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Full Text In THE JOURNAL OF HUMAN RIGHTS VOL. 18 NO. 5 OCTOBER 2019 CONTENTS FOCUS: ANTI-TERRORISM AND PROTECTION OF HUMAN RIGHTS 551 On the Relations Between National Security and Human Rights Defined in the Constitution of the People’s Republic of China ..................................................................................................HAN Dayuan 564 On the Conflict and Balance Between Anti-terrorism and Protection of Hu- man Rights ������������������������������������������������������DING Shouqing & GU Liyan 579 The Counterterrorism Mechanism Integrated into Human Rights .................................................................................................... HE Zhipeng 590 Protection of Basic Human Rights in the Application of Big Data to Count- er Terrorism ................................................................. XIA Yu & QI Yanping ACADEMIC MONOGRAPH 603 Protection of Women’s Rights in the National Governance of Contempo- rary China .................................................................................ZHU Xiaohui 613 On the System of Rights Underlying the Right to Health and Constraints on the Right to Health — Including a Commentary on the Basic Health- care and Health Promotion Law (Draft) �������������������������ZHANG Dongyang HISTORICAL NARRATIVE 634 A Commentary on Lo Chung-shu’s Human Rights Philosophy .................................................................................................... SUN Shiyan NEW DEVELOPMENT 650 Equality, Participation and Sharing: 70 Years of Protecting the Rights and Interests of Persons with Disabilities in the PRC .................................................. The State Council Information Office, PRC 676 Academic Review of International Seminar on “Counterterrorism, De-radi- calization and Human Rights Protection” ......ZHANG Yonghe & ZHANG Li 695 Comparison of Human Rights Values Between the East and the West — Summary of the 2019 China-Europe Seminar on Human Rights ����������������������������������������������������������������������������������������LI Lei & TENG Rui NEWS-CLIPS (2019. 10 − 2019. 11) 708 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. 18 NO. 5 OCTOBER 2019 On the Relations Between National Security and Human Rights Defined in the Constitution of the People’s Republic of China HAN Dayuan* Abstract: Counterterrorism, de-radicalization and anti-violence are the major tasks of the international community� As the arch ene- my of human rights, terrorism destroys the constitutional order and endangers people’s lives, freedom and safety� It is the obligation of modern countries and the core value of legal states to safeguard hu- man rights� Human rights should be effectively safeguarded under the premise of building a sound constitutional order and national security� Public order and social stability foster a sound environment for the protection of human rights� In the face of terrorism’s severe threat to human rights, all countries are re-examining the order of human rights values and seeking mechanisms and procedures to balance National Security and Human Rights through their constitutions� The concepts of human rights and social order and the ways to explain the two are different due to different constitutional systems and cultural and re- ligious traditions� However, they do have something in common, that is, counterterrorism and de-radicalization do not conflict with human rights protection� Efforts should be made to foster a view of human rights based on security and a view of security based on human rights, and a dynamic principle of proportionality established for counterter- rorism and human rights protection, so endowing the traditional prin- ciple of proportionality with flexible, rich value connotation� Keywords: national security terrorism human rights princi- ple of proportionality Counterterrorism, de-radicalization and anti-violence are the major tasks of the international community. Terrorism destroys the social order, endangers people’s lives, freedom and property and profanes human civilization and human values. In the new situation of national security, all countries are exploring mechanisms to balance national security and human rights and striving to establish a sound, interactive mech- anism to safeguard national security and human rights and rectify the traditional the- oretical category and thinking patterns that make national security and human rights antagonistic to each other. * HAN Dayuan ( 韩大元 ), Professor of the School of Law, Director of the Human Rights Research Center of Renmin University of China. 552 THE JOURNAL OF HUMAN RIGHTS [Vol. 18: 551 I. National Security Defined in the Constitution of China The text of China’s Constitution is the premise and foundation to understand and apply it. The wording of the Constitution was carefully thought out. People deliber- ated over the connotations of the text of the Constitution.1 In the traditional theories of public law, national security is a comparatively marginalized concept and compre- hended as a concept antagonistic to human rights, or a negative concept. Yet, based on the interdependence of national security and human rights, security and human rights are of equivalently paramount value and national security is the important basis of hu- man rights protection. A. Connotations of the word “state” The word “state” appears with great frequency in the text of China’s Constitu- tion, occurring 149 times.2 The meaning and usage of the word “state” are different in various articles in the Constitution, but in general the word has the following three connotations: 1. “State” as the unified political community The most common use of the word “state” is to represent the whole unified politi- cal entity, which can be specifically divided into the “state” in the sense of sovereignty (to other countries) and sovereign power (to domestic affairs) respectively. In the first sense, as stipulated in Paragraph 2 of the Preamble of the Constitution of the People’s Republic of China: “After 1840, feudal China was gradually turned into a semi-colonial and semi-feudal country. The Chinese people waged many suc- cessive heroic struggles for national independence and liberation and for democracy and freedom.” As stipulated in Article 67: “The Standing Committee of the National People’s Congress exercises the following functions and powers:...(18) to decide, when the National People’s Congress is not in session, on the proclamation of a state of war in the event of an armed attack on the country or in fulfillment of international treaty obligations concerning common defense against aggression.” In the second sense, the common expression is “state power”, “state organs”, “the structure of the State”, “state functionary”, “state authority” and “state administrative organization”, etc. As in Article 57 of the Constitution (“The National People’s Con- gress of the People’s Republic of China is the highest organ of state power. Its perma- nent body is the Standing Committee of the National People’s Congress”), Article 96 1. In the Constitution, the same word may indicate different concepts. For instance, in the Preamble of the US Constitution, the meaning of “people” is different from that in Article 10 of its amendment. Henry Paul Monaghan, “We the People[s], Original Understanding, and Constitutional Amendment”, Columbia Law Re- view 96 (1996):133. 2. The word “state” has different meanings in the US Constitution, as pointed out by James Madison, father of the US Constitution. See Robert A. Rutland et al. ed., Papers of James Madison 17 (1975): 307-309. It was approved by the Supreme Court of the United States. In the 1869 version, the Supreme Court of the United States particularly analyzed the different meanings of “state” mentioned in the Constitution. See Texas v. white, 74 U.S (7 Wall), 700, 720-721(1869). The court holds the view that the “state” in the Constitution is a concept linking the people, territory and the government. It is a political community founded by free citizens, owning its territory, organized by the government with the authorization
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