiveness of those values to other civilizations has also diminished.”19 In Huntington’s exposition, he was very keen to capture the changes to the world order in the West after the Cold War. As a result, “almost all non-West- ern civilizations have resisted Western pressures, including Hinduism, Orthodox Church and African countries, and to some extent even Latin American countries”. Moreover, “Islam and Asia are the strongest resisters to Western democratization. This resistance is rooted in a broader movement to expand their own cultures, which manifested in the Islamic Renaissance Movement and Asian self-affirmation.” This situation makes US self-confidence — “it will not take long for Western human rights concepts and political democracy to prevail globally” to be seriously challenged. Ob- viously, the Western Empire of Human Rights has gradually declined. “Every civilization regards itself as the center of the world and writes its own history as the main dramatic scene of human history.” So the clash of civilizations is inevitable.

16. In the summer of 1989, Fukuyama published the article The End of History in the magazine National Interest. The article holds that the liberal democracy system practiced by western countries may be the “end of human ideology” and “the last form of human domination”, thus constituting the “end of history”. 17. Samuel Phillips Huntington. The Clash of Civilizations and the Remaking of World Order (Revised Edition), trans. Zhou Qi (Beijing: Xinhua Publishing House, 2010), 4. 18. Ibid., 54. 19. Ibid., 73. 528 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 518

The logic of “the clash of civilizations” lies in the premise of diversity and multi-centeredness of civilizations. However, the confrontation and division that ensued with the conflicts put forward with the question: Is there a future for human rights? If the consensus of the Universal Declaration of Human Rights is entirely Western, the resistance around the world will be more intense than ever. In fact, in the process of formation of consensus and development, the Universal Declaration of Hu- man Rights was created by the clash and exchange of different civilizations, systems and cultures. It not only is “the result of consensus”, but also plants “the seed of division”, which contains “the seed of bridging” — Confucian ethics. This kind of “seed” played an important role in the formation of the Universal Declaration of Human Rights, but at that time it was only as a potential or insignificant resource, submerged by two powerful forces. At this time, it is precisely this potential “seed” that gradually sprouted and become a force. IV. The Orientation of Maintaining the Value Consensus of the Uni- versal Declaration of Human Rights: Defending the “Spirit” of Con- fucian Ethics There is no doubt that the Universal Declaration of Human Rights reveals a global value consensus and that “human rights finally won in 1989”20 and it has become the “universal medium of the new world order”. But this is only the weapon of the “aggressive empire”. The problem that cannot be ignored is that “the victory of the United States over other communist adversaries has made human rights, the Western ideology, the creed of the new world order”.21 This sudden change took place when the United States withdrew from the Human Rights Council of the United Nations and its ambition to split the power of the value consensus of the Universal Declaration of Human Rights was unveiled. What should the world do at this time? The force of maintaining the value consensus of the Universal Declaration of Human Rights is also trying to find a kind of resources that can bridge the division and all point to the Con- fucian ethical “spirit” in the Universal Declaration of Human Rights. China’s economy, science and technology, and international political influence are continuously increasing. In 2010, China became the second-largest economy in the world. In 2012, General Secretary Xi Jinping put forward and explained the “Chi- nese Dream of Great Rejuvenation of the Chinese Nation”; in 2014, General Secretary Xi Jinping proposed to “enhance cultural self-confidence and value self-confidence” in the 13th collective study of the Central Political Bureau, and held that “cultural self-confidence is the most lasting and deepest strength”; in 2017, the State put forward the Guiding Idea of the Inheritance and Development of Chinese Excellent Tra- ditional Culture. From this we can see that China constantly affirms itself with cultural self-confidence and is actively seeking to integrate into the world order. China should make a positive contribution to the development of human rights in the world, that is, to hold the third view in the matrix figure of “Confucianism and Human Rights”. The history of the formation of the Universal Declaration of Human Rights shows that the

20. Costas Douzinas, The End of Human Rights, 35. 21. Ibid. 2018] THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE 529 “SPIRITS” OF CONFUCIAN ETHICS

Universal Declaration of Human Rights not only planted “the seeds of division”, but also provided resources that can bridge the division. The problem now is that the di- visive forces are strong, and the bridging resources seem to be somewhat inadequate. If we hope that the Universal Declaration of Human Rights will continue to be a universal value consensus, we should, in the future development of the Universal Decla- ration of Human Rights safeguard the “spirit” of Confucian ethics. To achieve this, we will need to go through the following two steps. First, the dialectical movement from “reason” to “spirit”. Fan Hao, a scholar in the field of moral philosophy, has criticized the long-standing view that ethics and morality are “practical reason”, which he thinks is a misunderstanding of the nature of ethics and morality.22 He has put forward the viewpoint that the metaphysical nature of morality should be interpreted as “spirit”, and considers that “spirit” has more theoretical reason than “practical reason” compared with morality and ethics; and that “spirit” is more in line with the tradition of Chinese moral philosophy and a concept with more national characteristics than “practical reason”.23 We also agree that the metaphysical nature of ethics and morality should be interpreted as spirit. Undoubt- edly, if we take this as the theoretical basis, it will be more reasonable to interpret the metaphysical nature of Confucian ethics with spirit. When discussing the metaphysical nature of Confucian ethical law, it interprets Confucian ethical law with spirit.24 There- fore, the metaphysical nature of Confucian ethics and Confucian ethical law should be interpreted as “spirit”. The human rights advocated in the Universal Declaration of Human Rights have been emphasized indefinitely due to the nature of “reason” in the progress of world history, and the consequent weaknesses of “reason” have been constantly presented, which ultimately leads to the conclusion that “human rights can only be provided by paradoxes”. When we interpret the metaphysical nature of human rights with the Universal Declaration of Human Rights, if we can realize the dialectical movement from “reason” to “spirit”, we can solve many problems in the Universal Declaration of Human Rights. In the Universal Declaration of Human Rights, there exists the possibility of a dialectical movement from “reason” to “spirit”, which is the Confucian ethics embodied in “conscience” in Article 1 of the Universal Declaration of Human Rights. Now in the Universal Declaration of Human Rights, “reason” and “conscience” are put together, and one after another, provides a metaphysical basis for the dialectical movement in the history of international human rights. If the metaphysical nature of human rights is interpreted as “spirit”, the Uni- versal Declaration of Human Rights can be interpreted reasonably. First, we should rationally explain the development of human rights. At present, the development of human rights has gone far beyond the framework of individual rights. Economic, social and cultural rights and the right to development are increasingly accepted by most countries, although Western countries ignore and resist the collective rights advocated by non-Western countries. The root of this phenomenon is that we have always inter-

22. Fan Hao. China Ethics Report (Beijing: China Social Science Press, 2010), 41. 23. Fan Hao, The Spiritual Philosophical Basis of Moral Metaphysics (Beijing: China Social Science Press, 2006), 12. 24. Huang Aijiao, “Metaphysical Nature of Confucian Ethics: Reason or Spirit,” Ningxia Social Sciences 1 (2018). 530 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 518 preted the metaphysical nature of human rights as “reason” rather than “spirit”. When “reason” transcends “spirit”, the most serious consequence is the confusion of theory, especially the ambiguity of the concept of human rights. Spirit is always holistic, and reason is always individual. This can explain the history of the development of human rights in the world, which includes both individual rights and collective rights. Oth- erwise, if we simply emphasize reason, the inevitable result is to exclude collective rights and excessively advocate individual rights. Second is putting more emphasis on the realization of human rights. The weaknesses of reason result from, “human rights can only be provided by paradox” or human rights are only “Utopia”. In the Confucian ethical tradition, more emphasis is placed on the realization of their rights in specific ethical relations. For example, one of the reasons why scholars advocate the importance of the theory and practice of Confucian human rights methods is that the real relationship between our daily life and the moral community is the basis of rights.25 Therefore, in the Confucian ethical tradition, and from the perspective of the spirit, it pays attention to the realization of rights, not only to people’s rights, but also to whether such rights bring happiness, thus eliminating the paradox of human rights. Second, from value consensus to joint action. The current problem with the Uni- versal Declaration of Human Rights is that the fragmentation of action leads to con- scious challenges. In the era of rationalism, there is a lack of spiritual connection between individuals and societies. At present, no one seems to doubt that the Universal Declaration of Human Rights has reached a consensus on human rights worldwide. From the perspective of spirit, in order to bridge the global division of the consensus on the Universal Declaration of Human Rights, as a value consensus, the consensus on human rights should construct “spirit” in the Universal Declaration of Human Rights and further enrich the “spirit” in the Universal Declaration of Human Rights. At present, two issues are critical: one is the return of the universality of human rights proclaimed in the Universal Declaration of Human Rights, and the other is the joint action to defend the Universal Declaration of Human Rights worldwide. At present, the most important difference of the human rights concepts in the world is no longer the difference of understanding and idea, but the difference between action and reality. The key to bridge the global division and human rights conflict of the Universal Dec- laration of Human Rights is no longer to form a value consensus, but to act together. The key is not to see what the country is saying, but more importantly to see what the country is doing, whether it is promoting human rights or leading to human rights violations. By this measure, Huntington’s “the clash of civilizations” will also be resolved. Western countries are also criticized when they use human rights as a tool to infringe the human rights of other countries. Such criticism is strong. Only when individuals, societies, countries and the international community are committed to human rights actions, rather than merely focusing on the value consensus, can human rights get rid of the “paradox” and develop the cause of human rights.

25. May Sim, “A Confucian Approach to Human Rights”, 21 History of Philosophy Quarterly 4 (2004): 337- 356. 2018] THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE 531 “SPIRITS” OF CONFUCIAN ETHICS

V. Conclusion The Universal Declaration of Human Rights is closely related to the Confucian ethical spirit. The Confucian ethical spirit is the potential “seed of bridging” and gradually “sprouting” becoming a force to safeguard the value consensus of the Universal Declaration of Human Rights against the threat of global division. Even so, the metaphysical basis of human rights in the Universal Declaration of Human Rights is still “reason”, and the role and significance of Confucian ethics “spirit” in the Universal Declaration of Human Rights are complementary. It is precisely because of this kind of complement that the Universal Declaration of Human Rights will be more complete in world history and become a worldwide and sustainable value consensus. (Translated by LI Man) THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

The Right to Work of Chinese Ethnic Minorities: Replies to Concerns and Suggestions of the UN Human Rights Treaty Bodies

LI Lei*

Abstract: The UN Human Rights Treaty Bodies have repeatedly raised concerns about the Chinese government’s fulfillment of its obligations to safeguard the right to work of ethnic minorities, including the insufficiency of materials, the asymmetry of employment conditions between migrating Han and other ethnic groups, as well as so-called pervasive discrimination against non-Han ethnic workers. The UN Human Rights Treaty Bodies raised these concerns based on various facts and the rationality of their suggestions differ. China has replied accordingly. China should continue to reply based on the facts, and it should accept those suggestions that are reasonable and on facts. When addressing suggestions that are not based on facts, we should identify the nature of the problems and eliminate misunderstanding by clarifying the facts and encouraging friendly dialogue. Keywords: human rights treaty bodies  concluding observations  ethnic minority  rights to work

I. Introduction: the Raised Questions The right to work is related to human dignity and development and it is a very important human right in a market economy. The relevant matters are subject to the adjustment of UN Convention of human rights such as the International Convention of Eliminating All Kinds of Racial Discrimination and the International Covenant on Economic, Social and Cultural Rights. After acceding to these conventions, China has submitted periodic reports to the corresponding human rights treaty bodies (that is the Committee on the Elimination of Racial Discrimination and the Committee on Economic, Social and Cultural Rights, etc.) in accordance with the provisions of the Convention to accept the review. With the attitude of openness and seriousness, China has responded positively to the concluding observations made by these agencies on China’s periodic reports.1 The United Nations human rights treaty bodies are expert bodies elected in accor-

* LI Lei ( 李累 ), Professor at the Sichuan University Law School. 1. For the International Covenant on Economic, Social and Cultural Rights, the States parties submit their first implementation report within two years of the entry into force of the Convention, which is submitted to the UN Committee on Economic, Social and Cultural Rights for consideration by the Secretary-General of the United Nations and thereafter every five years. For the International Convention of Eliminating All Kinds of Racial Discrimination, the States Parties report to the Secretary-General of the（ Continued on Next Page） 2018] THE RIGHT TO WORK OF CHINESE ETHNIC MINORITIES: 533 REPLIES TO CONCERNS AND SUGGESTIONS OF THE UN HUMAN RIGHTS TREATY BODIES dance with the provisions of human rights conventions. After considering the periodic reports submitted by the State party, they generally raise negative concerns and corresponding recommendations in addition to affirming the efforts and achievements of the State party. How the State party treats these concerns and recommendations is always a concern of these institutions and other aspects. In considering the State party’s next periodic report, these agencies will review the State party’s response to the previous concluding observations, at the same time, affirm positive measures, continue to express concern about unanswered and unresolved issues, and urge improvements. In addition, the media, non-governmental organizations, etc. often use the negative concerns raised by human rights treaty bodies as an important basis for evaluating the human rights situation in the State party. But some of the concerns may be caused by false reports and stigmatizing comments made by the media and non-governmental organizations. In fact, the rules of procedure of the UN human rights treaty bodies allow non-governmental organizations to submit written and verbal information.2 The concluding observations use vague words such as “reported” and “sources of information outside China”, which acknowledge that some of the information comes from sources such as the media and non-governmental organizations.3 In this way, the concluding observations of human rights treaty bodies may differ from China’s perception of its efforts, and may sometimes even be the opposite. China certainly must take this fact seriously. The actual situation in China is that the State has done everything possible to promote the equal enjoyment of the right to work by ethnic minorities. After the initial results of reform and opening-up, China has actively promoted urbanization and the development of the western region. In the meantime, China has adopted measures to promote the employment of ethnic minority workers living in the western region in the non-agricultural sector, but these measures are now still restricted by the local factors such as the natural environment and human capital levels. According to the data of the sixth national census, only the ethnic minorities such as the Korean nationality have an average higher education level than the Han, while the education level of other ethnic groups are generally lower. As such, many other ethnic minorities face challenges in obtaining employment opportunities and upgrading their professional level.4 This is an important issue in the implementation of the right to work for people of non-Han ethnic groups. It is also the focus of international media and non-governmental organizations’ comments on China’s human rights, which has attracted the attention of the UN human rights treaty bodies.

（ Continued）United Nations on the implementation of the legislative, judicial, administrative or other measures to implement the provisions of the Convention, one year after the entry into force of the Convention for it, and every two years thereafter and upon request by the Committee. For the consideration of the Committee, the Committee may request the State party to submit further information. 2. See article 69, paragraph 1, of the Rules of Procedure of the Committee on Economic, Social and Cultural Rights. 3. E/C.12 /1/Add.107, paragraph 38; E/C.12/CHN/C0/2, paragraph 14. 4. Ma Rong, “A Preliminary Analysis of the 2010 Population Census Data on the Changes in Occupational Structure and Cross-Age of Rural Minority Employment in China,” Journal of South-Central University for Nationalities (Humanities and Social Sciences) 6 (2013). 534 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 532

In recent deliberations, after reviewing China’s relevant periodic reports, the UN human rights treaty bodies have not only affirmed the Chinese government’s measures to develop the economy and promote employment in ethnic minority areas, but also raised negative concerns and opinions. The latter mainly involves three questions: (1) Data adequacy issues for periodic reports. The treaty bodies believe that China’s report does not provide sufficient information, especially for ethnic minority groups, so that it is impossible to accurately determine the status of ethnic minority rights.5 (2) The problem of the asymmetry of employment status of ethnic minority immigrants and Han immigrants. The human rights treaty bodies believe that ethnic minorities are indirectly discriminated against in the employment field because of the household registration system, and stress that there are “reports” that “the influx of Han people into ethnic minority areas” is one of the reasons for the high unemployment rate among ethnic groups such as Tibetans, Uygurs and Mongolians.6 (3) The so-called universal and persistent employment discrimination problem. The concluding observations state that Chinese ethnic minorities “have been widely discriminated against” in terms of employment and urge China to take measures to combat it.7 Among the three concerns, the first item has a certain factual basis, so that China should continue to improve its periodic reports. The second item is not completely false, but the way in which the human rights treaty bodies raise this negative concern echoes the false rumors that the Chinese government seeks to change the demographic structure of ethnic minority areas, which creates a bad impression and has the wrong implications. China should clarify the nature of the problems, explain the methods being employed to resolve them and try to eliminate misunderstandings. The third item does not distinguish the nature of discrimination. It does not distinguish whether the relevant discrimination is a phenomenon of social self-discovery or because of the role of public power. It also exaggerates the existence scope and duration of discrimination. China should treat these comments with an open and serious attitude, make differentiated responses according to different situations. In this way, it can initiate constructive dialogue. II. The Appropriate Response to the First Type of Concerns: Accept Reasonable Opinions and Take Corresponding Measures The UN human rights treaty bodies emphasize the issue of data adequacy based on facts. Although China actively implements international human rights conventions and fulfills its reporting obligations with the utmost goodwill, China is the largest developing country in the world. Its available resources such as human resources, academic resources and financial resources are limited. China can only gradually improve its information collection and thus the content of its periodic reports, and so strive to meet the information requirements of the human rights treaty bodies. Since 2000, the UN human rights treaty bodies have raised this issue at least three

5. E/C.12/1/Add. 107, paragraph 38 and 67; CERD/C/CHN/CO/10-13, point 9, point 18; E/C.12/CHN/CO/ 2, point 17. 6. CERD/C/CHN/CO/10-13, point 13, point 14; E/C.1 2/CHN/CO/2, point 17. 7. E/C. 12/CHN/CO/2, point 14. 2018] THE RIGHT TO WORK OF CHINESE ETHNIC MINORITIES: 535 REPLIES TO CONCERNS AND SUGGESTIONS OF THE UN HUMAN RIGHTS TREATY BODIES times, one of which refers to economic, social and cultural rights and two to the right to work. (1) After considering the first periodic report submitted by China on time, the Committee on Economic, Social and Cultural Rights in 2005 said it was regrettable that China “failed to provide sufficient information on the enjoyment of the economic, social and cultural rights provided by the Convention in the minority areas.”8 It requested “the State party to provide detailed information in its next periodic report, including comparable disaggregated statistics. Progress made and obstacles encountered in the implementation of the provisions of the Convention for minority areas, in particular the Xinjiang Uygur autonomous region and the Tibet autonomous region are assessed.”9 (2) After combining and reviewing the China’s 10th to 13th periodic reports in 2009, the Committee on the Elimination of Racial Discrimination emphasized that China did not provide disaggregated statistics on the socio-economic status of ethnic minorities. It requested that “the State party includes in its next periodic report updated and detailed statistical data on the socio-economic situation of the population, disaggregated by ethnic group and nationalities;10 And it requested the State party to provide more detailed information in its next periodic report to explain the representa- tion of ethnic minorities in public life and their status as higher-level positions.”11 (3) After considering the second periodic report of China, the Committee on Economic, Social and Cultural Rights emphasized “currently unemployment statistics that are not classified by ethnicity, which limits an assessment of the right to work of the enjoyment of ethnic minorities in 2014.”12 “The Committee, in accordance with previous recommendations(E/C.12/1/ Add.107, para. 67), urges the State party to strengthen the unemployment data collection system in order to better assess the situation of minorities.”13 The above comments have a certain factual basis. The Chinese government sub- mits periodic reports in accordance with the provisions of the treaty, which requires departments to provide the necessary information, but China’s relevant mechanisms are still insufficient. For example, (1) The China Statistical Yearbook only has employment information in urban and rural areas and sub-regions, and there is no employment information for ethnic groups. The China National Statistical Yearbook contains employment information in sub-regions of ethnic autonomous areas, and there is no employment information of ethnic groups. (2) The Tibet Statistical Yearbook only releases the number of Tibetan workers in state-owned economic units before 2003. The Sichuan and Qinghai Statistical Yearbooks publishes employment data for cities and states, and does not release employment data for ethnic groups. In the Qinghai Statistical Yearbook, the main economic indicators of ethnic autonomous areas only have data on Tibetan areas in some years, and it is impossible to extract Tibetan employment data. The Gannan Statistical Yearbook also lacks employment information

8. E/C. 12/1/Add. 107, paragraph 38. 9. E/C. 12/1/Add. 107, paragraph 67. 10. CERD/C/CHN/CO/10-13, point 9. 11. CERD/C/CHN/CO/10-13, point 18. 12. E/C. 12/CHN/CO/2, point 17, paragraph 1. 13. E/C. 12/CHN/CO/2, point 17, paragraph 2. 536 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 532 for ethnic groups. (3) The census conducted every ten years adopts the indicators of ethnic groups. According to the national statistics, “the person in charge of the party and government organizations”, “the professional technicians”, “the personnel”, “the business and service personnel”, “agricultural, forestry, animal husbandry and fishery workers”, “the production and transportation workers” and the number of “others”, but the length of the census is long, which is not conducive to timely judgment of the employment situation of ethnic minorities. (4) The Decree of Government Information Openness clearly requires the people’s governments at or above the county level and their work departments to make government policies that promote employment (and poverty alleviation, education, medical care) and other aspects of policies, measures and their implementation as key public information.14 However, the existing government work reports, statistical yearbooks, local chronicles and other information only involve a small number of indicators, and the information is not sufficient. (5) The Law on Regional Ethnic Autonomy stipulates that enterprises and institutions in ethnic autonomous areas shall preferentially recruit minority nationals.15 The Employment Promotion Law stipulates that employers shall properly take care of minority laborers when recruiting personnel.16 Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council requires that the exploitation of natural resources in ethnic autonomous areas should support local promotion of employment;17 the governments at all levels of national autonomous areas guide and organize the masses to go out for business, and the relevant local governments are to protect the legitimate rights and interests of migrants and ethnic minorities through business people;18 the people’s government at higher levels and their work departments, the people’s governments of ethnic autonomous areas and their work departments shall be equipped with leaders of ethnic minorities in accordance with regulations, shall be selected as ethnic minorities in accordance with open selection and competition for the selection of leaders, and shall reserve places and position for ethnic minorities.19 The state has intensified training on cadres of ethnic

