China’s Contribution to International Human Rights During the Past Seventy Years

Tom ZWART

I.Introduction

This year marks the 70thanniversary of the People’s Republic of China.Consequently,this is a suitable moment to reflect on the contributions made by China to international human rights.

Seventy years is a very long time,and much has happened during this period.Therefore,such a review by definition needs to be selective.

Therefore,in this paper the focus will be on three important efforts made by China to build and preserve the international human rights system.First attention will be paid to China’s contribution to the drafting of the founding document of the human rights system,theUniversal Declaration of Human Rights(hereafter： UDHR).Second,the role played by China within the international human rights system,which can be described as ‘contesting through compliance’ will be discussed.Finally,the concept of building a human community with a shared future,which has been unveiled by President Xi Jinping,will be highlighted.

II.China as the Co-founder of the International Human Rights the System

China has played a prominent part during the drafting of the UDHR through its representative Peng-chun Chang,who was a distinguished scholar,educator,playwright and diplomat.He was a member and vice-chairman of the UN Commission on Human Rights during the drafting of the UDHR,and he played a major role in writing the document as a member of the drafting committee.1Sumner B.Twiss,“Confucian Contributions to the Universal Declaration of Human Rights,A Historical and Philosophical Perspective.”,in The World’s Religions,A Contemporary Reader,ed.Arvind Sharma (Minneapolis： Fortress Press,2011),103-104.He was one of the intellectual powerhouses on the Commission and his voice was very authoritative.2Ibid.,102.He should be regarded,therefore,as one of the Founding Fathers of the UDHR.

During the discussions,Zhang presented a vision on human rights which is distinct from and serves as an alternative to the liberal model,and which had a major impact on the way the UDHR was drafted.Through his interventions in the debate,Zhang laid out the groundwork for an alternative approach to human rights which combined the strengths of Confucianism and emerging human rights theory.To do so,he projected the strong points of Confucian family relations on society as a whole.In this way,humanity and interrelatedness,which are the core values of the society of acquaintances,also become the foundation of the society of strangers.Through the UDHR,si de,the Confucian notion of private morality,was transformed intogong de,i.e.civic morality.Instead of relying on right-bearing individuals,Zhang focused on role-bearing persons.3Henry Rosemont,“Rights-bearing Individuals and Role-bearing Persons.”,in Rules,Rituals,and Responsibilities,Essays Dedicated to Herbert Fingarette,ed.Mary I.Bockover (La Salle： open court press,1991).

Zhang stressed that a human being at all times has to be conscious of other persons,in whose society he lives,4Twiss,Confucian Contributions to the Universal Declaration of Human Rights,A Historical and Philosophical Perspective,110.which is encapsulated by the notion ofrenor‘two-man-mindedness’.5Ibid.,106; this,of course,is a literal translation of the Chinese character,which Lydia H.Liu,“Shadows of Universalism： The Untold Story of Human Rights around 1948”,Critical Inquiry 40 (2014)： 385-417.This notion of consciousness of one’s fellow man,6Johannes Morsink,The Universal Declaration of Human Rights,Origins,Drafting and Intent (Philadelphia：University of Pennsylvania Press,1999),297.or human interrelatedness,exemplifies the idea that every person is a social being,whose life gets shape through relationships with other people.The road to personal fulfilmentis based on commitment to community rather than selfishness and isolation.7Wing-Tsit Chan,“The Evolution of the Confucian Concept of Jên”,Philosophy East and West 4 (1955)： 411.Zhang expressed the view that the UDHR should aim for the humanization of man.8Twiss, Confucian Contributions to the Universal Declaration of Human Rights,A Historical and Philosophical Perspective ,110.Therefore,at Zhang’s insistence,renwas included in the UDHR and appeared both as ‘conscience’and as ‘the spirit of brotherhood’ in Article 1.9Ibid.,111; Morsink,The Universal Declaration of Human Rights,Origins,Drafting and Intent,296-302.According to Zhang,the notion of brotherhood matched the Chinese concepts ofli,or propriety,andren,the considerate treatment of others.10Twiss,Confucian Contributions to the Universal Declaration of Human Rights,A Historical and Philosophical Perspective,111.