14. See Article 10, paragraph 9 of the Government Information Disclosure Ordinance. 15. Article 23 of the Law of the People’s Republic of China on Regional Ethnic Autonomy stipulates: “When enterprises and institutions in ethnic autonomous areas recruit personnel in accordance with state regulations, they shall give priority to the recruitment of ethnic minority personnel and may recruit from minority populations in rural and pastoral areas.” 16. Article 28 of the Employment Promotion Law stipulates: “The employer shall employ appropriate personnel to give appropriate care to minority laborers according to law.” 17. Article 8 of the Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council stipulates: “Those who exploit oil, natural gas and other resources in national autonomous areas should give local support in promoting local economic development, developing corresponding service industries, and promoting employment.” 18. Article 18, paragraph 2, of the Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council stipulates: “The people’s governments at all levels of the national autonomous areas shall guide and organize the local masses to go out and go through commercial workers in an orderly manner. The relevant local people’s governments shall effectively protect the foreigners. The local people’s governments concerned shall conscientiously protect the legitimate rights and interests of the minority people who engage in foreign business and work.” 19. Article 28, paragraph 1, of the Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council stipulates: “The leaders of higher-level people’s governments and their work departments shall reasonably equip minority cadres;（ Continued on Next Page） 2018] THE RIGHT TO WORK OF CHINESE ETHNIC MINORITIES: 537 REPLIES TO CONCERNS AND SUGGESTIONS OF THE UN HUMAN RIGHTS TREATY BODIES and national autonomous areas, and established and improved the exchange system between cadres of ethnic autonomous areas and central state organs and economically developed regions.20 Currently, these data are not universally included in the scope of government information disclosure. The department within the Chinese government responsible for preparing periodic reports in accordance with the provisions of human rights treaties clearly cannot go beyond the existing mechanisms and organize relevant departments to provide information that meets the higher requirements of the human rights treaty bodies. China should accept the reasonable opinions of the human rights treaty bodies and, within the scope of financial resources, human resources, and academic accumulation permits, do their utmost to approach the information disclosure methods expected by human rights treaty bodies. The key is to use existing resources to organize relevant departments and local governments to formulate feasible plans and collect necessary information as soon as possible. III. The Appropriate Response to the Second Type of Concerns: Identify the Nature of the Problem and Explain the Solution The UN human rights treaty bodies propose that the migration of Han nationality to ethnic minority areas affects the employment of local ethnic minorities and causes the difficult employment of ethnic minority immigrants in different places, which has a certain factual basis, but the human rights treaty bodies have made debatable judg- ments on the nature of the problem. The decisive force that led to this problem is the market’s spontaneous resource allocation mechanism, not the country’s population and employment policies. In fact, the national policy is to do everything possible to promote minority workers to do appropriate work in their local and other areas. In addition to fully explain the internal and external issues, the Chinese side should also regularly investigate and deal with specific problems in implementing policies and laws to prevent the continuation and expansion of misunderstandings. According to the concluding observations of the Committee on the Elimination of Racial Discrimination in 2009, “it is reported that the system of rewarding work and settlement in ethnic minority autonomous areas may lead to substantial changes in the demographic composition”, suggesting that “any policy or incentive measures on the population composition of ethnic minority autonomous regions for major changes should be reviewed.”21 The observations also pointed out that the household registration system indirectly led to discrimination against domestic immigrants in employ-

（ Continued）the people’s governments of ethnic autonomous areas and their work departments. The leading cadres of the ethnic and other ethnic groups that implement regional autonomy should be equipped according to law. When publicly selecting and competing for the posts of leading cadres, they can draw corresponding quotas and positions and direct the selection of minority cadres.” 20. Article 29, paragraph 2, of the Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council stipulates: “The State adopts active measures to increase training for cadres of ethnic and national autonomous areas, and expands cadre training institutions and institutions of higher learning. The school trains the scale of cadres and talents for ethnic autonomous areas, and establishes and improves the exchange system between cadres of ethnic autonomous areas and central state organs and economically developed regions.” 21. CERD/C/CHN/CO/10-13, point 13. 538 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 532 ment, affected ethnic minority personnel.22 It recommended that China implement relevant policies and “reform the household registration system to ensure that domestic immigrants, especially ethnic minority personnel, can enjoy the same job of the urban residents”. The concluding observations of the Committee on Economic, Social and Cultural Rights in 2014, stated, “It is reported that the unemployment rate of ethnic minority personnel, especially Tibetans, Uighurs and Mongolians, is high, partly because of the influx of Han Chinese into minority areas.”23 “It is recommended that the State party pay special attention to ethnic minorities, strengthen existing programs and adopt effective strategies to reduce unemployment rates in the most unemployed areas.”24 Combining these expressions will form an image that the immigrants flowing outward from minority areas and immigrants entering ethnic minority areas are in an asymmetrical state of employment. On the one hand, immigrants from ethnic minority areas, especially those who go out to work through commercial workers, cannot easily integrate into the inflowing land because of the household registration system; on the other hand, immigrants have obtained many jobs in private and individual economic units, State-owned economic units, and other economic units in minority areas. Minority immigrants are indirectly affected by employment in the employment system because of the household registration system. This is a manifestation of the lagging institutional changes in the transition from a planned economy to a market economy. This problem is being gradually resolved through reform. The State first canceled registration projects specifically targeting migrant workers, restrictions on occupational work types, and charges that did not meet the requirements of the State Council. It was forbidden to discriminate against migrant workers in terms of technical qualifications and health conditions, and prohibited the inflow of land to distribute the expenses of public security management from migrant workers and their enterprises.25 Then it was forbidden to retreat and exclude migrant workers on the grounds of solving the employment of urban labor;26 finally, it was decided to gradually realize the basic public services of the towns and the migrant workers who lived in the towns and their accompanying families.27 Not only that, the Chinese government has also adopted a policy to encourage ethnic minorities to go out for business. The Several Provisions on the Implementation of the Law of the People’s Republic of China on Re- gional Ethnic Autonomy by the State Council proposed that all levels of government in ethnic autonomous areas guide and organize the masses to go out to work through commercial workers and relevant local governments to effectively protect the legitimate rights and interests of foreign trade and economic minorities.28

22. CERD/C/CHN/CO/10-13, point 14. 23. E/C. 12/CHN/CO/2, point 17, para 1. 24. E/C. 12/CHN/CO/2, point 17, para 2 25. See the Notice of the General Office of the State Council on Doing a Good Job in Employment Management and Service for Farmers Entering Cities (Guo Ban Fa [2003] No. 1). 26. See the State Council’s Several Opinions on Solving the Problem of Migrant Workers (Guo Fa [2006] No. 5). 27. See the State Council’s Opinions on Further Improving the Work for Migrant Workers (Guo Fa [2014] No. 40). 28. See Article 18, paragraph 2, of the Several Provisions on the Implementation of the Law of the People’s Re- public of China on Regional Ethnic Autonomy by the State Council. 2018] THE RIGHT TO WORK OF CHINESE ETHNIC MINORITIES: 539 REPLIES TO CONCERNS AND SUGGESTIONS OF THE UN HUMAN RIGHTS TREATY BODIES Immigrants get more jobs in minority areas, which is the result of spontaneous labor allocation in the market. Some Tibetan scholars pointed out that “many of those who choose to hire immigrants are Tibetan companies and employers who have obtained land, government contracts, and bank loans by preferential policies.”29 Ob- servers should not completely oppose laborers from different geographical sources and different ethnic origins, and in fact, those labors are so complementary that they participate in the development of minority areas and benefit from it. The Tibetan en- trepreneur who runs the S Hotel in the Chengguan District of Lhasa told the author that he grew up with the Han Chinese predecessors as a tour guide in the 1990s. At the hotel, employees from different ethnic groups and different regions showed a complementary symbiotic relationship. At the end of 2015, the hotel had 34 Tibetan employees and 20 Han employees, accounting for 63% and 37% respectively. The household registration of seven of the Tibetan employees was the S hotel, and the remaining 27 are migrant workers from in and outside the district, mostly room and restaurant wait- ers. The Han employees are immigrants moving across provinces, mostly in the sales department, finance department, engineering department, and kitchen. Employees of different nationalities are located in different positions, but they are all beneficiaries of the development of the local hotel industry. Of course, in the future, efforts should be made to improve the human capital level of minority workers and help them secure higher-level positions. The Chinese government attaches great importance to the challenges brought by the spontaneous market mechanism to minority laborers, and should make a more detailed explanation to the UN human rights treaty bodies to reduce and eliminate misunderstandings. For example, the Employment Promotion Law requires employers to properly care for minority job seekers.30 The Law on Regional Ethnic Autonomy stipulates that the organs of self-government shall cultivate a large number of cadres, professional talents and skilled workers from local ethnic groups. The organs of self-government shall employ the personnel of the ethnic groups and other ethnic minorities that implement regional autonomy in accordance with the principle of proper care;31 enterprises and institutions shall preferentially recruit a small number of minority laborers from rural and pastoral areas;32 enterprises and institutions affiliated

29. Ren Zhen-luo-se, The Dalai Lama in the Eyes of a Tibetan Scholar, in Dialogue with Tibet: Myths and Reali- ties (Beijing: Law Press, 2010), 164-165. 30. Article 14 of the Labor Law stipulates: “The employment of persons with disabilities, ethnic minorities, and military personnel who have retired from service shall be prescribed by laws and regulations.” Article 28, paragraph 2 of the Employment Promotion Law states: “Applicants should be given appropriate care to minority workers according to law.” 31. Article 22, paragraph 1 and 2 of the Law on Regional Ethnic Autonomy stipulates: “The organs of self-government of national autonomous areas shall, according to the needs of socialist construction, adopt various measures to cultivate a large number of cadres at various levels and various science and technology from the local ethnic groups. Professionals and skilled workers in business management give full play to their role, and pay attention to cultivating cadres at all levels and various professional and technical personnel among ethnic minority women. When the self-governing organs of national autonomous areas employ staff, they implement regional autonomy. Ethnic and other ethnic minorities should be given appropriate care.” 32. Article 23 of the Law on Regional Ethnic Autonomy stipulates: “When enterprises and institutions in ethnic autonomous areas recruit personnel in accordance with state regulations, priority is given to recruiting ethnic minority personnel and can be recruited from rural and pastoral minority populations.” 540 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 532 with higher-level state organs and doing business in ethnic autonomous areas should preferentially recruit local minority laborers;33 higher-level State organs can help ethnic autonomous areas cultivate a large number of local minority Ethnic cadres, professional talents, and skilled workers.34 The Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council require the people’s government at higher levels, its work departments, the people’s governments of ethnic autonomous areas and their work departments to equip the leaders of ethnic minorities in accordance with regulations, and select leaders according to open selection and competition to reserve quotas and positions for ethnic minorities;35 the State will increase the training of the cadres of ethnic autonomous areas, and establish and improve the exchange system between cadres of ethnic autonomous areas and central State organs and economically developed regions.36 IV. The Appropriate Response to the Third Type of Concerns: Clari- fy the Truth and Promote Goodwill Dialogue In its concluding observations in 2014, the Committee on Economic, Social and Cultural Rights stated that ethnic minorities in China experienced widespread and persistent discrimination in employment. In its concluding observations on the review of China’s periodic report in 2014, the committee stated that although the Chinese Con- stitution and laws incorporate the principle of non-discrimination, there is no complete anti-discrimination law that is not conducive to protecting all marginalized and vulnerable individuals and groups enjoying economic, social and cultural rights;37 ethnic minorities, especially ethnic minorities in the western provinces and regions, “have been widely discriminated against” in employment and other fields, and it “urged” China to adopt comprehensive anti-discrimination laws and recommended that China focus on western provinces and regions. Combating all forms of discrimination against mi-

33. Article 67, paragraph 1, of the Law on Regional Ethnic Autonomy stipulates that: “Enterprises and institutions affiliated with state organs at higher levels shall, in accordance with state regulations, prioritize the recruitment of local minority personnel.” 34. Article 70 of the Law on Regional Ethnic Autonomy stipulates: “The higher-level State organs help ethnic autonomous areas to cultivate a large number of cadres at all levels, various professional and technical workers from local ethnic minorities; and adopt various forms of dispatch according to the needs of ethnic autonomous areas. Appropriate number of teachers, doctors, science and technology personnel, and management personnel, participate in the work of ethnic autonomous areas, and give appropriate care to their living conditions.” 35. Article 28, paragraph 1, of the Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council stipulates: “The leaders of higher-level people’s governments and their work departments shall reasonably equip minority cadres; the people’s governments of ethnic autonomous areas and their work departments. The leading cadres of the ethnic and other ethnic groups that implement regional autonomy should be equipped according to law. When publicly selecting and competing for the posts of leading cadres, they can draw corresponding quotas and positions and direct the selection of minority cadres.” 36. Article 29, paragraph 2, of the Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council stipulates: “The State adopts active measures to increase training for cadres of ethnic autonomous areas, and expands cadre training institutions and institutions of higher learning. The school trains the scale of cadres and talents for ethnic autonomous areas, and establishes and improves the exchange system between cadres of ethnic autonomous areas and central State organs and economically developed regions.” 37. E/C.12/CHN/CO/2, point 14, paragraph 1. 2018] THE RIGHT TO WORK OF CHINESE ETHNIC MINORITIES: 541 REPLIES TO CONCERNS AND SUGGESTIONS OF THE UN HUMAN RIGHTS TREATY BODIES norities and ensuring that they enjoy all economic, social and cultural rights, including the right to legal work.38 Earlier, the Committee on Economic, Social and Cultural Rights made a cautious statement in the 2005 concluding observations that “reported” that Chinese minorities are discriminated against in employment and the Commission found it regrettable that China did not provide sufficient information to explain the rights of ethnic minorities. The commentary in 2014 stated that the Commission itself determined that ethnic minorities in China were discriminated against in areas such as employment, and in 2005 it was stated that the Commission noted such reports. Com- paring the two, it is not difficult to find that the Committee’s views on China’s existing practices have gone from suspicion to categorical denial.39 The negative evaluation made by the Commission in 2014 with absolute expression differs greatly from the facts. It can be said that it is a fact that discrimination against ethnic minority workers still exists to a certain extent. However, it is debatable if it can be generally concluded that Chinese ethnic minorities “have been widely discriminated against” in employment and other fields.

A. Although China does not have a unified anti-discrimination code, the Constitution and the laws require the State to fulfill its obligations to prevent discrimination against ethnic minorities and positive obligations to promote ethnic equality. The Constitution stipulates that “citizens of the People’s Republic of China are equal before the law”,40 “Everyone in the People’s Republic of China is equal” “Pro- hibit discrimination and oppression against any nation”.41 The Labor Law stipulates the prohibition of employment discrimination based on factors such as ethnicity and religious beliefs.42 The Employment Promotion Law reaffirms this provision.43 The Labor Law confirms that laws and regulations can make special (favorable) provisions for minority employment matters. The Employment Promotion Law requires employers to properly take care of minority job seekers. The Regional Ethnic Autonomy Law and the Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council have made a number of regulations to promote the employment of ethnic minorities.44 It is particularly note- worthy that in the recruitment of State-owned economic units, minority candidates have been given extra points, the admission scores have been lowered, bilingual po-

38. E/C.12/CHN/CO/2, point 14, paragraph 2. 39. E/C.12/1/Add.107, paragraph 38. 40. Article 33, paragraph 2, of the Constitution. 41. Article 4, paragraph 1, of the Constitution. 42. Article 12 of the Labor Law stipulates that “the employment of workers shall not be discriminated against because of differences in nationality, race, gender or religious beliefs.” 43. Article 3, paragraph 2,of the Employment Promotion Law. 44. Articles 22, 23, 67, paragraph 1, and 70 of the Law on Regional Ethnic Autonomy; Articles 5, 8, 28 and 29, paragraph 2 of the Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council. 542 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 532 sitions established, and the number of bilingual job plans increased45 according to the source of students. In practice, candidates choose to take tests in their ethnic language.

B. The challenges faced by Chinese ethnic minorities in the employment field mainly stem from market forces and social discrimination. In order to compensate for the one-sidedness of the market, the Chinese government has made interventions. Governments at all levels have expanded the recruitment potential of State-owned economic units through public recruitment, interest subsidies to support self-employment, encourage mobile employment, support county economies facilitate the transfer the employment of farmers and herdsmen, organize employment and aid to Tibetans, and develop public welfare jobs for minority employment. The Chinese government has also improved the human capital level of minority workers by increasing the investment in education at all levels, and strives to improve the occupational structure of minority workers. However, the government’s interventions in the market have their limits. It is impossible to ensure that ethnic minority workers have access to jobs and satisfactory jobs through public power alone. Ethnic workers must fully enjoy the right to work, and should rely on the economic growth of the minority areas. It also requires ethnic minority citizens to make full use of the State’s support policies to better grasp scientific and cultural knowledge and production and management skills.

C. The Chinese government, through legal education and national unity education, strives to eliminate discrimination against ethnic minorities This is a complicated and arduous task that cannot be accomplished overnight. First of all, social discrimination will not be eliminated to a certain extent with the strengthening of ethnic exchanges as some researchers have suggest. On the contrary, in the market economy environment where inter-ethnic communication is closer, individual level or a certain range of inter-ethnic conflicts sometimes occur, and observers should not attribute the individual circumstances of certain units and personnel to minority workers to systematic discrimination. For example, a Taiwan-funded enterprise has made a decision not to recruit workers of a particular ethnic minority because a minority worker had an argument with other workers that escalated into a group fight, but such actions are prohibited. Second, social discrimination is not entirely the result of Han chauvinism. Narrow local ethnicism is also an important cause of spontaneous discrimination in society. Eliminating spontaneous discrimination in society requires the joint efforts of citizens of all ethnic groups. In recent years, there have been several provinces where Han people and ethnic minority personnel have jointly encouraged the elderly to purchase health care products at high prices. When the elderly went home, they found that the market price of the health care products was much lower than the purchase price, and therefore a dispute arose when they requested a refund. It should be added that some minority laborers do not know the law and do not

45. Bilingual post judges, prosecutors and other bilingual professionals face difficulties in academic accumulation and teacher qualifications, starting late and limited in scale. Undergraduate level bilingual legal talents in some institutions are about to graduate, and the relevant units in ethnic minority（ Continued on Next Page） 2018] THE RIGHT TO WORK OF CHINESE ETHNIC MINORITIES: 543 REPLIES TO CONCERNS AND SUGGESTIONS OF THE UN HUMAN RIGHTS TREATY BODIES abide by the law. It is not discriminatory to take enforcement measures against their actions according to law. For example, in real life, there are phenomena in which ethnic minority migrants sell swords and bows in traffic lanes. It is illegal to sell such swords and bows. The public security organs conduct legal education for these minority migrants and require them to stop any illegal activities and take administrative enforcement measures when necessary. This is not ethnic discrimination, but a normal law enforcement activity. The role of the market, discrimination in society, and the lack of legal concepts of some minority workers are enough to adversely affect the employment of ethnic minorities. This does not mean that the Chinese government condones discrimination against ethnic minorities in employment, and it does not mean that the Chinese government implements a systematic discrimination policy. The Chinese government is trying to contain and eliminate rumors by strengthening information disclosure. Judg- ing from the evaluation of the UN human rights treaty bodies, in the future the Chi- nese government should more fully clarify the truth about rumors and misunderstandings, and promote and strengthen the constructive dialogue between the UN human rights treaty bodies and the Chinese government. The human rights treaty bodies have generally concluded that Chinese ethnic minorities “have been widely discriminated against” in terms of employment, especially considering that such expressions imply that the system imposes systematic discrimination, and should focus on eliminating misunderstandings by fully introducing Chinese practices. Existing news reports and official periodic reports have not fully responded to false reports, leaving room for the spread and strengthening of rumors. China should focus on improving information disclosure and enhancing credibility. When the human rights treaty bodies are invit- ed to evaluate their own practices in a fair manner, they should first pay attention to the intelligibility of the sufficiency of information supply, and it is not appropriate to adopt fierce rhetoric. This is true even if the Chinese side views concerns and opinions that are based on misunderstandings or even prejudice. V. Conclusion Since the implementation of the urbanization and western development strategy, the status of working rights of Chinese minority laborers has been a key area for external observers to question. Negative comments have emerged one after another, which has affected the conclusions of the UN human rights treaty bodies’ review of China’s periodic reports. In this regard, China should respond in a differentiated manner according to whether the specific content of the negative opinions has a factual basis, and maintain openness and clarify its principles, and combine the effective protection of human rights with the international-friendly and constructive international dialogue to make greater contributions to the promotion of national practices and international cooperation.

（ Continued）areas are in urgent need, and supply is in short supply in the short term. As the training work continues to develop, the bilingual legal talents will gradually meet the needs of public security organs, administrative law enforcement agencies and other units in addition to meeting the needs of the people’s courts and people’s procuratorates. 544 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 532

Due to the high requirements of the UN human rights treaty bodies for the State party’s periodic reports, the length of the reports and the concluding observations as a result of the review are also relatively long, while there is now a request for a reduction in length. Compressing the length of these files does not mean that external observers are relaxing their attention. On the contrary, from the perspective of psy- chological laws, the shorter the length of these documents is, the more general the expression is, and the more the questions from the outside China will be stronger, and the Chinese government still needs to strengthen the optimization of information disclosure. (Translated by LI Man) THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

The UN Convention on the Rights of Persons with Disabilities and China’s Protection of the Right to Education of the Persons with Disabilities

XU Qiaoxian* & WU Tian**

Abstract: The UN Convention on the Rights of Persons with Dis- abilities effective in 2008 explicitly stipulates that Member States shall guarantee that people with disabilities enjoy the right to education free from discrimination and without prejudice to equal opportunities. The Chinese government made amendments to the Law of the Peo- ple’s Republic of China on the Protection of Persons with disabilities and the Regulation on the Education of the Persons with Disabilities and issued a series of rules on the Education of the Persons with Dis- abilities so as to actively implement the Convention. In recent years, the number and proportion of children with disabilities who receive education in China and the number of students with disabilities receiving high school and higher education have been on the rise annually. However, there is still a gap in the level of education on all stages between persons with disabilities and persons without, presenting a huge challenge for the achievement of the right to education of persons with disabilities. We should continue to actively fulfill the obligations prescribed by the Convention to protect the right to education, explore the construction of integrated education, support the maintenance system, strive to improve the quality of special education, allocate resources for the education of persons with disabilities, and emphasize the ap- praisal of the education of persons with disabilities. Keywords: UN Convention on the Rights of Persons with Dis- abilities  persons with disabilities  education situation  right to education

I. Introduction According to the statistics of the United Nations, persons with disabilities account for 10 percent of the total population in the world. While based on the latest

* XU Qiaoxian ( 许巧仙 ), Professor, Director of the Center for Legislation and Policy Research on the Educa- tion of the Persons with Disabilities in Nanjing Normal University of Special Education. ** WU Tian ( 吴填 ), Associate Professor of Nanjing Normal University of Special Education. This paper is a pe- riodical achievement of “Research on Marching and Optimization of Supply and Demand of Public Services for Persons with Disabilities” (Project No.:2017ZDIXM116) as a key project of philosophy and social sciences for Institutes of Higher Learnings in Jiangsu Province. The writing of the paper also received the financial support of “Disability and Development Research Base” (Project No.:2017ZSJD011) as a project of off-cam- pus research base for Institutes of Higher Learnings in Jiangsu Province and Six Major Talents Peak Projects of Jiangsu Province (Project No.:2016JY-043). 546 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 545 statistics, more than one billion people are suffering from some form of disability, accounting for about 15 percent of the total population worldwide.1 The UN Convention on the Rights of Persons with Disabilities was adopted in 2006 and entered into force in 2008 as the first binding international legal instrument explicitly taking persons with disabilities as the objects for protection. The Convention consists of four parts. The principles of equality and non-discrimination, the requirement for states parties to recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law, and the prohibition of all discrimination on the basis of disability are stipulated in it. The Conven- tion enshrines the rights of persons with disabilities to participate in politics, economy, society, culture, and public life, and so on, from the perspective of international law and provides specific provisions on the corresponding obligations of the state parties. According to article 24, state parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, state parties shall ensure an inclusive education system at all levels and lifelong learning. Persons with disabilities are not excluded from the general education system on the basis of their disability. Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live in order to fully develop their potential and sense of dignity and self-worth, strengthen respect for human rights, develop the personality, talents and creativity of persons with disabilities, as well as their mental and physical abilities, to their fullest potential, and enable persons with disabilities to participate effectively in a free society.2 On March 30, 2007, Wang Guangya, the permanent representative of China to the United Nations, signed the Convention on the Rights of Persons with Disabilities on behalf of China. In June, 2008, the NPC Standing Committee of China adopted the Convention which entered into force in China in September the same year. Realization of the right to education of persons with disabilities involves pre- school education, compulsory education, secondary education, higher education and life-long education.3 According to the Communiqué on Major Statistics of the Second China National Sample Survey on Disability, there are 3.87 million children with disabilities from 0-14, accounting for 4.66 percent of the total population of persons with disabilities. Among them, 2.46 million are at school age from 6-14.4 China implements a double-track education combining “general education” with “special education” for the education of persons with disabilities. Most of the persons with moderate and mild disabilities can receive general education while those with severe disabilities can receive special education. In the past decade, the Chinese government has implemented

1. World Report on Disability, accessed August 12, 2018. http://www.who.int/disabilities/. 2. UN Convention on the Rights of Persons with Disabilities (2006), accessed August 12, 2018. http: //www. un.org/disabilities/convention / conventionfull.shtml. 3. Xu Qiaoxian and Chang Xiaoming, “The Realization of the Right to Education of Children with Disabilities in China: Status Quo, Dilemma, and Government Obligation,” Human Rights 3 (2017): 65-77. 4. UN Convention on the Rights of Persons with Disabilities (2006), accessed August 12, 2018. http: //www. un.org/disabilities/convention / conventionfull.shtml. 2018] THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH 547 DISABILITIES AND CHINA’S PROTECTION OF THE RIGHT TO EDUCATION OF THE PERSONS WITH DISABILITIES the legislative concepts, basic principles, and major contents for protection of the right to education of persons with disabilities in the Convention through revising the laws and regulations on the education of persons with disabilities and promulgating and implementing rules and regulations for the education of persons with disabilities. Based on the content of legislation and institutional arrangements in the field of education for persons with disabilities in the past decade and the data from Educational Statistics Yearbook of China (2006-2016), China Statistical Yearbook on the Work for Persons with Disabilities (2006-2017), and relevant academic researches, this paper analyzes the realization of the right to education for persons with disabilities with such indexes as the number and proportion for persons with different levels of disabilities to receive education of different periods and put forward the prospect of further protection of the right to education for persons with disabilities. II. Legislation and Institutional Arrangements for Protection of the Equal Right to Education of Persons with Disabilities A. Amendment to Law on the Protection of Persons with Disabilities and Regulation on the Education of Persons with Disabilities In order to implement the specific provisions of the Convention on the obligations of the state parties to protect the right to education of persons with disabilities, the amendment to the Law on the Protection of Persons with Disabilities in 2008 further clarifies the principal obligations of governments at all levels to establish educational institutions for persons with disabilities and provide funds for students with disabilities. Article 21 of the previous law that “the state shall set up educational institutions for persons with disabilities and encourage social forces to run schools and donate funds for schools” is amended to article 24 that “the people’s governments at and above the county level shall, on the basis of the number, distribution, disability categories and other factors of persons with disabilities, reasonably set up educational institutions for persons with disabilities, and encourage the social forces to run schools and donate funds to schools.” The provisions that “the state shall exempt students with disabilities who accept compulsory education from tuition and reduce sundry fees or exempt them from such fees according to actual situations” and “the state shall set up grant-in-aid to assist students who are poor and disabled” in article 18 of the previous law are amended to “the people’s governments at all levels shall provide gratuitous textbooks to students with disabilities and students from poor families of persons with disabilities receiving compulsory education and give them boarding stipend and other subsidies, and in accordance with the relevant provisions of the state, provide aids to students with disabilities and students from poor families of persons with disabilities who receive education other than the compulsory education.” On September 28, 2012, the Committee on the Rights of Persons with Disabilities of the UN pointed out in the conclusion of the first report on the implementation of the UN Convention on the Rights of Persons with Disabilities by China that the policy of China to develop special education for persons with disabilities does not conform to the concept of inclusive ed- 548 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 545 ucation in the Convention.5 The Regulation on the Education of Persons with Disabili- ties amended in 2007 highlights the responsibilities and obligations of governments at all levels, especially governments at and above the county level, in protecting the equal rights to education of persons with disabilities and further clarifies the responsibilities and obligations of social organizations, regular schools, special education schools, and parents of persons with disabilities in eliminating discrimination in education and promoting persons with disabilities to receive suitable and high quality education. The amended regulation also clarifies that the quality of education of persons with disabilities should be improved through active promotion of inclusive education. Based on the disability categories and competence in acceptance of persons with disabilities, general education or special education could be chosen with priority given to the former.

B. Implementation of “two-phase” of special education promotion plan and professional standard for teachers of special education China has implemented “Two-phase” of Special Education Promotion Plan and Professional Standard for Teachers of Special Education to provide the institutional foundation for improvement of the quality of special education. During a videophone conference on special education in China on January 27, 2014, Premier Li Keqiang stressed that promotion of special education, as an important part of modernization of education, is of great significance for ensuring the right of persons with disabilities to equally participate in the social activities, increasing their well-being, and improving social equality and justice.6 Seven departments including the Ministry of Education, National Development and Reform Commission, the Ministry of Civil Affairs, the Ministry of Finance, the Ministry of Human Resource and Social Security, National Health and Family Planning Commission, and China Persons with disabilities’ Fed- eration, have jointly published “Two-phase” of Special Education Promotion Plan, providing top-level institutional design of the major objectives, key tasks, and main measures for developing the cause of special education and improving the quality of special education as well as the institutional foundation for local education administrative departments to develop special education. Special Education Promotion Plan (2014-2016) proposes to fully promote inclusive education; preliminarily establish a special education system with rational layout, connected periods of education, cooperation between general education and vocational education, and integration of medical care and education; construct the special education service and guarantee mechanism with financial investment, social support, full coverage, and great convenience; and realize the goal that 90 percent of children with impaired eyesight, hearing or mental disability can receive compulsory education by 2016. Special Education Promotion Program (2017-2020) proposes that the enrollment rate of children with disabilities in compulsory education will have reached over 95 percent by 2020; the ability to ensure learning in regular classroom and sending teachers to the residences of persons

5. Qu Xiangfei, “The UN Convention on the Rights of Persons with Disabilities and Protection of the Right to Persons with Disabilities,” Law Science 8 (2013). 6. Li Keqiang, Let Children with Disabilities Receive the Same Good Education to Others, accessed August 12, 2018. http://www.chinanews.com/gn/2014/01-27/5789843.shtml. 2018] THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH 549 DISABILITIES AND CHINA’S PROTECTION OF THE RIGHT TO EDUCATION OF THE PERSONS WITH DISABILITIES with severe disabilities will be fully enhanced; and the quality of special education will be fully improved with sufficient teachers for special education, a sound national curriculum and textbook system for special education, and overall improvement of the quality of learning in regular classrooms. In 2015, the Ministry of Education promulgated Professional Standards for Teachers of Special Education (for Trial Implemen- tation)7to clarify the basic professional requirements for qualified special education teachers and the fundamental norms for their teaching. As the basic principle to guide the professional development of special education teachers, the standard is having a positive impact on improving the efforts to build a professional team of special education teachers, the professional quality of special education teachers, and the quality of special education.

C. Publishing relevant rules and regulations for accelerating the development of vocational education for persons with disabilities The Convention, as a core human rights convention of the UN, marks the first time in the history of international human rights that providing reasonable accommodation to persons with disabilities is human right.8 It is clearly stated in article 24 of the Convention that state parties shall ensure that reasonable accommodation is provided to persons with disabilities and persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others.9 In order to implement the requirements of the Convention and provide better guarantees for persons with disabilities in China to receive high school and higher education, four government departments including the Ministry of Education promulgated Opinions on Accelerating the Development of Vocational Education for Persons with Disabilities in 2018. It clarified that more opportunities should be provided for persons with disabilities to receive vocational education, with the emphasis on secondary vocational education, the amelioration of the basic conditions for schools carrying out vocational education for persons with disabilities, and improving the quality of vocational education for persons with disabilities. 10As the first guiding policy document focusing on the promoting of vocational education for persons with disabilities in China, it fully reflects the fundamental requirements for promoting the all-round development of persons with disabilities, which is of great significance to accelerating the construction of a modern education system, perfecting the education system for persons with disabilities, and pushing forward the cause of education for persons with disabilities in China. In order to ensure the equal right of persons with disabilities to participate in the National College Entrance Ex-

7. Notice of the Ministry of Education on Printing and Issuing the Professional Standard for Special Education Teachers (for Trial Implementation), accessed August 12, 2018. http://www.cdpf.org.cn /zcwj/zxwj/201509/ t20150903_526904.shtml 8. Qu Xiangfei, “The UN Convention on the Rights of Persons with Disabilities and Protection of the Right to Persons with Disabilities,” Law Science 8 (2013). 9. UN Convention on the Rights of Persons with Disabilities (2006), accessed August 12, 2018. http: //www. un.org/disabilities/convention / conventionfull.shtml. 10. Opinions on Accelerating the Development of Vocational Education for Persons with Disabilities, promulgated by four government departments including the Ministry of Education, accessed August 12, 2018. http:// www.cdpf.org.cn/zcwj/zxwj/201807 /t20180719_632660.shtml 550 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 545 amination, the Ministry of Education and China Persons with disabilities’ Federation jointly promulgated Regulations on the Participation of Persons with Disabilities in National College Entrance Examination (Provisional) in May 2015. It clarified that admission and examination institutions should provide 12 necessary conditions and reasonable accommodation, including examination papers in Braille and large-sized typing, exemption from listening tests, priority in entering the examination sites, and appropriate extension of test time, based on the disability situation and needs of the students with disabilities, as well as the practical conditions of different regions under the premise of ensuring the safety and order of the examination.11 More and more high school students with disabilities have applied for the reasonable accommodation in the National College Entrance Examination and more high school students with disabilities have thus entered institutes of higher learning after passing the examination.

D. Promulgating the Plan for Promotion of National General Sign Language and Braille It is clearly stated in the Convention on the Rights of Persons with Disabilities that state parties shall facilitate the learning of Braille, alternative script, augmenta- tive and alternative modes, means and formats of communication and orientation and mobility skills, facilitate peer support and mentoring, and facilitate the learning of sign language and the promotion of the linguistic identity of the deaf community.12 Sign language and Braille are special languages used by more than 30 million persons with hearing and visual disabilities in China. Promotion of national general sign language and Braille will not only safeguard the rights of persons with hearing and visual disabilities to the use of language but also play an important role in the learning of knowledge, acquisition of information, and social interaction of persons with disabilities for fairer participation in social life as well as equal realization of their rights and integrated development. Based on the tasks and objectives in the National Sign Lan- guage and Braille Standardization Action Plan (2015–2020) promulgated by China Persons with disabilities’ Federation, the Ministry of Education, State Language Com- mission, and the State Administration of Press, Publication, Radio, Film, and Televi- sion in 2015, the Publicity Department of the Central Committee of the Communist Party of China, China Persons with disabilities’ Federation, the Ministry of Education, State Language Commission, and the State Administration of Press, Publication, Radio, Film, and Television jointly published the Notice on Promotion of National General Sign Language and Braille, Program for Promotion of National General Sign Language, and Program for Promotion of National General Braille to provide planning and design for the objectives, major measures, guarantee mechanism, and so on, of the promotion of sign language and Braille.13

11. Regulations on the Participation of Persons with Disabilities in National College Entrance Examination (Provisional) (No. 2, 2015), accessed August 12, 2018. http: //www. cdpf. Org.cn/zcwj/zxwj/201505/ t20150507_447132.shtml 12. UN Convention on the Rights of Persons with Disabilities (2006), accessed August 12, 2018. http: //www. un.org/disabilities/convention / conventionfull.shtml. 13. Notice on Promotion of National General Sign Language and Braille, accessed August 12, 2018. http://www. cdpf.org.cn /zcwj/zxwj/201806/t20180626_ 630735.shtml 2018] THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH 551 DISABILITIES AND CHINA’S PROTECTION OF THE RIGHT TO EDUCATION OF THE PERSONS WITH DISABILITIES III. Progress in the Education of Persons with Disabilities in the Past Decade A. The level of compulsory education for children with disabilities has been on the rise annually There are three major forms for children with disabilities to receive compulsory education in China: the first is to receive special education in special education schools; the second is to receive special education in special education classes in regular primary schools and regular (vocational) junior high schools; the third is to learn in regular classroom of regular primary schools and regular (vocational) junior high schools. According to the statistics of education in the past decade, the number of special education schools has been on the rise every year. In 2007, there were a total of 1,618 special education schools in China. In 2016, the number had increased to 2,080. It is discov- ered after comparing the situation in the eastern, central and western regions that the eastern region has the largest number of special education schools which is followed by the central region and then the western region. Nevertheless, the annual increase rate of the number of special education schools in western regions from 2007 to 2016 is the highest among the three regions (See Table 1). The number of children with disabilities in schools has been on the rise annually. In 2007, the total number of children with disabilities in schools was 409,711. By 2016, the number had increased to 491,740.14 The gross enrollment rate of children with disabilities in compulsory education has been on the rise annually. From 2006 to 2010, the annual gross enrollment rate of children with impaired eyesight, hearing or mental disability in compulsory education nationwide was 52.13 percent, 57.11 percent, 56.87 percent, 61.11 percent, and 63.23 percent. The overall situation showed a growth tendency, except for a slight decrease from 2007 to 2008. The annual average growth rate for the five years was 4.94 percent.

Table 1 The Number of Special Education Schools and Annual Average Growth Rate from 2007 to 2016

Annual Average Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Growth Rate Nation- 1,618 1,640 1,672 1,706 1,767 1,853 1,933 2,000 2,053 2,080 2.83% wide Eastern 731 742 759 766 778 798 812 822 838 842 1.58% Region Central 532 531 540 546 569 587 613 637 645 659 2.41% Region Western 355 367 373 394 420 468 508 541 570 579 5.59% Region

14. Ministry of Education, Educational Statistics Yearbook of China (Beijing: People’s Education Publishing House, 2017). 552 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 545

B. The number of students with impaired eyesight, hearing or mental disability in high school has been on the rise High school education for persons with disabilities refers to education of persons with disabilities in regular high schools and secondary vocational schools. The number of students with impaired eyesight or hearing in high school showed a growth tendency from 2007 to 2016. In 2007, the number of students with impaired eyesight in classes of regular high schools in special education schools in China was merely 931. In 2013, the number reached the peak at 1,609. Although it dropped to 1,297 in 2015, it increased to 1,557 in 2016. In 2007, the number of students with impaired hearing in classes of regular high schools in special education schools in China was merely 4,047. In 2011, the number reached the peak at 6,198. In 2016, it dropped slightly to 6,129 (See Table 2).