Through his interventions Zhang added a community dimension to the UDHR.This community dimension ofrenis not only expressed through ‘brotherhood’ but also exemplified by Article 16 (3),which states that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.11Morsink,The Universal Declaration of Human Rights,Origins,Drafting and Intent,255.Under Article 1,the beneficiaries of rights are discouraged from using them while pursuing their own self-interests at the expense of their communities and their fellow human beings.According to Zhang,“the aim of the United Nations was not to ensure the selfish gains of the individual but to try and increase man’s moral stature.”12Liu,Shadows of Universalism,412.

Article 29(1) which stipulates that “Everyone has duties to the community in which alone the free and full development of his personality is possible” also supports this approach.The article makes clear that the individual can attain the full development of his personality only within the framework of society.13Morsink,The Universal Declaration of Human Rights,Origins,Drafting and Intent,247-248,referring to the British delegate.According to Morsink the word ‘alone’ indicates an organic connection between the individual and the community to which he or she owes duties.14Ibid.,246.In Morsink’s view,the word ‘alone’ may well be the most important single word in the entire document,for it refutes the idea that the rights set forth in the UDHR create egotistic individuals who are not closely tied to their respective communities.15Ibid.,248.

Through his contributions Zhang demonstrated that the liberal model does not enjoy a monopoly in the field of human rights and that a powerful alternative,based on humanity and interrelatedness,is available.He did so,not by reading liberal human ideas into classical Chinese thought,but by enriching human right theory by adding Chinese ideas and notions to it.Since he was a Founding Father of the UDHR,through his drafts and amendments Zhang secured that this alternative approach became part of this founding document,which should not therefore be regarded as an ode to liberalism as some observers would like us to believe.In this way China,through this distinguished representative,acted as a co-founder of the international human rights system.

III.China as a Loyal Supporter of the Human Rights System:Contesting Through Compliance

A.Introduction

Governments,activists and scholars from the Global North have sometimes complained that China is not playing by the international human rights rules.That statement is contradicted by the attempts made by China during the past decades to be an active and constructive player within the international human rights system.It has done so by putting forward its own distinctive approach to human rights,which is closely aligned with the UDHR.

B.Implementation through law and morality

China takes the view that while law can play an important role in the implementation of human rights obligations,this role should not be restricted to formal written law,but should also extend to the moral rules which regulate society.16Liu Jie,Human Rights,China Road (Beijing：China Intercontinental Press,2014),31-32.At the local level human rights may be better protected by morality,or by a mix of moral and formal legal rules,than by formal law.As Jie rightly indicates,while the North only relies on legal standards to avoid and redress human rights violations,in China much importance is also attached to moral rules.17Ibid.Chinese people tend to believe that cultivating morality is an effective way to respect and protect rights.

Under general international law states enjoy discretion with regard to the implementation of treaty obligations within the national order.18Manfred Nowak,U.N.Covenant on Civil and Political Rights,CCPR Commentary,2nd ed.(Kehl： N.P.Engel Verlag,2005),57.As long as they meet the obligations laid down in the treaty to which they have signed up,they are free to choose the most appropriate way of doing so at the domestic level.In other words,domestic application is an obligation of result rather than an obligation of means.19Oscar Shachter,“The Obligation to Implement the Covenant in Domestic Law”,in the International Bill of Rights,The Covenant on Civil and Political Rights,ed.Louis Henkin (New York： Columbia University Press,1981),311; Nowak,U.N.Covenant on Civil and Political Rights,CCPR Commentary,57.Therefore,the implementation of treaties,including human rights conventions,is governed by the principle of ‘domestic primacy’.20Douglas L.Donoho,“Human Rights Enforcement in the Twenty-First Century”,Georgia Journal of International & Comparative Law 35 (2006-2007)： 12.This means that China is justified in relying on moral rules for the implementation of its human rights obligations.

C.The need to respect sovereignty and non-interference

China maintains that human rights are essentially matters within the domestic jurisdiction of each state,and therefore it attaches much value to respect for each country’s sovereignty and non-interference in internal affairs.21Jie,Human Rights,China Road,52-68; Phil Chan,China,State Sovereignty and International Legal Order(Leiden： Brill-Nijhoff,2015),121 and 124.According to the 1991White Paper on Human Rights in China(hereafter： theWhite Paper),22Information Office of the State Council of the People’s Republic of China,1991,accessed January 5,2020,http：//china.org.cn/e-white/7/index.htm.China firmly opposes the use of human rights by any country as a tool to push its own values or ideology,or as a pretext to interfere in the internal affairs of other countries.