Table 2 The Number of Students in Classes of Regular High Schools in Special Education Schools in China from 2007 to 201615

Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Students with 931 1,006 1,142 783 1,009 1,488 1,609 1,054 1,297 1,557 Impaired Eyesight Students with 4,047 4,458 5,197 5,284 6,198 5,555 5,704 6,173 6,191 6,129 Impaired Hearing

The purpose of secondary vocational education for persons with disabilities aims to help persons with disabilities master the skills to secure their own livelihoods, adapt to the modern society, live a dignified life and contribute to social development. There are mainly three forms of secondary vocational education for persons with disabilities in China: the first is to receive education in secondary vocational schools (classes) for persons with disabilities; the second is to receive vocational education for persons with disabilities only in regular vocational schools; and the third is to receive vocational education together with other students.16 From 2007 to 2016, the total number of students with impaired eyesight, hearing or physical disabilities in secondary vocational education had been basically stable with slight rise and decline. In 2007, the number of students with impaired eyesight in secondary vocational schools (classes) for persons with disabilities was merely 2,114. It reached the peak at 3,399 in 2010. In 2016, it dropped to 2,306. In 2007, the number of students with impaired hearing was merely 4,513. It reached the peak at 6,183 in 2009. In 2016, it dropped slightly to 4,006. In 2007, the number of students with impaired hearing was 2,401. It reached the peak at 3,333. In 2015, it dropped to 1,249. In 2016, it increased to 2,029. (See Table 3)

15. China Persons with disabilities’ Federation, China Statistical Yearbook on the Work for Persons with Dis- abilities (2008 to 2017) (Beijing: China Statistics Press, 2017). At present, the statistical data merely cover the number of students with impaired eyesight or hearing in classes of regular high schools in schools for students with impaired eyesight, schools for students with impaired hearing, and special education schools. There is no specific data on the persons with disabilities of other categories who receive education of regular high school in regular schools. 16. He Yunxia, “Study on Problems and Countermeasures of Vocational Education for Persons with Disabilities,” Master diss. Hunan Normal University, 2011. 2018] THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH 553 DISABILITIES AND CHINA’S PROTECTION OF THE RIGHT TO EDUCATION OF THE PERSONS WITH DISABILITIES Table 3 The Number of Students in secondary Vocational Schools (Classes) for Persons with Disabilities from 2007 to 2016

Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Students with Impaired 2,114 2,112 2,513 3,399 2,995 2,495 2,916 3,274 1,702 2,306 Eyesight Students with Impaired 4,513 5,544 6,183 5,368 5,319 4,978 5,101 5,083 3,612 4,006 Hearing Students with Impaired 2,401 2,276 2,752 2,739 3,258 2,969 3,333 3,314 1,249 2,029 Limbs

C. The number of persons with disabilities in general tertiary education and colleges of special education has increased significantly There are mainly two forms of higher education for persons with disabilities in China at present: the first is to take the National College Entrance Examination for receiving general tertiary education in regular institutions of higher learning; the second is to take the examination for students with impaired eyesight or hearing only17 for receiving special tertiary education in independent secondary colleges or departments for special education in regular institutions of higher learning. From 2007 to 2016, the number of students with impaired eyesight, hearing or limns admitted to the regular institutions of higher learning after taking the National College Entrance Examination rose annually with the fastest increase in the number of students with impaired eyesight. In 2007, the number of students with impaired eyesight admitted to the regular institutions of higher learning after taking the National College Entrance Examination was merely 379. In 2016, it peaked at 1,217 with an annual average growth rate of 13.84 percent, which ranks first among the three disability categories. In 2007, the number of students with impaired hearing admitted to the regular institutions of higher learning after taking the National College Entrance Examination was 466. In 2016, it reached 1,333, representing an annual average growth rate of 12.39 percent, which ranks the second among the three disability categories. In 2007, the number of students with physical disabilities admitted to the regular institutions of higher learning after taking the National College Entrance Examination was 4,389. In 2016, it peak at 6,015, with an annual average growth rate of 3.56 percent, which ranks third among the three disability categories. (See Table 4)

17. The examination for students with impaired eyesight or hearing only is the admission system approved by the Ministry of Education to provide independent papers and examinations by institutes of higher learning with colleges or departments for special education facing students with impaired eyesight or hearing. As early as 1987, the College of Special Education of Changchun University started to admit students with impaired eyesight in this way. 554 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 545

Table 4 The number of students with impaired eyesight, hearing, or limbs admitted to the regular institutions of higher learning and the annual average growth rate18

Annual Average Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Growth Rate Students with Impaired 379 437 535 547 577 571 663 694 1,194 1,217 13.84% Eyesight Students with Impaired 466 566 649 798 754 849 1,097 966 1,092 1,333 12.39% Hearing Students with Impaired 4,389 5,270 5,402 6,429 5,769 5,809 5,778 5,716 5,302 6,015 3.56% Limbs

From 2007 to 2016, the number of students with impaired eyesight or hearing admitted to institutes of higher learning with colleges or departments for special education after taking the examination for students with impaired eyesight or hearing showed a growth tendency with comparatively faster growth rate for students with impaired hearing. In 2007, the number of students with impaired eyesight admitted to institutes of higher learning with colleges or departments for special education after taking the examination for students with impaired eyesight or hearing only was 212. In 2016, it peaked at 1,217, with an annual average growth rate of 6.03 percent. In 2007, the number of students with impaired hearing admitted to institutes of higher learning with colleges or departments for special education after taking the examination for students with impaired eyesight or hearing only was 874. In 2016, it peaked at 1,445, with an annual average growth rate of 5.75 percent. (See Table 5)

Table 5 The number of students with impaired eyesight or hearing admitted to institutes of higher learning with colleges or departments for special education and the annual average growth rate19

Annual Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Average Growth Rate Students with Impaired 212 225 205 189 225 331 255 335 296 359 6.03% Eyesight Students with Impaired 874 807 991 868 652 803 1,133 1,343 1,162 1,445 5.75% Hearing

18. He Yunxia, “Study on Problems and Countermeasures of Vocational Education for Persons with Disabilities.” 19. Ibid. 2018] THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH 555 DISABILITIES AND CHINA’S PROTECTION OF THE RIGHT TO EDUCATION OF THE PERSONS WITH DISABILITIES IV. Challenges for the Achievement of the Right to Education of Per- sons with Disabilities A. The level of compulsory education for children with disabilities is still low and with obvious disparity between rural and urban areas as well as different regions Comparing the data on the gross enrollment ratio of children in primary and junior high school in Educational Statistics Yearbook of China, that for children with disabilities was 20-50 percentage points lower from 2006 to 2014.20 In the three forms of special education, the percentage of children with disability learning in the regular classrooms of regular primary schools and regular (vocational) junior high schools has declined and the percentage for the number of students in special education schools is increasing, which is contrary to the development trend of the world for children with disabilities to receive inclusive education in regular schools. There are still nearly 100,000 school-age children with disabilities who are not enrolled in school and over 80 percent of them are distributed in rural areas of the central and western regions. Due to the weak foundation, the gross enrollment rate of children with disabilities in compulsory education in the western region is far lower than that in the more developed eastern region. There are still no special education schools in over 500 counties with a population of less than 300,000. Compared to children with impaired eyesight, hearing, or a mental disability, the number of children with autistic disorders, cerebral palsy, severe or multiple disabilities who can receive education is much smaller. Be- cause the support system of special education teachers and professionals for children with disability learning in regular classrooms hasn’t been established, the quality for the learning of children with disabilities in regular classrooms is comparatively low.

B. The number and proportion of persons with disabilities receiving high school education is to be improved According to the statistics of the second China national sample survey on disability in 2006, the percentage of children with disabilities in high school in China was comparatively low at merely 5.62 percent.21 And over the past decade, the gross enrollment rate of persons with impaired eyesight or hearing in high schools is still far lower than that of ordinary students. In 2006, the gross enrollment rate of ordinary students in high schools was 59.8 percent. Increasing year by year to 87.0% in 2015, a total increase of 27.2% over the decade. In 2006, the gross enrollment rate of students with impaired eyesight in high schools was 5.41 percent. The number increased year by year to 6.17 percent in 2015, a total increase of merely 0.76 percent over the decade. In 2006, the gross enrollment rate of students with impaired hearing in high

20. Ministry of Education, Educational Statistics Yearbook of China (2006-2014) (Beijing: People’s Education Publishing House, 2014). The gross enrollment rates of ordinary children in primary school from 2006 to 2014 were 106.3%, 106.2%, 105.7%, 104.8%, 104.6%, 104.2%, 104.3, 104.4%, and 103.8% respectively and the gross enrollment rates of ordinary children in junior high school from 2006 to 2014 were 97.0%, 98.0%, 98.5%, 99.0%, 100.1%, 100.1%, 102.1%, 104.1%, and 103.5% respectively. 21. Xu Baosheng, “On the Status Quo and Development Policy of Vocational Education of Persons with Disabil- ities,” Journal of Zhejiang Normal University (Social Sciences) 6 (2012). 556 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 545 schools was 10.34 percent. It increased year by year to 38.65 percent in 2015, a total increase of 28.31 percent in a decade. (See Table 6) Besides, the total number of students with impaired eyesight, hearing, or limbs in secondary vocational education is declining. In Tibet and Hainan, students with impaired eyesight, hearing, or limbs barely have the opportunity to receive high school education.22

Table 6 Comparison of the Gross Enrollment Rate of Ordinary Students and Students with Impaired Eyesight or Hearing in High School Education from 2006 to 201523 Unit:%

Year 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Ordinary Students 59.80 66.00 74.00 79.20 82.50 84.00 85.00 86.00 86.50 87.00 Students with 5.41 5.19 5.64 7.12 8.12 9.83 9.60 10.33 9.48 6.17 Impaired Eyesight Students with 10.34 13.64 17.76 24.96 15.65 31.52 31.95 37.45 40.31 38.65 Impaired Hearing

C. The proportion and level of persons with disability receiving higher education are comparatively low Due to the discrimination against persons with disabilities24, inadequate protection for them in the enrollment system and process of institutes of higher learning, and other reasons, the proportion of persons with disabilities receiving education in regular institutions of higher learning is still below average. From 2007 to 2016, the number of persons with disabilities in every 10,000 people admitted to higher education had been on the rise annually, yet the total proportion of persons with disabilities in those admitted to higher education is still low. In 2007, the number of people admitted to higher education in China was 5.6592 million, including 6,320 persons with disabilities. For every 10,000 people admitted to higher education, there were 11.17 persons with disabilities. With the growing number of people admitted to higher education later year on year, the number of persons with disabilities admitted to higher education also increased annually from 6,320 in 2007 to 10,534 in 2016. The number of persons with disabilities in every 10,000 people admitted to higher education also increased from 11.17 to 14.07 in 2016. However, as for the proportion, the number of persons with disabilities admitted to institutions of higher learning merely accounted for 0.14 percent of the total number of people admitted to institutions of higher learning even in 2016 which was the highest in the decade. There is a huge gap between it and the percentage of persons with disabilities in the total population at 6.39 percent in the second China national sample survey on disability.

22. He Yunxia, “Study on Problems and Countermeasures of Vocational Education for Persons with Disabilities.” 23. Ministry of Education, Educational Statistics Yearbook of China (2014) (Beijing: People’s Education Pub- lishing House, 2015). Office for the Second China National Sample Survey on Disability, Statistics of the Second China National Sample Survey on Disability (Nationwide) (Beijing: China Statistics Press, 2007). The population of persons with impaired eyesight and hearing aged from 15-17 in these years is inferred from the second China national sample survey on disability. 24. Li Keqiang, Let Children with Disabilities Receive the Same Good Education to Others, accessed August 12, 2018. http://www.chinanews.com/gn/2014/01-27/5789843.shtml 2018] THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH 557 DISABILITIES AND CHINA’S PROTECTION OF THE RIGHT TO EDUCATION OF THE PERSONS WITH DISABILITIES Table 7 Persons with Disabilities Admitted by Higher Education from 2007 to 201625

Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Number of People Admitted to 565.92 607.66 639.49 661.76 681.50 688.83 699.83 721.40 737.85 748.61 Higher Education Number of Persons with Disabilities 6,320 7,305 7,782 8,731 8,027 8,363 8,926 9,542 10,186 10,534 Admitted to Higher Education Number of Persons with Disabili- ties Admitted to Higher Education 11.17 12.02 12.17 13.19 11.78 12.14 12.75 13.23 13.80 14.07 in Every 10,000 People Admitted to Higher Education

The level of students with impaired eyesight, hearing, or limbs in regular institutions of higher learning is low. There are more students taking short-cycle courses than those taking normal courses as undergraduates. The number of persons with disabilities with postgraduate degrees is very small nationwide. From 2006 to 2015, the number of students with impaired eyesight, hearing, or limbs admitted to regular institutions of higher learning rose. Among them, 34,984 took short-cycle courses while 33,220 took normal courses. The number of those taking short-cycle courses surpassed those taking normal courses. The average for those taking normal courses in the total number in the decade was 48.9 percent.26 From 2006 to 2015, the level of students with impaired eyesight or hearing in higher special education was comparatively low and most of them took short-cycle courses. The number of those taking short-cycle courses surpassed those taking normal courses in higher special education. In 2006, 986 students with impaired eyesight or hearing were admitted to higher special education colleges and the number of those taking normal courses accounted merely for 33.4 percent. The proportion increased later, yet the highest proportion was 42.9 percent in 2013.27 V. Prospects of Further Protection of the Equal Right to Education of Persons with Disabilities Protection of the rights of persons with disabilities is the inherent requirement for realizing social justice which is the primary value of the social system.28 The work for

25. China Persons with disabilities’ Federation, China Statistical Yearbook on the Work for Persons with Dis- abilities (2007 to 2016) (Beijing: China Statistics Press, 2017). Ministry of Education, Educational Statistics Yearbook of China (2006-2015) (Beijing: People’s Education Publishing House, 2016). 26. Ling Kang and Bai Xianchun, etc., Report on the Development of Work for Persons with Disabilities (2006- 2015) (Beijing: China Statistics Press, 2017), 119. 27. Ibid., 120. 28. John Rawls, A Theory of Justice, trans. He Huaihong, etc. (Beijing: China Social Science Press, 1988), 1. 558 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 545 persons with disabilities is an important part to promote social justice and educational equality as well as the realization of educational modernization. Meanwhile, it is the primary task to improve the people’s lives and accelerate the process of the moderate prosperity of persons with disabilities. China is not only a state party to the UN Convention on the Rights of Persons with Disabilities, but also a country with a large population of persons with disabilities. In order to better protect the equal right of persons with disabilities to education, China should take positive actions in the following aspects.

A. Actively promoting the concept of inclusive education and exploring the supporting policies and modes of practice While putting forward the new ideas of inclusive education, the Convention on the Rights of Persons with Disabilities clarifies that persons with disabilities enjoy the rights to participate in regular education and life-long education and stresses the obligations of state parties to provide reasonable support. The amended Regulation on the Education of Persons with Disabilities has also established the concept and institution for inclusive education.29At present, the education administrative departments and regular schools should actively explore and make supporting policies for persons with disabilities to receive inclusive education in regular kindergartens, schools, including institutions of higher learning, which covers admission, management in school, and employment upon graduation. The quality of inclusive education should be improved while satisfying the needs of persons with disabilities to receive inclusive education. China should pay special attention to the construction of a support system for learning in the classrooms of regular schools, explore the allocation of quota for relevant teachers and special education funds for persons with disabilities to learn in regular classrooms, and construct the teaching mode in line with the local economic, social, cultural and educational development level as well as development features to constantly improve the quality of learning in regular classroom for children with disabilities.

B. Emphasizing the professional training of teachers for special education to provide professional support for improving the quality of special education All institutions of higher learning cultivating teachers for special education in the country should formulate scientific and rational programs for training special education talents, continuously improve the quality of talent training for special education, and provide professional support for the improvement of the educational quality of schools of special education in accordance with Professional Standard for Teachers of Special Education (for Trial Implementation) issued by the Ministry of Education. At the national level, preferential policies on special funds for education of persons with disabilities should be given to the central and western regions to support normal university in central and western regions to establish the departments of special education and admit students majoring in special education. The score for admission to the department of special education could be reduced appropriately. Meanwhile, more pro-

29. Ding Xiangshun, “UN Convention on the Rights of Persons with Disabilities and Development of Inclusive Education for Persons with Disabilities in China,” Chinese Journal of Special Education 6 (2017). 2018] THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH 559 DISABILITIES AND CHINA’S PROTECTION OF THE RIGHT TO EDUCATION OF THE PERSONS WITH DISABILITIES fessional teachers of special education could be provided for the central and western regions by selecting students in these regions to study in institutions of higher learning focusing on special education in eastern regions who should return after graduation. For high school education, conditions should be created to collaborate with regular high schools to improve the quality of teaching. Meanwhile, cooperation should be established with regular vocational schools to make full use of the training bases and professional teachers to improve the teaching quality of special education.

C. Exploring policies to support education of persons with disabilities in high school and above to enhance the education level of persons with disabilities China should explore the policy to provide high school education for persons with disabilities for free to ensure that more persons with disabilities can receive regular high school education and secondary vocational education. China should explore the policy to promote education for persons with disabilities in high schools, enhance the construction of high school departments in special education schools, and accelerate the development of secondary vocational schools for persons with disabilities. China should explore special policies to support persons with disabilities to receive higher education and support the existing departments and colleges for special education in regular institutions of higher learning to improve their level of education so as to provide more opportunities for persons with disabilities to receive higher special education at the undergraduate level and above. During the examination of institutions of higher learning for special education for admission of persons with disabilities, preferential policies should be given to provinces with less persons with disabilities receiving higher education in inland area and remote provinces, in particular, Hainan, Tibet, Qinghai, so as to provide more opportunities for persons with disabilities to receive higher education in this way. The institutions of higher learning for special education should set up the departments rationally in close relation to the demands of local economic and social development and the characteristics of persons with disabilities to provide more choices for students with disabilities and improve the proportion and quality of students with disabilities receiving higher education.

D. Improving the statistical indicator system for education of persons with disabilities to highlight the evaluation of development of education for persons with disabilities China should construct a statistical indicator system for pre-school education of children with disabilities and improve those for compulsory education, high school, and higher education to provide monitoring and evaluation tools for the development of education for persons with disabilities. To be specific, during the period of pre- school education, statistical indicators focusing on pre-school classes run by special education schools, regular kindergartens accepting children with disabilities, non-governmental education institutions for children with disabilities, rehabilitation centers for early rehabilitation under the persons with disabilities’ federation, and other organizations should be established for statistics and monitoring. In the period of compulsory education, statistical indicators covering school-age children with disabilities, services 560 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 545 of remote education or sending teachers to the residences of persons with severe disabilities, and so on, should be established to grasp such basic data as the change of the number of school-age children with disabilities, children requiring for teachers to go to their residence to teach them, and so on, in timely manner. For high school education, more indicators of students with disabilities should be added to collect high school education for students with different categories of disabilities, the number of students with disabilities admitted by vocational education, the total number of students with disabilities in the period, the total number of graduates, and so on. For higher education period, more indicators of students with disabilities should be added to collect the number of students receiving higher education, the total number of students with disabilities in the period, the total number of graduates, and so on. (Translated by HU Liang) THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

The “Erga Omnes” of the Protection of Fundamental Human Rights and the “Complementary Protection” of Refugees Not Prescribed by the UN Convention Relating to the Status of Refugees

SUN Xu*

Abstract: The United Nations Convention Relating to the Status of Refugees 1951 and its Protocol in 1967 set Four Essentials to limit the definition of “refugee”. The concept of complementary protection emerged in academia and practice for those who, though they do not have the essentials, are in need of protection. Complementary protection is considered not only a moral obligation, but also a legal obligation. Although as the result of developing the principle of “non-refoulement” in international law, “complementary protection” should be limited when economic and social rights are concerned. The development of the non-refoulement principle and the emergence of “complementary protection” are based on the Erga Omnes of human rights. The International Court of Justice has restricted the emergence and evolvement of obligations Erga Omnes within the scope of obligations concerning fundamental and non-derogable human rights, and therefore, the application of “complementary protection” in protecting economic and social rights has been limited. Only when the unbalance of economic and social rights has been serious enough to impact other fundamental human rights will the obligation of “complementary protection” ensue. Keywords: Refugee  complementary protection  Obligation Erga Omnes  fundamental human rights  the principle of non-refoulement

As stipulated in the Convention Relating to the Status of Refugees in 1951 and its Protocol in 1967, the term “refugee” is narrowly defined, i.e., to those persons who meet the four essentials1 set out in the Convention. Thus, those who are displaced from their homes due to natural disasters, armed conflict, backward economy and such fail to be included as “Convention Refugees” considering the lack of the essential “oppression”, and are classified as refugees not prescribed by the Convention. However, these suffering natural disasters and civil war or whose lives’ are at peril are

* SUN Xu ( 孙旭 ), Ph.D. candidate, Law School of Renmin University of China. 1. First, the person should stay in a country other than his or her country of origin; Second, the person is unable or unwilling to return to the country of origin; Third, the person’s inability or unwillingness to return to the country of origin is due to justified fear; Fourth, justified fear includes five reasons: race, religion, nationality, 1. belonging to a social group and having a political opinion. 562 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 561 also in urgent need of help to make a living, so the theory on “non-refoulement” to refugees not prescribed by the Convention emerged. This triggered the theoretical development of “complementary protection”2 that was put into practice in Directive on the Minimum Qualifications and Status of Nationals from a Third Country or Stateless Applying to be Refugees or Seeking International Protection of the European Union in 2004. “Complementary Protection” is a bridge linking the International Law on Refugees, International Law on Migration and International Law on Human Rights,3 and for implementation, the principle of “non-refoulement” is required to be applied to refugees not prescribed by the UN for the Convention Relating to the Status of Ref- ugees. The emergence and development of Obligation Erga Omnes, particularly that related to the protection of fundamental human rights, has promoted the “complementary protection” for the refugees not prescribed by the Convention. It should be noted that the International Court of Justice of the United Nations is very cautious in defining the Obligation Erga Omnes, limiting it to the protection of the most fundamental human rights. Therefore, a state should take the scope of Obligation Erga Omnes for reference in defining which foreigners should be given complementary protection. I. “Obligation Erga Omnes” of Protecting Fundamental Human Rights The Erga Omnes Obligations in international law were proposed decades ago by the International Court of Justice of the United Nations in a judgment that received widespread attention and recognition, and which has been widely popularized. There have been a large number of international practices, court decisions and academic researches related to Erga Omnes Obligations since. They are also known as “obligations to all” or “obligations to the whole international community”, and translated as “universal obligations” or “obligations to all” in some documents. This paper adopts the version of Erga Omnes Obligations. Erga Omnes Obligations emphasize that abiding by certain international obligations will fulfill the interests of the entire international community. This paper reviews the interpretation and supplement of the concept of Erga Omnes Obligations made by the International Court of Justice.

A. The emergence and development of “Obligation Erga Omnes” in the practice of the International Court of Justice The concept of Erga Omnes Obligations was first proposed by the International Court of Justice in 1970 in the case of Barcelona Traction, Electric Light and Power Company (hereinafter referred to as “the Barcelona Traction case”), to distinguish it from obligations under the rules of diplomatic protection in international law. Ac- cording to the legal statement of the International Court of Justice, Erga Omnes Ob- ligations apply to the international community as a whole and the protection of Erga

2. Jane McAdam, Complementary Protection in International Refugee Law (Oxford: Oxford University Press, 2007), 2-3. 3. Katie Sykes, “Hunger without Frontiers: The Right to Food and State Obligation to Migrants,” in International Law of Disaster Relief, David D Caron, Michael J Kelly and Anastasia Telesetky eds. (NewYork: Cambridge University Press, 2014), 190. 2018] THE “ERGA OMNES” OF THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS 563 AND THE “COMPLEMENTARY PROTECTION” OF REFUGEES NOT PRESCRIBED BY THE UN CONVENTION RELATING TO THE STATUS OF REFUGEES Omnes rights is of interest to and obligation of all states and of concern to all states.4 The International Court of Justice then stated, by way of enumeration, that in modern international law the obligation to avoid aggression and genocide, with principles and rules relating to fundamental human rights (including the prohibition of slavery and racial discrimination) is an Erga Omnes Obligation. Based on this, the Court distinguished the two obligations and determined that in this case, only the country where the company registered has the right of relief through diplomatic protection, and no other country can make appeals on behalf of the company. However, there would be no such limitation for Erga Omnes Obligations.5 Erga Omnes Obligations are different from the concept of bilateral obligations in traditional international law, reflecting the changing trend of current international law.6 Traditional international law is enacted on the basis of reciprocity, and the rights and obligations of states are relative.7 An Erga Omnes Obligation is universal, binding on all countries, and its fulfillment is beneficial to all countries in the international community. However, traditional international social relations are bilateral. According to the bilateralism of traditional international law, a country’s request for another country to fulfill a specific obligation must be on the premise that it has the subject interests recognized by law.8 The concept of Erga Omnes Obligations proposed by the International Court of Justice reflects the structural change of international legal rules, attracting the high attention of scholars. The International Court of Justice plays a crucial role in the development of the concept of Erga Omnes Obligations.9 In subsequent practice, the International Court of Justice held that the rights of self-determination, freedom from genocide and ill-treatment of colonial people have the characteristics of Erga Omnes Obligations, and the obligation securing these rights is an Erga Omnes Obligation.10 In the advisory opinion in the “case of a separation wall” in 2004, the International Court of Justice reiterated its statement in the “Barcelona Traction case”, indicating the Erga Omnes nature of the right to self-determination.11 The obligation of eradicating genocide is included in Erga Omnes Obligations listed by the International Court of Justice

4. “ Case Concerning the Barcelona Traction, Light and Power Company, Limited, Belgium v. Spain ”, ICJ Re- ports 3 (1970), paras 33-34. 5. Ibid., paras 33 -35. 6. Katariina Simonen, “International Conflicts and Protection of Fundamental Human Rights as an Obligation Erga Omnes,” Finnish Yearbook of International Law 10 (1999): 191. 7. Zhu Lijiang: “Contribution of the International Court of Justice to International Human Rights Law”, Foreign affairs Review 10 (2006). 8. Bruno Simma, “Bilateralism and Community Interest Confronted”, in 250 Collected Courses of the Hague Academy of International Law , The Hague Academy of International Law (1994) : 229. 9. Shinya Muresa, “Second Report on the Protection of Atmosphere”, International Law Commission, Sixty-Sev- enth Session (2015), UN Doc A/CN. 4/681, para. 43. 10. “ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) not Withstanding Security Council Resolution 276”, Advisory Opinion, ICJ Reports 2(1971), para. 31. West- ern Sahara, Advisory Opinion, ICJ Reports 33 (1975), para. 31. “Case Concerning East Timor, Portugal vs. Australia”, ICJ Reports 90 (1995), para. 29. 11. “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” Advisory Opinion, ICJ Reports 136 (2004), para. 155. 564 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 561 in the Barcelona Traction case. In its preliminary ruling against the Applicable Case of the Convention on the Prevention and Punishment of the Crime of Genocide in 1996, the International Court of Justice further affirmed that the nature of the obligations under the Convention were Erga Omnes,12 and it reiterated that point in 2015.13 In 2012, the International Court of Justice, declared that the obligations on “prohibiting torture or taking measures to prosecute” in the Convention of Prohibiting Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment benefit all the contracting states, so although Belgium was not the nationality of the injured nationals, it was still eligible for prosecution because of its status as a state party endowed with related interests.14 This seems to include “prohibiting torture” as an Erga Omnes Obligation.

B. Restrictions of the International Court of Justice on Erga Omnes human rights The International Court of Justice’s statement on Erga Omnes Obligations related to the “Barcelona Traction case” in 1970 was not the final judgment, nor are the “rules and principles relating to the fundamental human rights” under the protection of Erga Omnes Obligations, and the listed “freedom from slavery” and “freedom from racial discrimination” included in Erga Omnes Obligations by the Court. The connotations of Erga Omnes Obligations are therefore constantly developing and changing.15 However, after the concept of Erga Omnes Obligations was proposed in 1970, the International Court of Justice has been cautious about the statements and development of the concept. In several subsequent cases or advisory opinions, the Court repeatedly reviewed the classic statement in the “Barcelona Traction case” 1970 as the development of Erga Omnes Obligations, emphasizing that the key to Erga Omnes Obligations lies in the international community as a whole having interests in the realization of the protected rights, and the fulfillment of obligations being the focus of the international community. As mentioned above, in later practice, Erga Omnes Ob- ligations were explicitly recognized by the International Court of Justice to cover the right to self-determination and freedom from genocide of colonial people. With regard to obligations, such as the prohibition of torture, environmental protection, etc., the Court did not mention Erga Omnes, although it considered such protection to be of interest to all states parties. Therefore, we can see that the International Court of Justice is very cautious about the identification of Erga Omnes Obligations. After all, in the Draft on National Responsibility of the International Law Commission, the original provisions and specific enumeration of “state crimes” were much criticized and delet- ed from the final draft. In the study of which human rights are Erga Omnes in the field of Human Rights Act, it shall not be ignored that the International Court of Justice has

12. “ Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina vs. Yugoslavia, Preliminary Objections, Judgment,” ICJ Reports 595 (1996), para. 31. 13. “ Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Croatia vs. Ser- bia, Judgment”, ICJ Reports 3 (2015), paras 87-88. 14. “ Questions Relating to the Obligation to Prosecute or Extradite, Belgium vs. Senegal, Judgment”, ICJ Report 6 (2012), paras 68 -70. 15. Katariina Simonen, “International Conflicts and Protection of Fundamental Human Rights as an Obligation Erga Omnes,” 194. 2018] THE “ERGA OMNES” OF THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS 565 AND THE “COMPLEMENTARY PROTECTION” OF REFUGEES NOT PRESCRIBED BY THE UN CONVENTION RELATING TO THE STATUS OF REFUGEES emphasized “fundamental human rights”, rather than all.

C. The embodiment of the protection of fundamental human rights as an Erga Omnes Obligation in the specific rules of international law On the basis that the International Court of Justice limits Erga Omnes Obligations to the scope of fundamental human right”, the upholding of what human rights are Erga Omnes Obligations other than the “freedom from slavery” and “freedom from racial discrimination” enumerated by the International Court of Justice and the “right to self-determination ”and“ freedom from genocide later involved? In the initial text of the Draft on National Responsibility, the obligations violated by “international crimes” are crucial to realizing the fundamental interests of the international community, which is consistent with the International Court of Justice’s identification of the nature of Erga Omnes Obligations. Moreover, there are some rights protected by such obligations listed in the initial text. Thus, although the initial reference to “international crimes” in the Draft on National Responsibility was removed from the final text, the focus on obligations targeted by “international crimes” helps to understand the category of rights protected by Obligation Erga Omnes. In the Draft on National Responsibility, the destruction of international peace and security, the right to national self-determination, fundamental human rights and human environment, which are of great significance to human society, were initially considered as “international crimes”.16 The scope of “fundamental human rights” is required to be recognized in combination of specific legislation on international human rights. The human rights which are generally stipulated in international conventions on human rights to be “non- derogable” under any circumstances are undoubtedly the hard-core human rights. The International Convention on Civil Rights and Political Rights stipulates in Article 4 that in the event of a state of emergency where a country is threatened, the country may reduce its obligations in the convention, but the right to life as stipulated in Arti- cle 6, the right to freedom from torture in Article 7, the right to freedom from slavery and forced labor in Article 8, the right not to be punished for failure in implementation in Article 11 and the right that the punishment is not retroactive in Article 15, the right of personality in Article 16, and the right to religious freedom in Article 18 are non- derogable. These non-derogable human rights are also reflected in regional conventions on human rights. For example, Article 4 and Article 6 of the European Conven- tion on Human Rights stipulate that the right to freedom from slavery and forced labor is non-derogable, Article 7 stipulates that the criminal law is not retroactive, and the African Charter on Human Rights and National Rights has similar provisions. These rights, which are deemed “non-derogable” in various the human rights conventions worldwide, are the rights to life, freedom from torture, slavery and forced labor, and freedom from ex post facto criminal law, and all have the nature of “non-

16. International Law Commission (ILC), “Draft Articles on the Responsibility of States for Internationally Wrongful Acts”, Report of the ILC on the Work of its 53rd session of 2001, UN Doc A./56/1017. 566 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 561 derogable” in customary international law,17 which are regarded as fundamental human rights at the lowest level. Some scholars believe that such non-derogable fundamental human rights, which are unanimously recognized by the international community, such as the right to life, freedom from abuse and cruel, inhuman or degrading treatment and punishment, freedom from slavery and racial discrimination, and freedom from ex post facto criminal law, have a solid foundation, and that they are Erga Omnes nature is undoubted.18 II. Non-refoulement and Complementary Protection to Refugees not Prescribed by the UN CSR A. The embodiment of the principle of non-refoulement in the laws and regulations on International Human Rights Law The principle of non-refoulement, a core provision of the Convention in 1951, requires that any refugee identified by the convention shall not be deported or returned to territory where their life or freedom may be threatened.19 After the Convention in 1951, the principle of non-refoulement was stipulated and embodied in many international and regional conventions and declarations, such as Article 10 of the Convention on Refugee Seafarers 1957 and Article 2 of the Convention of the Organization of Af- rican Unity on Certain Issues of Refugees in Africa 1969. The Cartagena Declaration on Refugees in 1984 reaffirmed the landmark significance of the principle of non-refoulement in the protection rules on the international refugees as a whole. At present, the principle of non-refoulement is not confined to the Convention Relating to the Status of Refugees,20 but provides protection for “refugees” who are not defined under the Convention but who meet certain conditions. Indeed, the principle is applicable not only in the International Refugee Law based on the 1951 Convention, but also in quite a few international rules on human rights. It is also an important principle in International Humanitarian Law and an inseparable part of International Hu- man Rights Law.21 Article 13 of the Universal Declaration of Human Rights of 1948 already recognized the right of “other asylum for all under persecution”. Paragraph 1, Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that a person shall not be expelled, deported or ex- tradited if there is sufficient evidence that such a person would be subjected to torture in another country. The Convention on Children’s Rights also supports the implied non-refoulement obligations. Paragraph 8, Article 22 of the Convention on Human

17. “ The Report of the Meeting of Experts on Rights not Subject to Derogation during States of Emergency and Exceptional Circumstances ( May 17_19 )”, in Non-derogable Rights and States of Emergency, re-printed in Premont, Stenresen and Oseredczuk eds. (Brussel: Association for International Consultants on Human Rights, 1996), 39. 18. Gaja, “Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts,” in International Crimes of State, J. H. H. Weiler, A. Cassese and M. Spinedi ed. (Berlin: De Gruy- ter, 1989), 151 - 160. 19. Liang Shuying, “Treatment of Illegal Refugees,” Journal of the Pacific 7 (2007). 20. Li Mingqi, “Principle of ‘Non-refoulement’ in International Refugee Law,” Legal Research 4 (2013). 21. International Law Commission (ILC), Yearbook of the International Law Commission, vol. II (2009), Part two, UN DocA/CN.4/SER. A/2009/Add. 1 (Part 1), 171. 2018] THE “ERGA OMNES” OF THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS 567 AND THE “COMPLEMENTARY PROTECTION” OF REFUGEES NOT PRESCRIBED BY THE UN CONVENTION RELATING TO THE STATUS OF REFUGEES Rights of Inter-America makes it clear that a person whose life or liberty is threatened in a country due to race, nationality, status, religion or political opinion shall not be subject to deportation or repatriation. The United Nations Committee on the Rights of the Child states that the harm to children caused by lack of food and medical services cannot be remedied and thus children must not be returned to situations where irreparable harm or threat may exist.22 Although there is no well-defined stipulation on the principle of non-refoulement in the International Convention on Civil Rights and Political Rights, the United Nations Human Rights Council proposed that its Article 6 related to the protection of the right to life and Article 7 referring to freedom from torture or cruel, inhuman, degrading treatment imply the obligations that if there is sufficient evidence that irreparable harm would be made, no extradition, repatriation, or deportation would be allowed.23

B. The principle of non-refoulement in International Law avails the protection of fundamental human rights as Erga Omnes obligations Paragraph 1, Article 3 of the Convention Against Torture and Other Cruel, Inhu- man or Degrading Treatment or Punishment implies an idea of international law that a country has “sufficient cause” not to send anyone to somewhere that may deny human rights recognized by international law. In judging the existence of the “sufficient cause” referred to in Paragraph 1, Paragraph 2 requires that serious and persistent violations of human rights in a country shall be taken into account. In the “case of the obligation on extradition or prosecution”, the International Court of Justice noted that each state party had an interest in the realization of the right to “freedom from torture”. From the statement by the International Court of Justice on the right to “freedom from torture”, it can be seen that the state party’s obligation to the realization of this right is consistent with the Erga Omnes Obligation stated by International Court of Justice in the Barcelona Traction case, which is of concern to the international community as a whole. Therefore, the right to “freedom from torture” may be considered to be a fundamental human right with an Erga Omnes Obligation for its protection. The obligation of non-refoulement stipulated in Article 3 of the Convention Relating to the Status of Refugees guarantees the realization of this fundamental human right as an Erga Omnes Obligation. The foregoing interpretation that the Convention on the Rights of the Child and the International Convention on Civil Rights and Political Rights contain the obligation of non-refoulement is made by the corresponding human rights council or commission. Although the interpretation of the Convention by the UN Human Rights Council is not universally recognized as authoritative, and that by the Committee on

22. United Nations Committee on the Rights of the Child (CRC), General Common No. 6, Treatment of Unac- companied and Separated Children Outside their Country of Origin, UN Doc CRC/GC/2005/6, para. 27. 23. United Nations Committee on Civil and Political Rights (CCPR), General Comment No. 31, The Nature of the General Legal Obligation Imposed on States to the Covenant, UN.Doc CCPR/C/21/Rev. 1/Add. 1326 May 2004, accessed May 28, 2018. http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6Qk- G1dB2FPPRiCAqhKb7yhsjYoiCfMKoIRv2FVaVzRkMjTnjRO%2Bfud3cPVrcM9YR0iW6Txagp3f9kUF- pWoq%2FhZB2FTpKi2tPhZsbEJw%2FGeZRASjdFuuJQRnbJEaU hby31WiQPl2mLFDe6ZSwM- MvmQGVHA%3D%3D 568 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 561 the Rights of the Child is not legally binding, some countries have explicitly affirmed this principle in their domestic laws. For example, Canada’s Immigration and Refugee Protection Act stipulates that a person is “in need of protection” if his or her repatriation would result in the risk of being abused, life threatened or cruel and inhuman punishment,24 and the same protection as received by refugees shall be offered. In international human rights law, the principle of non-refoulement is mainly embodied in the fields of freedom from torture, the right to life, freedom from inhumane treatment, etc. These rights have been recognized in the practice of the International Court of Justice and are the fundamental human rights with Erga Omnes Obligations. In international humanitarian law, the embodiment of the principle of non-refoulement further proves that the principle is centered on fundamental human rights. The principle of non-refoulement, as an important part of international humanitarian law, and the principle takes the protection of fundamental human rights with Erga Omnes Obligations as the starting point. Although applicable to different situations, the international humanitarian law and the international human rights law are responsible for protecting human life, health and dignity. Although the former does not prescribe the combat methods and behaviors of combatants in armed conflicts as the latter does, both aim to protect human life, prohibit abuse or cruel treatment, for- bid discrimination and uphold the fundamental human rights.25 The Common Article 3 of the “Fourth Convention of Geneva 1949” must be observed in both international and non-international armed conflicts, which guarantees the core fundamental human rights. These rights include the prohibition of violence against life and person, of murder, mutilation, torture and cruel, inhuman and degrading treatment, of hostage-taking, and of conviction and execution without trial, and provide judicial guarantees for all detainees. The rights protected by Common Article 3 are consistent with the afore- mentioned widely recognized and non-derogable fundamental human rights and are the embodiment of human rights with Erga Omnes Obligation in international humanitarian law. For example, Article 45 of Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Convention of Geneva 1949) stipulates the principle of non-refoulement, which reflects the connection between the principle of non-refoulement and the fundamental human rights with Erga Omnes Obligation.

C. The “Complementary Protection” to refugees not prescribed by the UN CSR The obligation made by the Convention of International Human Rights Law to protect fundamental human rights rather than repatriate, extradite or deport promotes the application of the principle of non-refoulement beyond the scope of the 1951 Con- vention Relating to the Status of Refugees. The protection based on the principle of non-refoulement to the people not covered by the Convention Relating to the Status of Refugees or the 1967 Protocol is referred to as complementary protection or subsidi-

24. Canada Immigration and Refugee Protection Act, SC 2001, C57, Section 95 (1) ( b). 25. International Committee of Red Cross (ICRC), International Humanitarian Law and International Human Rights Law: Similarities and Differences, Advisory Service on International Humanitarian Law, 2003, accessed May 28, 2018. https : //www. icrc. org/en/download/file/1402/ihl-and-ihrl. pdf. 2018] THE “ERGA OMNES” OF THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS 569 AND THE “COMPLEMENTARY PROTECTION” OF REFUGEES NOT PRESCRIBED BY THE UN CONVENTION RELATING TO THE STATUS OF REFUGEES ary protection.26 The UN High Commissioner for Refugees has made it clear that “many people who are not covered by the 1951 Convention may also need international protection and such protection will be provided “complementarily” to the 1951 Con- vention”.27 “For people who do not qualify as refugees under the 1951 Convention but do need protection,” the UN High Commissioner for Refugees advises, “‘complementary’ protection can be provided.”28 In the past decade, complementary protection has received wide attention from foreign academia and has been adopted in some countries.29 Before the concept of complementary protection was proposed, some countries offered assistance to refugees not prescribed by the Convention Relating to the Status of Refugees in consideration of humanity, but in recent decades the new development of international human rights law and international refugee law has made such is not only out of voluntary discretion, but based on existing obligations in international law.30 The reason why complementary protection has the obligation to provide protection in international law is based on the application of the principle of non-refoulement.31 Therefore, the connotation of complementary protection shall be determined in accordance with the content of the principle of non-refoulement. By analyzing a series of conventions involving or containing the obligation of non-refoulement, it can be found that the provisions on the principle of non-refoulement in international human rights law are still limited to fundamental human rights, while the provisions on non-refoulement in International Humanitarian Law are more specific to the minimum protection of fundamental human rights. Therefore, the target and connotation of complementary protection should also start from the protection of fundamental human rights. III. Restrictions on “Complementary Protection”: An Analysis Based on the Relevant Practices of the European Court of Human Rights Complementary protection, based on the principle of non-refoulement in international law, integrates international refugee law, international immigration law and international human rights law. The principle of non-refoulement takes fundamental

26. There is no consensus on the definition of “complementary” protection currently. However, it is generally accepted by scholars that this protection is based on the principle of “non-refection” beyond the scope of the 1951 Convention. Katie Sykes, “Hunger without Frontiers: The Right to Food and State Obligation to Mi- grants”, 190. 27. United Nations High Commissioner for Refugees (UNHCR ), Note on International Protection, 12 July 2006, UN Doc AAC. 96/1024, accessed May 28, 2018. http: //www.refworld. org/docid/44c9cb212. html. 28. Ibid. 29. European Union: Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 on Mini- mum Standards for the Qualification and Status of Third County Nationals or Stateless Persons as Refugees or as PersonsWho Otherwise Need International Protection and the Content of the Protection Granted, 30 September 2004, OJ L. 304/12-304/ 23; 30.9.2004, 2004/83/EC, accessed May 28, 2018. http://www.refworld. org/docid/4157e75e4. html 30. Michelle Foster, “Non-Refoulement on the Basis of Socio-Economic Deprivation: The Scope of Comple- mentary Protection in International Human Rights Law,” New Zealand Law Review (2009): 260. 31. Jason Pobjoy, “Treating Like alike: The Principle of Non-Discrimination as a Tool to Mandate the Equal Treatment of Refugees and Beneficiaries of Complementary Protection”, Melbourne University Law Review 34 (2010): 188. 570 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 561 human rights, as being those with Erga Omnes Obligations, as the target of protection. As mentioned above, the International Court of Justice, as an important promoter of the emergence and development of Erga Omnes Obligations, is cautious about the expansion of the scope of fundamental human rights with Erga Omnes Obligations. Complementary protection should also be limited to the extent that fundamental human rights are threatened. However, for the economic rights and social rights not included in the fundamental human rights with Erga Omnes Obligations, whether the obligation of complementary protection also comes into being is a question that is worth paying attention to. For example, the question of whether a country should also provide complementary protection to people who leave their homeland due to that country’s low economic level, social instability or natural disasters is a key issue to be solved in academia and practice.

A. Whether complementary protection should be endowed to people who cross borders for economic or social reasons No matter whether conventional refugees or refugees not prescribed by the Con- vention Relating to the Status of Refugees, the obligation of protection is derived from international law. Especially for refugees not prescribed by the Convention, there are provisions on the principle of non-refoulement in international law. Some scholars believe that the refugees in the real sense are those people who have lost the protection of their own countries and are being persecuted by their own countries, so they need to be protected by international law. But “economic migrants” just tend to leave their countries of their own accord, hoping for the chance to enjoy a better life in other countries.32 So the traditional view is that people who cross borders for economic reasons should not have the same protection as conventional refugees33, and thus there is no obligation of complementary protection in international law to people who leave their country due to that country’s economic backwardness and social development. There are also scholars who hold that when applying the principle of non-refoulement to refugees not prescribed by the Convention Relating to the Status of Refugees in the field of international human rights law, the interests of national security and the concerns of individual human rights should be balanced and national discretion should be exercised34. It is not a question of yes or no. A number of factors need to be considered when determining the scope of complementary protection.

B. Discussion by the European Court of Human Rights on the target of complementary protection As for the complementary protection for the refugees not prescribed by Conven- tion Relating to the Status of Refugees, Europe is leading the way. Besides the above Directive on the Minimum Qualifications and Status of Nationals from a Third Coun-

32. Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuse from Deprivation (London: Cambridge University Press, 2007): 2 -21. 33. Katie Sykes, “Hunger without Frontiers: The Right to Food and State Obligation to Migrants”, 193. 34. Vijay M. Padmanabhan, “To Transfer or Not to Transfer: Identifying and Protecting Relevant Human Rights Interests in Non-refoulement,” Fordham Law Review 80 (2011): 73. 2018] THE “ERGA OMNES” OF THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS 571 AND THE “COMPLEMENTARY PROTECTION” OF REFUGEES NOT PRESCRIBED BY THE UN CONVENTION RELATING TO THE STATUS OF REFUGEES try or Stateless Applying to be Refugees or Seeking International Protection in 200435 and Directive on the Standards for the Nationals from a Third Country or Stateless to be Granted International Protection Status and the Unified Status and the Protec- tion to Refugees or People Endowed with Complementary Protection in 2011,36 the European Court of Human Rights has provided much protection for the refugees not prescribed by the Convention Relating to the Status of Refugees. These practices have been based on the Article 3 of the European Convention on Human Rights which stipulates that all have the freedom from torture and inhuman or degrading treatment, and there are no exceptions to or restrictions on the protection of these rights. 1. The traditional interpretation of Article 3 of the European Convention on Human Rights by the European Court of Human Rights In the practices of the European Court of Human Rights, the provision of Arti- cle 3 is also interpreted as that people who may face torture or inhuman or degrading treatment shall not be expelled or repatriated to states where such threats may be posed. The classic case that made this interpretation accepted was “Soering vs. The United Kingdom case” in 1989.37 The European Court of Human Rights pointed in the case that extraditing a German citizen to the United States, where he could be sentenced to death for murder, would be a violation of Article 3 of the European Convention on Human Rights. In a series of cases since then, the European Court of Human Rights has repeatedly stressed the Court’s interpretation of Article 3, such as the classic case “Chahal vs. The United Kingdom case”38. In that case, the Court held that Chahal, the head of the Sikh independence movement, could have been subjected to inhumane treatment and torture in Punjab if he had been repatriated to India, so the decision made by The United Kingdom’s department of homeland security to deport Chahal violated Article 3. 2. Analysis by the European Court of Human Rights combining Article 3 of the European Convention on Human Rights with economic and social rights In recent years, the European Court of Human Rights’ practice of Article 3 of the European Convention on Human Rights has gradually extended its provisions to the protection of economic, social and cultural rights. In the “D vs. The United Kingdom case”39 in 1997, considering that D was a terminally ill AIDS patient, the Court held that due to the severe shortage of medical facilities and conditions on the island of Saint Kitts, and D’s lack of relatives or friends on the island, if D was repatriated to

35. Jason Pobjoy, “Treating Like alike”, 188. 36. European Council on Refugees and Exiles, ECRE Information Note on the Directive 2011/95/EU of the Eu- ropean Parliament and of the Council of 13 December 2011 on Standards for the Qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 7 Octo- ber 2013, accessed May 28, 2018. http://www. refworld. org/do-cid/551922ae4. html 37. Soering v. The United Kingdom, Council of Europe: European Court of Human Rights, 1/1989/161/2177, July 1989. 38. Chahal v. The United Kingdom, Council of Europe: European Court of Human Rights, 70/1995/576/662, 15 November 1996. 39. D v. United Kingdom, Council of Europe: European Court of Human Rights, 146/1996/767/964, 2 May 1997. 572 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 561 that country at that time, he would spend his last days in pain and his dignity as a human being would not be guaranteed, and thus deporting D to the island of Saint Kitts would violate Article 3 of the European Convention on Human Rights.40 In particular, the Court pointed out in its judgment that the social problems in the case, such as the backward medical facilities on island of Saint Kitts, were not caused by the intention or negligence of the local government, but by the social hardship of the island itself, the lack of resources and the lack of infrastructure.41 In the MSS vs. Belgium and Greece case, MSS was a person awaiting confirmation as to whether or not asylum would be granted, and had to live on the streets without any means of support or shelter. He lived in such a poor situation for a few months, during which he was unable to get food, health guarantee, and shelter, all of which had proved that MSS got insulting treatment and his personality dignity failed to be respected, in violation of regulations on freedom from inhumane or insulting treatment in the Article 3 of European Con- vention on Human Rights.42 In the “Sufi and Elmi vs. The United Kingdom case”, the European Court of Hu- man Rights for the first time made it clear that when the basic needs of the immigrants themselves cannot be guaranteed, that is, when the food, sanitation, shelter, medical treatment or other social support for immigrants cannot be realized, the deporting country may have to assume the obligation of “subsidiary protection”.43 The Court once again stressed that there should be a distinction between a government’s unwillingness and negligence to provide protection to its nationals and a government’s inability to provide protection to its nationals for natural reasons or domestic conditions.44 In the latter situation, in which the government is powerless, European countries only undertake the obligation of “complementary protection” when extremely exceptional and urgent humanitarian problems arise.45 3. The principle of non-refoulement should be carefully considered when it relates to the protection of economic and social rights Although in the above cases of the European Court of Human Rights the term complementary protection was rarely explicitly mentioned, the core of the discussion in these cases was undoubtedly consistent with the theory of complementary protection” in essence, in the issue of providing protection to people who are not qualified in the provisions of the 1951 Convention. Therefore, when exploring the issues related to targets of complementary protection, the practice of the European Court of Human Rights should be taken for reference. The practice of the European Court of Human Rights in extending the obligation of complementary protection in international law to the field of economic and social

40. Ibid., para. 40. 41. Ibid. 42. MSS v. Belgium and Greece, Council of Europe: European Court of Human Rights, 21 January 2011, 30696/09, para. 263. 43. Sufi and Elmi v. United Kingdom, Council of Europe: European Court of Human Rights, 28 June 2011, 8319/07 and 11449/07, paras 279 -283. 44. Ibid., para. 280 - 282. 45. Ibid., para. 281. 2018] THE “ERGA OMNES” OF THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS 573 AND THE “COMPLEMENTARY PROTECTION” OF REFUGEES NOT PRESCRIBED BY THE UN CONVENTION RELATING TO THE STATUS OF REFUGEES rights should be treated with prudence. Moreover, the European Court of Human Rights itself should be cautious in dealing with the issue, especially when the damage to economic and social rights is not intentional but caused by external causes such as natural disasters, a country shall only assume the obligation of complementary protection in quite exceptional and urgent situations. After all, the current principle of non-refoulement clearly stipulated in international law is limited to fundamental human rights with Erga Omnes Obligations, and only the International Convention on the Civil Rights and Political Rights in Article 2 stipulates that countries have the obligation to provide protection of the rights in Convention to all within its territory or jurisdiction, while the International Convention of Economic, Social and Cultural Rights has no similar rules. Therefore, whether people who leave their hometown due to economic backwardness and social underdevelopment in the hope of a better life should be protected in the sense of law is a question that should be carefully judged based on individual cases. IV. Conclusion From the above analysis, it can be seen that the complementary protection, as an extension of the principle of non-refoulement in the 1951 Convention Relating to the Status of Refugees, lacks a clear definition as an obligation in international law, being mainly based on the provisions or interpretations concerning non-refoulement in some international or regional conventions on human rights. The principle of non-refoulement in international human rights law mainly exists in the field of fundamental human rights, such as freedom from torture, right to life, freedom from inhuman or degrading treatment. To some extent, upholding these fundamental human rights are characterized as Erga Omnes Obligations, and the protection and realization are related to every country in the international community, which, in return, have the obligation to ensure their realization. If complementary protection is an obligation under the international law, a country is therefore required to realize the non-refoulement and to guarantee the minimum rights for specific immigrants in its domain. Therefore, a sovereign state shall have to balance its national security interests with individual human rights and have the discretion to judge whether the principle of non-refoulement is applicable.46 The International Court of Justice has been cautious about the development of the concept of Erga Omnes Obligations after proposing it in the Barcelona Traction case of 1970. For decades, the International Court of Justice has explicitly affirmed Erga Omnes rights in terms of the right of colonial people to self-determination and freedom from genocide, and recognized the overall interests of the international community in terms of freedom from torture and environmental protection, the right to a healthy environment being indirectly recognized as being Erga Omnes. For other rights, such as civil rights and political rights, the Court didn’t include the protection of these rights as Erga Omnes Obligations, as economic and social rights are beyond the Court’s consideration. If the principle of non-refoulement is applied to the fun-

46. Ibid. 574 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 561 damental human rights with a certain degree of Erga Omnes, its scope of application needs to be limited; correspondingly. The subject under complementary protection should be limited to the scope of fundamental human rights. For example, the complementary protection proposed by the European Court of Human Rights in the field of economic rights and social rights should be viewed with caution. Just as the Europe- an Court of Human Rights combined it with the right to human dignity and freedom from degrading treatment, and limited it to urgent humanitarian issues, it should be combined with fundamental human rights that are Erga Omnes Obligations when deciding whether to give complementary protection if the subjects economic and social rights are threatened. (Translated by XU Chao) THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

Experiences and Achievements in the Development of Human Rights in China in the Past 40 Years of Reform and Opening-up — A Summary of Viewpoints on the Seminar on Reform and Opening-up and the Progress of the Development of Human Rights in China

WANG Xigen* & CHEN Yan**

Abstract: Jointly held by the China Society for Human Rights Studies and the publicity department of the Hubei Provincial Com- mittee of the Communist Party of China and organized by Institute for Human Rights and Law School of Wuhan University, A seminar on Reform and Opening-up and the Progress of the Development of Human Rights in China was held on July 18, 2018 in Wuhan. Over 100 distinguished scholars participated and discussed topics including “The path for human rights development”, “Reform and Opening-up and the theoretical innovation of human rights in China”, “Reform and Opening-up and the achievements of human rights in China”, and “Reform and Opening-up and the development of global human rights cause”. The seminar summarized China’s human rights achievements over the course of 40 years of Reform and Opening-up on multiple levels and from multiple perspectives and deepened practical and theoretical understandings about the development and progress of human rights in China. Keywords: Reform and Opening-up  human rights  Chinese characteristics

Jointly held by the China Society for Human Rights Studies and the Publicity Department of the Hubei Provincial Committee of the Communist Party of China and organized by Institute for Human Rights and Law School of Wuhan University, the seminar on Reform and Opening-up and the Progress of the Development of Human

* WANG Xigen ( 汪习根 ), Executive Director of the Human Rights Institute of Wuhan University; Yangtze river Scholars Distinguished Professor; United Nations expert on the right to development; China “2011 Pro- gram” Judicial Collaborative Innovation Center; Ph.D. supervisor. ** CHEN Yan ( 陈艳 ), Ph.D. Candidate 2017, School of Law, Wuhan University. We would like to express our gratitude to Professor Liao Yi, Lecturer He Miao of Wuhan University, and Ph.D. students Chen Xiaoxiao, Zhu Chengbin, Li Huimin, Run Lidong, Peng Xia, Li Linfang, and Zhang Yongjun for their hard work in collecting and arranging papers and summarizing views for this seminar, and to Professor Teng Rui of Huazhong University of Science and Technology for collecting and arranging all papers. 576 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 575

Rights in China was held in Wuhan, on the occasion of the 40th anniversary of the formulation of reform and opening-up. Guided by the thought on socialism with Chinese characteristics for a new era, the seminar adhered to the principle of combining the universality of human rights with China’s national conditions, revealed the fundamental status of respecting and protecting human rights in China, and summarized the process of formation and rich connotations of China’s human rights discourse system. It was a comprehensive summary of the positive experience of the development of Chi- na’s human rights cause over the past 40 years of reform and opening-up, a chance to demonstrate and share China’s human rights model that has achieved remarkable results through practice, and explore ways to further China’s human rights development in the future. Over 100 representatives, including leaders of relevant departments of the Party and government organs and the China Society for Human Rights Studies, as well as experts and scholars of human rights studies in universities and research institutes, attended the seminar. More than 10 media were present to cover the event. I. viewpoints of Keynote Speeches Xu Xianming, Member of the Standing Committee of the National People’s Con- gress, Deputy Chairman of the NPC Supervisory and Judicial Committee, and Vice President of the China Society for Human Rights Studies, Li Junru, Vice President of the China Society for Human Rights Studies and former Vice President of the Party School of the CPC Central Committee, Han Jin, Party Secretary of Wuhan University, and Li Long, Chairman of Human Rights Institute, Wuhan University, Senior Profes- sor of humanities and social sciences, all delivered speeches. Xu Xianming mentioned in his speech that the human rights experience gained and the road taken by China over the past 40 years of reform and opening-up should be summarized. From human rights theories, achievements of the human rights system, achievements of China’s human rights practice, China’s participation in international human rights exchange, and China’s contributions to the human rights cause of humankind, Xu summarized China’s achievements in human rights in the past 40 years of reform and opening up, and pointed out that these historic achievements proved the fact that China had embarked on a human rights development path with Chinese characteristics. The reason for the success of this path lay in the CPC’s leadership, the correct guidance of human rights theories and thoughts, our adherence to the socialist system with Chinese characteristics, and the approach of being based on China’s reality. These are the core elements of the human rights development path with Chinese characteristics. In his speech, Li Junru shared his thoughts and understanding on the progress of China’s human rights cause in the past 40 years of reform and opening-up. He pointed out that it was an extremely important experience in China’s human rights development to promote the sound development of China’s human rights cause by correctly understanding and grasping the main contradictions of socialism in China as well as the characteristics of their evolution. The discussion about the main contradictions of Chinese society in the report of the 19th CPC National Congress has reflected the two development stages of China’s human rights cause. At the first stage, China’s 2018] EXPERIENCES AND ACHIEVEMENTS IN THE DEVELOPMENT OF 577 HUMAN RIGHTS IN CHINA IN THE PAST 40 YEARS OF REFORM AND OPENING-UP human rights cause was in the process of solving the main contradictions between the people’s growing material and cultural needs and backward social production. At the second stage, China’s human rights cause was in the process of addressing the main contradictions between the people’s growing need for a better life and unbalanced and inadequate development. The main contradictions of China in the new era had been in front of us. Human rights theorists should face up to the main contradictions of the Chinese society in the new era, take solving the problem of unbalanced and inadequate development as the major goal, and make new contributions to opening up the new situation of China’s human rights cause. Professor Han Jin pointed out in his speech that by summarizing the practice and experience of the development and progress of China’s human rights cause during 40 years of the launch of the reform and opening-up, we could further deepen the study of China’s human rights theories, better tell the stories about human rights issues in China, interpret China’s human rights solutions, and protect the human rights of the Chinese people at a higher level. Professor Li Long said that the people-centered approach was a scientific posi- tioning as well as the guiding principle of China’s human rights building. The concept of people-centered development boasted extensive local resources. In the pre-Qin Dynasty period, Guan Zhong, the forerunner of Legalism, put forward the concept of “people-oriented governance.” The Taoists set forth the idea of “governing by inac- tion.” And the Mohists proposed “love for everyone” and “mutual help for common good”. It was precisely because of these concepts of people-oriented governance, respecting and protecting people that China had maintained its unity and prosperity for a long time. It was also an important reason why the Chinese civilization had lasted for about 5,000. We should make full use of the ancient Chinese concepts of governance and propose suggestions for human rights building in contemporary China with the help of these rich and profound local resources. II. Reform and Opening-up and China’s Path of Human Rights De- velopment Since the launch of reform and opening-up 40 years ago, China has embarked on its own path of human rights development through ideological emancipation and institutional innovation. In this regard, the participating experts and scholars had in-depth discussions on the development path of China’s human rights and the practice of the road to guarantee the rule of law for China’s human rights.

A. The development path of China’s human rights Chang Jian, Director of the Human Rights Research Center and a Professor at the Zhou Enlai School of Government Management of Nankai University, believes that reform and opening-up has provided an endogenous driving force for the development of China’s human rights cause, which was mainly reflected in the following aspects: the market economy system promoted the equal protection of individual freedom and rights; the widening gap between the rich and the poor required the protection of individuals’ economic, social and cultural rights and the rights of the weak; the pattern 578 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 575 of pluralistic interests demanded protection of citizens’ political rights to participate in public life on an equal footing; the appeal for rights relief promoted rule of law for human rights protection; and opening-up brought domestic protection of human rights in line with international norms. Professor Li Yunlong from the Institute of International Strategy of the Party School of the CPC Central Committee, analyzed the characteristics of China’s path of human rights development. He thought that China’s path of human rights development had several characteristics. For example, the right to subsistence and the right to development should be first guaranteed on the basis of economic development; the economic, social and cultural rights and civil and political rights had been promoted in a coordinated way; individual freedom and civil involvement had been expanded on the basis of maintaining social harmony and stability; human rights development had been advanced from top to bottom through top-level design; rapid development of human rights had been achieved in a sustained and step-by-step manner; breakthroughs had been made in major areas while human rights had been advanced in an all-round fashion; and international cooperation on human rights had been carried out on the premise of safeguarding national sovereignty. Professor Xian Kailin, Executive Director of the Human Rights Research and Education Center at Northeast University of Finance and Economics, put forward two conclusions. First, the inclusive development of human rights stemmed from the ideological emancipation of reform and opening-up. Reform and opening up was the source of life and a powerful ideological force for advancing the human rights cause of socialism with Chinese characteristics. Second, Xi Jinping’s new concept of jointly building a community with a shared future for human beings was the latest theoretical achievement of the Chinese version of Marxism, which upgraded the inclusive path of opening-up in the field of human rights. Professor Li Erping, Director of the Human Rights Research Center of Kunming University of Science and Technology, summarized the five characteristics of China’s human rights development since the start of reform and opening-up. First, advocating and practicing the principle that the right to subsistence is the basic human right. Sec- ond, resolutely opposing the politicization of human rights by Western governments. Third, upholding the right to development as the primary human right. Fourth, stress- ing the combination of the particularity and universality of human rights. Fifth, building a community with a shared future for human beings and promoting global human rights governance. He believed that since the introduction of reform and opening-up policies, China’s human rights protection and economic development was mutually complementary and reinforcing. Economic growth had promoted the development and progress of the human rights cause, while human rights protection also made up for the shortcomings of the market economy.1 Professor Chen Youwu, Deputy Director of the Human Rights Institute of Guangzhou University, made an incisive summary of the historical development of

1. Li Erping, “Positive Interaction between Economic Development and Human Rights Protection in the Process of Reform and Opening up,” Guangming Daily, August 4, 2018. 2018] EXPERIENCES AND ACHIEVEMENTS IN THE DEVELOPMENT OF 579 HUMAN RIGHTS IN CHINA IN THE PAST 40 YEARS OF REFORM AND OPENING-UP the relationship between the rule of law and human rights since the launch of reform and opening-up. He concluded that the human rights and the guarantee of rule of law in contemporary China had mainly experienced three stages: the adjustment of rule of law and human rights, the combination of rule of law and human rights, and the integration of rule of law and human rights. Based on this history of development, he concluded the relationship between rule of law and human rights. First, the law is an important link in the protection of human rights. Second, the protection of human rights is the fundamental purpose of the building of rule of law. Third, human rights are the bottom line for building a country under the rule of law, and it is impossible to build a country under the rule of law without the protection of human rights. The ultimate goal of rule of law and human rights is to integrate, together with democracy, into the socialist rule of law system with Chinese characteristics.2 Zhang Demiao, Professor of Zhongnan University of Economics and Law, criticized the Rule of Law Index of the World Justice Project for failing to take into account the essence and characteristics of China’s human rights situation, China’s national conditions and the actual needs of Chinese society. He argued that the Rule of Law Index should accurately reflect the reform and adjustment of China’s rule of law building, and must understand and grasp the value and concept that existed and played a sustained role in the ecological environment of China’s rule of law. Professor Zhang demonstrated the necessary value dimensions for the evaluation of rule of law. He analyzed the establishment of standards of human rights protection index from six dimensions: 1. Citizens’ individual rights should be protected from illegal infringement; 2. Citizens’ political rights and freedom should be respected; 3. Citizens’ social and economic rights should be guaranteed; 4. Citizens’ cultural rights should be effectively realized; 5. The rights of special groups should be safeguarded; and 6. The improvement of the quality and effectiveness of legal aid.

B. The practice of the road to guarantee the rule of law for China’s human rights Luo Huanxing, Deputy Division Director of the Research Office of the Legisla- tive Work Committee of the Standing Committee of the National People’s Congress, said that the adoption of the amendment to the Constitution at the first session of the 13th National People’s Congress strongly promoted and strengthened China’s socialist rule of law and human rights protection. He summarized and analyzed the progress of legislation on human rights protection in China from such aspects as protecting right to subsistence and the right to development of citizens, protecting the citizens’ economic, social and cultural rights, strengthening the institutional guarantee for people to be masters of the country, improving judicial protection of human rights, and improving the legal system to protect the rights and interests of women, minors, the elderly and the disabled. Li Lei, Associate Professor of the School of Law of Huazhong University of Sci- ence and Technology, classified and summarized the progress of China’s human rights

2. Chen Youwu and Li Buyun, “The Historical Development of the Relationship Between the Rule of Law and Human Rights Since the Reform and Opening Up,” Modern Law Science 2 (2015). 580 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 575 legislation since the start of reform and opening-up, and divided the process into three stages of evolution: ground-laying legislation, consolidation legislation and advanced legislation. She pointed out that the details of China’s human rights changes consti- tuted a history of legislative amendment and legislative creation. The development of human rights in China has by no means reached the perfect tense, but it is in the present continuous tense. There had never been a legislative system in the world that was born to exhaust all types of human rights. Human rights legislation would always be “on the road.” Professor Zhao Shukun, Assistant Director of the Human Rights Institute of Southwest University of Political Science and Law, analyzed the basic situation of the right to relief of claimants of criminal justice in China based on 346 judgment documents. She proposed that criminal justice compensation in the future should ensure that lawyers can fully participate in the criminal justice compensation process. We should improve the system of compensation for emotional distress, and continue to implement and innovate the system of consultation and reconciliation. In order to further improve the rights relief of the claimants of criminal justice compensation, the legal awareness and basic legal ability of citizens should be constantly improved. Professor Xiang Yan, Deputy Director of the Human Rights Institute of Wuhan University, made a profound analysis on the legal aid system as an important practice of human rights protection. He reviewed the history of China’s legal aid system, summarized the achievements and experience of China, and pointed out the main problems of the existing legal aid system. In his opinion, the key measures to improve China’s legal aid system are introducing a law on legal aid, providing diversified legal aid service products, building a multi-channel financing system, improving the quality supervision mechanism for legal aid cases, and completing the concept transformation of China’s legal aid system. Hu Zhenyi, Division Director of the Internet Publicity Department of the Legal Publicity Department of the Ministry of Justice, summarized and analyzed the legal publicity and education, as well as the development of the human rights cause. He believed that publicity and education to raise awareness of the Constitution would make the government’s concept of respecting and protecting human rights more popular. The concept of human rights should be widely popularized in the whole society by combining human rights education with the popularization of the law among the whole people. We should make positive contributions to the development and progress of China’s human rights cause by innovating ways and methods of publicity and education on the rule of law, and focusing on improving the effectiveness of publicity and education on human rights. III. Reform and Opening-up and China’s Innovations on Human Rights Theories China’s concept of human rights has a long history. Since the start of reform and opening-up, China’s human rights theories have witnessed innovative breakthroughs and development. Regarding the reform and opening-up and China’s innovation on 2018] EXPERIENCES AND ACHIEVEMENTS IN THE DEVELOPMENT OF 581 HUMAN RIGHTS IN CHINA IN THE PAST 40 YEARS OF REFORM AND OPENING-UP human rights theories, experts and scholars expressed their views. Professor Fu Zitang, President of Southwest University of Political Science and Law and Vice President of China Society of Human Rights Studies, analyzed the equality issues in the theoretical studies of human rights over the past 40 years of reform and opening-up, including such ideas as “everyone is equal before the law” and “market economy and legal equality.” In his opinion, in 1978, the academic cir- cle broke through the forbidden zone of theoretical studies with the idea “everyone is equal before the law,” and raised a great discussion on some major legal issues including legal equality. Since reform and opening-up was fist initiated 40 years ago, the relevant studies had developed from the ideological disputes deeply influenced by class discourse, to the abstract theoretical research with weaker influence of class discourse, and to the practice turn that became more technical and specific – in this process, “change” seemed to be the basic track of the research on legal equality. However, in this changing situation, something remained unchanged. The consistent practice had been the studies on legislative equality that lasted for 40 years. The consistency was better demonstrated by the unchanged logic that theoretical studies should echo social development and the changing times. Professor Ye Chuanxing from the Law School of Renmin University of China analyzed the theoretical innovation of human rights in China from the perspective of knowledge sociology. In his opinion, since the launch of reform and opening-up, the theoretical innovation of human rights had four general characteristics: practice based on reform and opening-up, co-use and coexistence of multidisciplinary methods and theoretical resources, coexistence of multiple theoretical narration methods, and inter- weaving of theory, politics and technology. The fundamental logic of theoretical innovation regarding human rights was the interaction between theory and practice. It was the great practice of reform and opening-up that promoted theoretical innovation. In the context of interaction between theory and practice, there were three specific logic clues of human rights innovation. First, the interaction between governmental and non-governmental personnel. Two kinds of human rights discourses interested and learned from each other. Second, the internal and external interaction. Through the integration of Chinese and foreign factors, human rights theory gradually witnessed more and more innovations in the interaction between domestic and international situations. Third, the interaction between ideology and technology. Professor Zhang Yonghe, Executive Director of the Human Rights Institute of Southwest University of Political Science and Law proposed that “a better life” was the fourth-generation appeal for human rights. In his view, in the past 40 years and more, the world economy had grown by more than three times. Globalization had promoted the world’s economic, social and cultural progress, benefiting billions of people around the world. But at the same time, the turbulent international situation also posed challenges to human rights development worldwide. Therefore, the right of every member of the international community to enjoy “a better life” had become the inevitable demand of everyone. If the contents of the former three generations of human rights had been recognized by the documents of UN Charter, Universal Decla- 582 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 575 ration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Declaration of Right to Development, then, among the three generations of human rights appeals, in addition to the specific contents of the rights, the United Nations also recognized the right to development, which became a basic right as an approach to achieve other rights. However, the acquisition of the right to development must have its own target, and the target should be “a better life.” Therefore, the right to “a better life” has become a realistic human right. It refers not only to economic, social and cultural rights, but also to civil and political rights. It included not only the material “hard demand,” but also the non-material and institutional “soft demand” of democracy, rule of law, fairness and justice. Professor Li Zhongxia, Deputy Dean of the Law School of Shandong University, made an investigation on the study of Constitution in China after the reform and opening-up. In his opinion, the 40th anniversary of reform and opening-up would become a new starting point for the comparative study of Constitution. The trend of localiza- tion would be more obvious in the study of Constitution in the future. But this did not mean that the comparative study of the Constitution had lost its significance; on the contrary, this put forward higher requirements for comparative study. First, comparative study was still necessary. Second, we should realize what problems can be used for reference, and what cannot be used for reference. Third, the comparative study of the Constitution should not stay at the transplantation of superficial features, but needed to go deep into the history, social background and cultural conditions of the corresponding countries, so as to find the decisive basis for China’s Constitution. Fi- nally, the comparative study of the Constitution should also focus on the comparison of methodology. Tu Shaobin, Associate Professor at the Law School of South-Central University for Nationalities, suggested that economic analysis should be used to specify and implement the Marxist concept of human rights. He pointed out that a common human rights discourse was a very important dimension for China, which had entered a new era of reform and opening-up and proposes building a community with a shared future with the rest of the world. He believes that the design of the human rights system and the realization of human rights goals are faced with different options. Since economics essentially seeks to maximize selection efficiency of human behavior under the constraint of limited resources, the nature of human rights system design and the realization of human rights goals must also be economic behavior. The most fundamental methodology of Marxism is to seek truth from facts. In economic terms, this methodology means to build different models according to different variables. The American economist Gray S. Becker’s economic analysis framework had technical importance and value neutrality. Marxism and the economic analysis logic for human rights were commensurable. Western liberal methodology and system design for human rights could not stand up to the scrutiny of economic analysis, nor could they stand up to the test of empirical logic. Economic analysis could build a more commensurable and unified methodology for China’s human rights theory-building, help strengthen the discourse and competitiveness of China’s human rights programs, and serve China’s 2018] EXPERIENCES AND ACHIEVEMENTS IN THE DEVELOPMENT OF 583 HUMAN RIGHTS IN CHINA IN THE PAST 40 YEARS OF REFORM AND OPENING-UP solution of a community with a shared future for human beings. IV. Reform and Opening-up and China’s Achievements in Human Rights Practice Since the beginning of reform and opening-up, the Chinese people have developed from being poor to having enough to eat and wear, and to lead a moderately prosperous life in general and in all respects. The Chinese people are entering a new era of human rights featured by the pursuit of a better life. Remarkable achievements have been made in the human rights cause of China. In this regard, the participating experts and scholars made full discussions on the experience and achievements of China’s human rights development, the protection of human rights for special groups, and the achievements of practice in various fields of human rights.

A. Experience and achievements Wang Xigen, Executive Director of the Human Rights Institute of Wuhan Univer- sity, Yangtze river scholars Distinguished Professor of the Ministry of Education, and UN expert on the right to development, said that China had made great achievements in human rights over the past 40 years of reform and opening-up, which are mainly reflected in the following aspects: China has explored and gradually formed a path for the development of human rights under socialism with Chinese characteristics. China has been the first country in the world to put forward the innovative assertion that the rights to subsistence and the right to development are the primary basic human rights. Great innovations have been made in the scientific meaning, basic composition, internal logic, theoretical basis, practical strategy and operational mode of the rights to subsistence and the right to development, and a socialist theoretical system of human rights with Chinese characteristics had been gradually formed. China has created a systematic and complete system of human rights protection with Chinese characteristics and made its own contributions to the related cooperation and development of human rights in the world. China’s human rights cause has made rapid progress in the past 40 years, and the most basic experience was that under the leadership of the Communist Party of China, the people are masters of the country. Based on its national conditions, China has carried out reform and opening-up, and successfully blazed a path for the development of human rights under socialism with Chinese characteristics. Through the great practice of building a moderately prosperous society in all respects and realizing the Two Centenary Goals, China’s human rights protection has entered a new era and will surely enter a new realm and reach a new height. Yao Kun, Assistant Director and Associate Researcher at the Institute of World Politics of the China Institute of Modern International Relations, summarized the concepts and practice of the right to development of China. She believes that the right to development was China’s major contribution to the international human rights theory and system. As the global leader in sustainable development, China has set a good example for the world with its practice in the field. In the future, China should continue to commit to eliminating poverty and improving people’s livelihoods, further emphasize the right to development, call for strengthening the special mechanism for the 584 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 575 right to development at the international level, and attach importance to summarizing and sharing its experiences regarding the right to development. Based on the empirical analysis of sociology, Associate Professor Gui Xiao- wei of the Sociology Department of Wuhan University demonstrated in great detail the protection and implementation of citizens’ rights to subsistence and the right to development, economic, social and cultural rights, civil and political rights, and the rights of special groups in China. Full and detailed data confirmed the miracle of the development of China’s human rights cause since the reform and opening-up. He said that at the end of 1978, a new set of strategic plans for economic and political reform were officially announced and implemented, and China embarked on a new road of development and a new journey of rapid development of human rights construction and constant improvement of human rights protection. The road of China’s reform and opening-up was the road of human rights building.

B. Human rights protection on special groups Tang Yong, Associate Professor at the Law School of Zhejiang University of Fi- nance and Economics, discussed the achievements and prospects of the practice of the right to development of ethnic minorities. He analyzed the legal guarantee of the right to development of ethnic minorities and the achievements made in the practice of the rights to economic development, political development, social development, and cultural development since the reform and opening-up began. He said that in order to realize the right to development for ethnic minorities in the new era, progress should be made in implementing the strategy of coordinated regional development, strengthening the building of deliberative democracy, completing the task of targeted poverty alleviation, improving the system of public cultural services, and accelerating the construction of an ecological civilization system. Qian Yewei, Consultant in the Law and Regulation Office of the Rights and In- terests Department of the All-China Women’s Federation, reviewed and summarized the legislation and practice of anti-domestic violence in China in combination with the work of the All-China Women’s Federation. She pointed out that fighting against domestic violence was an inevitable requirement for respecting and protecting human rights, and promoting family harmony and social progress. The enactment of the An- ti-Domestic Violence Law at the end of 2015 complied with this need, demonstrated the CPC and the government’s firm position and consistent stance of respecting and protecting human rights and opposing domestic violence, and provided a strong legal basis for safeguarding the legitimate rights and interests of victims and preventing and stopping domestic violence. Yao Di, Staff Member from the International Department of the China Disabled Persons’ Federation, summed up the human rights practice regarding the disabled in China. She pointed out that for the cause of the disabled in China, the government paid attention to combining human rights protection with social development. By developing undertakings for the disabled and providing equal public services for the disabled, China had ensured that the disabled actually enjoyed a wide range of rights and promoted their equal sharing of the fruits of economic and social development. 2018] EXPERIENCES AND ACHIEVEMENTS IN THE DEVELOPMENT OF 585 HUMAN RIGHTS IN CHINA IN THE PAST 40 YEARS OF REFORM AND OPENING-UP In terms of international cooperation, China had turned from a follower, side-by-side runner to a leader. China had built up a network of foreign exchanges that took the United Nations and related agencies, major neighboring countries and major international organizations for the disabled as the core, and important international conferences and regional cooperation as the platform. China’s 85 million disabled people’s human rights had made significant progress, which had won the affirmation of the international community.

C. Achievements in various fields of human rights Mi Feng, Deputy Director of the Publicity Department of the National Health Commission, made a special discussion on the realization of universal health care coverage under socialism with Chinese characteristics regarding people’s right to health. He pointed out that the universal health care coverage system of socialism with Chinese characteristics has a solid institutional foundation and strong institutional superiority. For better implementation of universal health care coverage, we need to promote the transition from a “disease treatment-centered approach” to “people’s health-centered approach.” We also needed to expand the borders of maintaining the health of the people from the traditional disease prevention and control to ecological environment protection, sports and fitness, occupational safety, accident harm, food and drug safety, and many other fields, and integrate “health” into all our policies. Professor Zhu Liyu, Executive Director of Human Rights Research Center of Renmin University of China, and Consultant of China Society for Human Rights Studies combined legislative planning with targeted poverty alleviation. He thought that the great achievements China had made in poverty alleviation could not live without its national plans for economic and social development that it had long insisted in making and implementation, which had been regarded as an important way to solve the problem of poverty. The 13th Five-Year Plan (2016-2020) had completed the transition from the “policy preference” in the 12th Five-Year Plan (2011-2015) period to the “combination of policy preference with targeted poverty alleviation.” The newly added provisions on legislative planning in the Legislative Law were of great legal significance for ensuring poverty alleviation via legal means and for better implementation of targeted poverty alleviation. Professor Yang Guang, former Party Secretary of Dongbei University of Finance and Economics and Consultant of China Society for Human Rights Studies, made a profound analysis on rehabilitation and end-of-life care, both very practical issues in the development of human rights. He said that rehabilitation and end-of-life issues were practical issues in the development of human rights, which were groundbreak- ing and challenging. There were many human rights issues between rehabilitation and end-of-life care, which involved new ideological and practical issues like human nature, personality, and dignity. They urgently needed responding. The discussion and answers to these questions were complicated and difficult, but they were of great significance to the sound development of the human rights cause of socialism with Chinese characteristics. Professor Ji Yaping, Dean of the Administrative Law Department of Northwest 586 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 575

University of Politics and Law discussed the public participation in administrative decision-making. He said that in recent years, China’s public participation in administrative decision-making had made some progress, but there were still many problems. For example, the participants were not clear; the right to decision-making motions was absent; the scope of participation was not clear; the ways of participation were relatively simple; and the public opinion was not fully respected. Public participation in administrative decision-making needed to be legalized. Therefore, we should exam- ine the gain and loss of public participation in administrative decision-making in Chi- na and build a mechanism of public participation in administrative decision-making as soon as possible.3 V. Reform and Opening-up and the Development of Global Human Rights Cause Over the past 40 years of reform and opening-up, China has taken an active part in international cooperation and exchanges on human rights. China’s foreign development assistance has grown in scale and level, and has won the praise of many other developing countries, as well as the United Nations. Important contributions have been made to the development of human rights in the world. In this regard, the participating experts and scholars carried out in-depth discussions from the perspectives of progress in practice and theoretical expression.

A. Progress in practice Centering on the reform of global human rights governance, Chen Shiqiu, member of the United Nations Committee on Economic, Social and Cultural Rights and Consultant of the China Society for Human Rights Studies, first gave a summary review of the serious distortion of the global human rights governance concepts and practices over the past 70 years, and summarized the positive aspects of reform. He criticized the one-sided, narrow and selfish human rights concepts and double standards on human rights of the West, recognized the importance of rectifying and bal- ancing human rights concepts, as well as the importance of establishing human rights committees and reforming the human rights convention mechanism for global human rights governance. China’s proposal of “building a community with a shared future for human beings” had entered the international human rights theory system. The ideas of “development for human rights,” “health for human rights,” “dialogue for human rights,” “peace for human rights” and “cooperation for human rights” advocated by China had also been included in the relevant resolutions of the UN Human Rights Council. The international appeal of China’s human rights development path and successful practices was growing, and China was beginning to play a leading role in global human rights governance. China’s stance philosophy, solution and experience in human rights development would make a major contribution to global human rights governance. Wang Ying, First Secretary of the International Department of the Ministry of

3. Ji Yaping, “Studies on Public Participation in Administrative Decision-making Procedures,” Zhejiang Aca- demic Journal 3 (2012). 2018] EXPERIENCES AND ACHIEVEMENTS IN THE DEVELOPMENT OF 587 HUMAN RIGHTS IN CHINA IN THE PAST 40 YEARS OF REFORM AND OPENING-UP Foreign Affairs, summarized China’s participation in international human rights cooperation since the start of reform and opening-up 40 years ago. She pointed out that we must see that the situation of the international competition on human rights had not changed fundamentally. The North was strong and offensive, while the South was still weak and defensive. China had a structural problem with the Western countries on the issue of human rights. The competition between the two sides was the competition of paths, systems and values. With the growing strength of China, this structural problem will only become more prominent. Based on 40 years of reform, opening-up and development, China had gradually become stronger and more proactive in its competition against the Western in human rights. We must remain resolute and firmly believe that China’s human rights development path was in the best interests of Chi- na’s national conditions and the Chinese people. We needed to continue to build major diplomatic concepts and put them into practice in the United Nations and other organizations, promote our successful experience in poverty reduction and the disabled, and gradually change the situation in which the United States and other Western countries had a monopoly on human rights and dominated the international human rights agenda. At the same time, we should do a good job in human rights work at home to meet people’s growing needs for a better life and enhance their sense of gain. Fan Guifen, Division Director of the Office for Management of International Exchange and Coordination of Chinese Social Organizations of the International De- partment of the CPC Central Committee, summarized how social organizations could contribute to the development of domestic human rights and promote international human rights cooperation. She believed that China’s social organizations were not only actively committed to promoting economic and social development at home, but also carried out extensive international exchanges and cooperation, which had become an important highlight in the development of China’s human rights cause. She also shared with the experts and scholars at the meeting her thoughts and suggestions on how to give full play to the advantages of the civil society, properly tell stories about China’s human rights from the perspective of the people, and build a civil human rights discourse system with Chinese characteristics. Zhang Guixuan, Deputy Division Director of the Special Department of Com- prehensive Operations of the China International Development Cooperation Agency, reviewed the reality of China’s foreign aid work, and made a detailed summary of the important achievements of China’s foreign aid work since the 18th CPC National Congress. In his view, major aid initiatives demonstrated China’s strong commitment; foreign aid for people’s livelihood had benefited recipient countries; aid construction of major projects had promoted the Belt and Road construction; foreign aid trainings helped recipient countries enhance their capacity for independent development; emergency humanitarian assistance also reflected China’s moral principles. Zhang Guobin, Secretary-General of the Chahar Society, elaborated on China’s human rights development and international influence since the reform and opening-up. He attributed China’s steady progress in human rights development to several factors. In his view, political stability had laid a foundation for the development of 588 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 575 human rights in China. Economic development had provided impetus for the development of human rights in China. Cultural prosperity had enriched the content of Chi- na’s human rights development. Social stability had provided an environment for the development of human rights in China. The sound legal system had guaranteed Chi- na’s human rights. International exchanges and cooperation had created opportunities for China’s human rights development. China opposed the Western hegemonic concept of human rights, and actively promoted the development of international human rights in the direction of fairness and justice. It had set a good example regarding the protection of human rights for developing countries, and had made positive contributions to the development of international human rights. Professor Luo Yanhua from the School of International Relations of Peking University elaborated on the process of China’s participation in international human rights cooperation in four stages after the reform and opening-up. She analyzed Chi- na’s specific practices, main characteristics and major achievements in international human rights cooperation and exchanges at different stages. She said that it was the implementation of the reform and opening-up policy that had promoted China’s participation in international human rights cooperation. Each new stage of reform and opening-up would also bring China’s participation in international human rights cooperation and exchanges to a new high. The establishment of the multisectoral cooperation group in 1980, the first White Paper on Human Rights published in 1991, the inclusion of human rights in the Constitution in 2004, and the concept of a community with a shared future for human beings put forward in 2013 were all landmark events in China’s participation in international cooperation and exchanges on human rights in the context of reform and opening-up.

B. Theoretical expression Professor Wang Lifeng of the Department of Political Science and Law of the Party School of the CPC Central Committee shared an innovative analysis on the construction of the community with a shared future for human beings. He believed that the community with a shared future for human beings proposed by China needed to respond to the moral and political dilemmas facing human rights around the world. The concept of human rights in the community with a shared future for humankind should focus on the moral global ideal of human rights, while being based on feasibility, emphasizing the universality, openness, inclusiveness and feasibility of human rights. In terms of moral construction, we should establish the basic human rights list with priority given to the rights to life and development, and set the principle of obligation based on justice, political legitimacy and ability. In terms of political construction, the significance of nation-state should be emphasized, and a responsible state based on domestic and international legitimacy should be constructed. Professor Mao Junxiang, Executive Director of the Center for Human Rights Studies at Central South University, demonstrated that reform and opening-up was an important driver of China’s participation in international human rights governance. He said that reform and opening-up had freed China’s mind, established its identity, provided practical support, constructed distinctive discourse, and enhanced its capacity 2018] EXPERIENCES AND ACHIEVEMENTS IN THE DEVELOPMENT OF 589 HUMAN RIGHTS IN CHINA IN THE PAST 40 YEARS OF REFORM AND OPENING-UP for changes as China sought to participate in international human rights governance. It was precisely because of reform and opening-up that China had been able to make important contributions to the cause of international peace and development, especially the cause of international human rights, while enjoying rapid development of its overall national strength. This was also the significance in a global sense of reform and opening-up. Professor Xu Yawen from the School of Law of Wuhan University focused on the Universal Declaration of Human Rights and the significance of improving the protection mechanism of the Declaration. He proposed that the Declaration had the functions of legitimacy and justification concerning human rights. The Declaration should be taken seriously. We should not only see the great significance of the Declaration, but also see that the Declaration was a soft law in nature. He therefore suggested that the principles of human rights should be embedded in China’s legal system; on the basis of international human rights standards, we should give consideration to human rights legislation, and build human rights protection institutions; we should popularize and implement the Declaration on Human Rights (white paper) and promote national human rights action plans; and we should promote human rights education for all and transform the Declaration from a commitment to action for all. Wu Wenyang, Lecturer at the Institute for Human Rights of China University of Political Science and Law summed up China’s achievements in actively promoting and implementing the right to development since the reform and opening up. At the international level, China supported and participated in the Declaration on the Right to Development, and initiated and contributed to the Beijing Declaration, which made important contributions to further promoting the right to development and strengthening South-South cooperation. At the domestic level, China was constantly enriching and deepening its understanding of the right to development, exploring a development path suited to its national conditions, and earnestly ensuring the realization of the right to development with Chinese characteristics. She believed that China’s experience and achievements in the right to development would contribute to the further development and implementation of this human right in China and beyond. VI. Conclusion In his closing speech, Fu Zitang, President of Southwest University of Political Science and Law and Vice President of China Society for Human Rights Studies, spoke highly of the seminar and its achievements. He said that the seminar had distinctive themes and was convened at the right time. It was a good preparation at the academic level for the large-scale commemoration of the 40th anniversary of reform and opening-up in the second half of 2018. President Fu said that the participants came from various disciplines and various departments of theory studies and practice. Their reports and speeches were informative and in-depth, and could be said to have formed the six-point “Wuhan Consensus” for the development and progress of China’s human rights cause. First, respecting and protecting human rights as the constitutional principle and the spirit of the CPC Party Constitution had been confirmed. Second, human rights thoughts and theories should advance with the times. Third, a 590 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 575 relatively complete system of human rights protection had been established. Fourth, remarkable achievements had been made in human rights protection and development. Fifth, a human rights development path suited to China’s national conditions had been taken. Sixth, the global human rights cause had been promoted by China. Ambassador Shen Yongxiang, Vice President of the China Society for Human Rights Studies, said in his closing speech that he had been engaged in human rights-related foreign affairs for a long time, and had to face every day the attacks of the West on China concerning human rights issues. However, he did not think their arguments had their grounds. In fact, by combining the cause of human rights with China’s national conditions, China had given priority to the rights to life and development, and had taken strong steps to promote and protect human rights. China’s achievements in various human rights undertakings were far more than those of other countries with the same per capita GDP as China. The papers and speeches in this seminar had fully demonstrated that. Adhering to Xi Jinping Thought on Socialism with Chinese Char- acteristics for a New Era, he hoped to take this seminar as an opportunity strengthen the commitment to doing a better job in telling China’s stories on human rights and writing China’s papers and articles on human rights as researchers continued their studies in the future, so as to contribute wisdom to the further development of human rights in China. (Translated by CHEN Feng) THE JOURNAL OF HUMAN RIGHTS VOL. 17 NO. 5 OCTOBER 2018

News-Clips (2018. 08-2018. 09)

August 2018

Disaster-relief materials sent to flooded areas in Xinjiang China’s Ministry of Emergency Management on August 1 sent a batch of disaster-relief materials to flooded areas in northwest China’s Xinjiang Uygur Autonomous Region. The materials, including tents, foldaway beds, and quilts, were transported to the storm-hit regions from the central government’s reserve warehouses in Urumqi and Kashgar, the ministry said. On July 31, some areas in the city of Hami in eastern Xinjiang were pelted by heavy rain. From: Xinhua China moves to improve legal services for disabled Chinese authorities have pledged to improve legal services for the disabled and enable them to fully participate in litigation, the Supreme People’s Court (SPC) said on August 2. People’s courts are required to facilitate ways for the disabled to engage in pro- ceeding such as filing a case, trial, or investigation, according to a circular issued by the SPC and the China Disabled Person’s Federation. From: Xinhua China reports 18,400 voluntary organ donors by July China has recorded 18,433 voluntary organ donors, who donated 52,213 organs, from 2010 to mid-July this year. The numbers were released by the Chinese Medical Doctor Association, organiz- er of the Chinese Transplant Congress held on Aug. 3 in Chengdu, capital of southwest China’s Sichuan Province. From: Xinhua Health authorities required to provide information, observation for rabies vaccines recipients Health authorities and healthcare institutions across China must provide observation and consultation services for people who have received rabies vaccines from Changchun Changsheng Life Sciences Ltd., according to a statement issued by the National Health Commission (NHC) on Aug. 7. The measure is aimed at safeguarding the health and safety of the public and protecting the legitimate rights of vaccine recipients, the NHC said in the statement. From: Xinhua 592 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 591

Chinese people’s pursuit for better life unstoppable: article Come rain or shine, the steps of Chinese people in pursuing a better life are unstoppable, according to a Chinese language commentary which was published under the byline “Xuanyan” in the People’s Daily on August 8. The 4,700-character article, titled “Create a better life, come rain or shine,” summarized China’s development and reform since 1949, as well as its attitudes towards the challenges facing the country. From: Xinhua China welcomes Bachelet’s appointment as UN human rights chief China welcomes Michelle Bachelet’s appointment as the United Nations High Commissioner for Human Rights and is ready to work with her on the development of international human rights, Foreign Ministry spokesperson Lu Kang said on August 13. The United Nations General Assembly on August 10 approved the former Chil- ean President as the next UN human rights chief. From: Xinhua China slashes foreign media for smearing anti-terror measures in Xinjiang China on August 14 criticized some foreign media for smearing China’s anti-ter- rorism and crime-fighting measures in Xinjiang Uygur Autonomous Region, saying their reports are driven by ulterior motives. “Some anti-China forces have made false accusations against China for political purposes,” Foreign Ministry spokesperson Lu Kang said in a written statement. The United Nations committee on the elimination of racial discrimination reviewed the situation in China at its 96th session on Aug. 10 and 13 in Geneva. From: Xinhua China’s Red Cross society donates relief fund for flood-victims in Myanmar The Red Cross Society of China (RCSC) has provided relief fund for Myanmar people in flood-affected areas in Yangon on August 13. On behalf of the RCSC, Chinese Ambassador Hong Liang handed over 100,000 U.S. dollars’ relief fund to Myanmar Red Cross Society. In accordance with the figures from the National Natural Disaster Management Committee and the Ministry of Social Welfare, Relief and Resettlement, at least 20 people were killed by flooding across Myanmar, especially in southern part of the country recently. From: Xinhua 2018] NEWS-CLIPS 593

China, Africa to strengthen cooperation in poverty reduction China and Africa will step up cooperation to reduce poverty, a Chinese poverty relief official said on Aug. 14. The two sides will strengthen communication to share their experience of poverty alleviation and work together to conduct research in the field. From: Xinhua China begins 3-year action plan to improve environmental monitoring China’s top environmental watchdog will implement a three-year action plan from this year to clamp down on environmental offenses including fabrication and interference of monitoring data. China’s Ministry of Ecology and Environment will step up supervision and checks on the data gathered by monitoring agencies at provincial, municipal and county levels, an official with the ministry said on August 16. From: Xinhua China releases guideline on winning battle against poverty China released a guideline on Aug. 19 on winning the battle against poverty in the next three years to prepare the nation for eradicating poverty by 2020. The guideline reiterates the country’s target of lifting all rural poor and impov- erished counties out of poverty and eliminating absolute poverty by 2020 to build a moderately prosperous society. From: Xinhua China working on long-term poverty relief strategy China’s campaign against poverty will not come to an end in 2020, as the country is working on a long-term strategy for poverty reduction, an official said on August 20. “To become a moderately prosperous society in all respects by 2020, our biggest area of weakness lies in rural areas, especially the poor people in rural areas,” Han Jun, deputy director of the office of the central agricultural work leading group, said at a press conference. From: Xinhua United focus urged for poverty relief China will adhere to the current criteria for determining the size of its poor population and enhance poverty relief policies to ensure extreme poverty is eliminated by 2020, a government official said on Aug. 20. The central government released a document in 2015 saying that in order for people to qualify for government assistance, they should meet five criteria or have an annual income under 2,300 yuan ($335), as set in 2010, and adjusted annually for pur- chasing power parity. From: China Daily 594 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 591

China to deepen fight against gangs: official A senior Chinese official on Aug. 21 demanded deepening the fight against criminal gangs. The order was given at a national workshop chaired by Guo Shengkun, a member of the Political Bureau of the Communist Party of China (CPC) Central Committee and head of the Commission for the Political and Legal Affairs of the CPC Central Committee. From: Xinhua Premier urges more efforts to develop western China Chinese Premier Li Keqiang has called for more efforts to boost growth momen- tum and improve people’s livelihood in the country’s less-prosperous western regions on August 21. Western areas should continue with reform and opening-up and vigorously innovate to achieve high-quality development, said Li, who is also head of the State Coun- cil leading group on the development of western regions. From: Xinhua Chinese ministry announces new measures for poverty alleviation China’s Ministry of Civil Affairs on Aug. 22 unveiled new measures to support the fight against poverty. These include strengthening social welfare support, mobilizing non-governmental organizations, volunteers, philanthropists to join the anti-poverty campaign, improving subsidies for people with disabilities, providing better care for the elderly and left-behind children in rural areas, and improving community-level governance and its oversight. From: Xinhua China launches emergency flood relief response in Anhui China’s disaster relief authorities have launched a level IV emergency response plan to help flood victims in Anhui Province, the Ministry of Emergency Management said on Aug. 22. About 2.63 million people in the east China region were affected by floods as rivers saw surging water levels due to heavy rains and influxes of water from upper reaches. From: Xinhua Major China city to be coal-free to battle pollution The northwestern Chinese city of Xi’an has set a target to be coal-free by 2020 in a bid to tackle air pollution. Xi’an, capital of Shaanxi Province and home of the Terracotta Army, has rolled out a spate of tough measures for cleaner air in a three-year action plan, the city gov- 2018] NEWS-CLIPS 595 ernment said on August 23. From: Xinhua Authorities order Didi to improve safety after passenger killed The Ministry of Transport (MOT), the Ministry of Public Security and local authorities on Aug. 26 ordered ride-hailing platform Didi Chuxing to rectify operation patterns so that ensure safety with its services after a female passenger was killed in east China’s Zhejiang Province. According to local police, a 20-year-old woman went missing after hailing an auto from Didi in the city of Wenzhou. The driver was caught by police and confessed to rape and murder. From: Xinhua Draft tax law revision eyes fairer income distribution Chinese lawmakers on Aug. 27 began the second reading of a draft decision on the Individual Income Tax Law at a bimonthly session of the top legislative body. Explaining the draft to lawmakers at the start of the National People’s Congress (NPC) Standing Committee session, Xu Hui, vice chairman of the NPC’s Constitution and Law Committee, said that it is necessary to revise the current law to enable taxation to better play its role in adjusting income distribution. From: Xinhua Lawmakers mull regulation to protect memorial ceremony for Nan- jing Massacre victims A draft regulation to protect the national memorial ceremony for Nanjing Mas- sacre victims was submitted for deliberation at a session of the Standing Committee of the Nanjing Municipal People’s Congress that opened on Aug. 28 in east China’s Jiangsu Province. According to the draft, speech that distorts or denies the facts of the Nanjing massacre, behavior such as photo-taking or video-shooting dressed in the uniforms of Japanese invaders at memorial sites, and infringements of the right of name and por- trait of victims, survivors and martyrs of the Nanjing massacre will all be banned and punished. From: Xinhua China allocates 177 million yuan for flood relief China’s National Development and Reform Commission (NDRC) on Aug. 29 said it has allocated relief fund totaling 177 million yuan (about 26 million U.S. dollars) for the flood-hit Shandong Province. Shandong has suffered from severe floods after Typhoon Rumbia, the 18th this year, brought heavy rains to the coastal province. As of Aug. 23, at least 3.8 million people were affected, with six dead and 15 missing, according to local authorities. From: Xinhua 596 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 591

Boost for western areas mulled More measures are in the pipeline to boost investment in infrastructure in China’s western areas, a senior official with the nation’s top economic regulator said on Au- gust 30. The planned measures will seek to stem the investment downtrend that may hin- der balanced development of the economy, he said. From: China Daily China adopts new law on soil pollution prevention China’s top legislature on August 31 passed a law on soil pollution prevention and control, as the country has escalated its fight against pollution. The law was adopted after the third reading at a session of the Standing Commit- tee of the National People’s Congress (NPC). From: Xinhua

September 2018

China lifts 740 million rural poor out of poverty since 1978 China lifted 740 million people in rural areas out of poverty from 1978 to 2017, roughly 19 million each year, the National Bureau of Statistics (NBS) said on Sept. 3. The poverty ratio in rural areas dropped 94.4 percentage points during the same time period with an average annual decrease of 2.4 percentage points, according to the NBS. From: Xinhua Red Cross Society of China strengthens cooperation with Tibet The Red Cross Society of China and the regional government of southwest Chi- na’s Tibet Autonomous Region signed an agreement on Sept. 4 to further reinforce cooperation in humanitarian aid. The organization will help and promote emergency rescue training, humanitarian aid, and international exchanges and cooperation in the region, according to the agreement. From: Xinhua China to release updated essential medicines list China’s National Health Commission on Sept. 5 announced its recent plan to publish the 2018 National Essential Medicines List, which will cover 165 more medicines than the prior edition. The updated list will have 685 medicines, made up of 417 Western medicines and 268 Chinese-patented medicines, Zeng Yixin, vice director of the commission, said at 2018] NEWS-CLIPS 597 a press conference. From: China Daily Gov’t funds aid 520 million students in six years China has financially aided 520 million students since the 18th National Congress of the Communist Party of China in 2012, spending 886.4 billion yuan (129.6 billion U.S. dollars), an official with the Ministry of Education said on Sept. 6. According to Zhao Jianjun, deputy head of the ministry’s finance department, six new policies on the financial aid were released during the six years, while 13 relevant policies were improved. From: Xinhua Violence on campuses takes a dive China has seen a continuous drop in cases of violence on school campuses in the past three years, thanks to improvements in the Chinese Criminal Procedure Law and efforts aimed at protecting juveniles. The number of offenses on campuses, including kindergartens, primary schools and colleges, exceeded 1,000 in 2015, but fell 16.5 percent in 2016 and then declined another 13.4 percent in 2017, according to a report issued by the China Justice Big Data Institute on Sept. 6. From: China Daily Financial aid given to 95.9 million students China spent 188.2 billion yuan ($27.5 billion) last year helping 95.9 million students — from preschools to universities — attend school, the Ministry of Education said on Sept. 7. The funding represented an increase of 92 percent from 2011, while the number of students receiving financial support from the government was up 22 percent in the same period, Tian Zuyin, director of the National Center for Student Financial Aid, told a news conference in Beijing. From: China Daily China calls for food safety checks at schools China’s Ministry of Education (MOE) on Sept. 7 released a circular calling for better food safety work for the country’s nutritional improvement plan for students. The circular was based on recent food poisoning incidents in several regions that involved a large number of students. From: Xinhua Vice premier calls for raising food safety standards Chinese Vice Premier Han Zheng on Sept. 8 stressed the focus on solving problems in the country’s food safety work while presiding over the first plenary session of the food safety commission of the State Council. 598 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 591

Han, also a member of the Standing Committee of the Political Bureau of the Communist Party of China (CPC) Central Committee and head of the food safety commission, said that food safety concerns the health of everyone, and is one of the top concerns of the people. From: Xinhua Beijing rebuts human rights allegation Beijing said on Sept. 10 that the Human Rights Watch NGO has always been full of prejudice against China and distorted the facts when it accused the Chinese government of suppressing Uygurs. The organization said in a report that the Chinese government conducts mass arbitrary detention, torture, mistreatment and daily pervasive controls on Uygurs. From: China Daily China launches safe travel initiative A safe travel initiative aimed at raising awareness of traveling safely and providing humanitarian aid during travels was launched on Sept. 10 in Beijing. The “Safe and Responsible Travel Initiative” was jointly announced by the Unit- ed Nations Development Programme (UNDP), China International Center for Eco- nomic and Technical Exchanges, China Tourism Academy, and Ctrip, China’s leading online travel agency. From: Xinhua Xi stresses social norms of respecting teachers, valuing education Chinese President Xi Jinping has called on the Communist Party of China (CPC) and society to promote the social norms of respecting teachers and valuing education on Sept. 10. Xi, also general secretary of the CPC Central Committee and chairman of the Central Military Commission, made the statement at a national education conference on Sept 10, which marks the 34th Teachers’ Day in China. From: Xinhua China urges Sweden to guarantee safety and legitimate rights of Chi- nese tourists China has called on Sweden to guarantee the safety and legitimate rights of Chi- nese tourists, Foreign Ministry spokesperson Geng Shuang said on Sept. 11. “In the early morning of Sept. 2, three Chinese tourists, including two elderly, were brutally treated by local police on the outskirts of Stockholm,” Geng told a rou- tine press briefing. From: Xinhua 2018] NEWS-CLIPS 599

Over 6 million children benefit from China’s neonatal screening programs More than 6 million Chinese children in poverty-ridden areas have benefited from neonatal screening programs, the National Health Commission said Sept. 12. It is estimated that 5.6 percent of newborns have birth defects in China. Data from the China Disabled Persons’ Federation suggests that about 900,000 babies are born with birth defects every year. From: Xinhua China slams a Japanese man for kicking ‘comfort women’ statue Mitsuhiko Fujii, a citizen of Japan who was in Taiwan representing 16 civilian groups who objected the building of a “comfort women” statue, was captured by sur- veillance cameras kicking the bronze statue and posing for pictures on Sept. 6. Chinese Foreign Ministry spokesperson Geng Shuang on Sept. 12 said China hopes Japan will take up its responsibility and handle the incident properly, when asked about China’s stance on the man’s conduct. From: CGTN Chinese ambassador questions Swedish police after tourists thrown out of hotel Chinese ambassador to Sweden Gui Congyou said he couldn’t understand the Swedish police’s claim, which said the policemen who brutally treated Chinese tourists didn’t violate the law. “The head of the local police station met with my colleagues at this noon,” the ambassador told Aftonbladet on Sept. 17. “The police chief confirmed that the three tourists didn’t break the Swedish laws, but also said the policemen didn’t break the laws either. We can barely understand the statement.” From: CGTN China to become world’s largest country of organ transplants in 2020 China is expected to have the most organ transplant surgeries in 2020, said Huang Jiefu, director of the China National Organ Donation and Transplantation Committee. The number of registered volunteers for organ donation in China had neared 615,000, with 19,380 successful donation surgeries resulting in 54,956 organs trans- planted as of Sept. 9 this year, according to the Third China International Organ Dona- tion Conference that opened in Xi’an on Sept. 21. From: Xinhua Environment watchdog talks with local officials on misuse of natural reserves Local officials in eight regions and heads of forestry in three provinces were called for environment watchdog talks on Sept. 26 regarding misuse and damage of natural reserves. 600 THE JOURNAL OF HUMAN RIGHTS [Vol. 17: 591

The Ministry of Ecology and Environment (MEE) commanded local authorities to strictly manage natural reserves, prohibiting them from pursuing temporary economic benefit at the price of worsening the environment. From: Xinhua China unveils air pollution control plan for Beijing, neighboring region China will begin reducing the average intensity of PM2.5, a major air pollutant, by around 3 percent year on year in Beijing, Tianjin, Hebei and surrounding areas this fall and winter, according to an official plan released on Sept. 27. The plan was released by the Ministry of Ecology and Environment, several other central government departments and the governments of six provincial-level regions. From: Xinhua Action plan aims to add more clear winter days The Ministry of Ecology and Environment released an action plan on Sept. 28 that aims to add more days of clear skies this autumn and winter. The plan will be implemented in 28 cities, including Beijing, Tianjin and cities in Hebei, Shanxi, Shandong and Henan provinces. From: China Daily