The aim of making human rights the responsibility of the international community was to terminate the situation in which states were allowed to act as they pleased regarding the human rights of those who were under their jurisdiction.During the Second World War the failure of such a system in which states have an exclusive say regarding those who are under their jurisdiction was demonstrated by the atrocities committed by several states.Thus,millions of Chinese lost their lives or their dignity at the hands of the Japanese occupiers.

Therefore,as a result of signing up to the international human rights regime,countries,including China,can no longer claim to enjoy absolute sovereignty in the area of human rights.

However,although international human rights law may no longer recognise the absolute sovereignty of states in this area,it still respects their primacy.Thus,international human right law emphasis the importance of subsidiarity,a principle under which it is first and foremost up to the States Parties to deal with human rights issues under their own jurisdiction.International bodies are only allowed to step in when the states fail to live up to their obligations.In addition,as theWhite Papermakes very clear,China opposes the use of human rights by one state as a pretext to force its ideology on another.The international human rights instruments themselves prevent such use of human rights as a ‘Trojan horse’.These instruments do not prescribe a particular philosophy or world view which has to be adopted by States Parties.They are only supposed to live up to their obligations,nothing more,nothing less.23Tom Zwart,“Using Local Culture to Further the Implementation of International Human Rights： The Receptor Approach”,Human Rights Quarterly 34 (2012)： 546-569.

D.Subsistence and development are paramount human rights

In the White Paperthe State Council has made it clear that the rights to subsistence and development are paramount human rights.According to the White Paper,for any country the right to subsistence is the most important of all human rights,without which the other rights cannot exist.24Robert Weatherley,The Discourse of Human Rights in China,Historical and Ideological Perspectives,(Houndmills： Palgrave Macmillan,1999),121.Therefore,securing the right to subsistence is China’s main priority.In addition,China also gives precedence to the right of the people to economic,social and cultural development.China emphasises that,according to the Declaration on the Right to Development,25Adopted by the General Assembly of the United Nations on 4 December 1986,A/RES/41/128.this right encompasses both individual and collective rights.26Pinghua Sun,Human Rights Protection System in China (Heidelberg： Springer,2014),89.

According to human rights theory,human rights are indivisible and interdependent.This means that all rights — civil and political,as well as economic,social and cultural — are equal in importance and none can be fully enjoyed without the others.However,the indivisibility and interdependence of human rights does not object to giving priority to one or more rights over others.27Jie,Human Rights,China Road,31.As long as one human right is not being used to justify abridging or neglecting the other,it fits within human rights theory.Thus,in the U.S.the freedom of expression is considered to have a ‘preferred position’.28Elizabeth Wallmeyer,“Filled Milk,Footnote Four & the First Amendment： An Analysis of the Preferred Position of Speech after the Caroline Products Decision”,Fordham Intellectual Property,Media and Entertainment Law Journal 13 (2003)： 1019-1052.In Germany human dignity and the general personality right are seen as the paramount rights.29Edward J.Eberle,“Human Dignity,Privacy and Personality in German and American Constitutional Law”,Utah Law Review 4 (1997)： 963-1056.The fact that China attaches more importance to subsistence rights and the right to development therefore is mirrored by the state practice of other countries.

E.Collective rights are at least as important as individual rights

China takes the position that collective human rights are at least as important as individual ones.The rationale behind the emphasis on collective rights is that the individual depends on the collective for the realisation of his rights.30Weatherley,The Discourse of Human Rights in China,108.Individual interest are considered to be inseparable from those of the group,and can therefore only be guaranteed if those of the group are guaranteed.31Ibid.,105.

The position that collective human rights are as important as individual ones finds support in the UDHR and it drafting history.Thus,Article 1 of the UDHR states that all human being are endowed with conscience and should act towards one another in a spirit of brotherhood.As was explained above,these words were included in Article 1 at the initiative of the Chinese delegate,Peng-chun Chang.Zhang felt that the Confucian notion ofrenshould complement the individual rights laid out in the UDHR.In his view,the ‘spirit of brotherhood’ implies discharging one’s duties towards others.These rights and duties therefore became interdependent.The aim of including the notion of brotherhood in Article 1 was to prevent the catalogue of rights from becoming a source of selfishness and insularity.32Ibid.,111-112.

F.Rights and duties are linked

In China,rights and duties are regarded as two sides of the same coin.33Sun,Human Rights Protection System in China,94.As one of the Founding Fathers of modern Chinese human rights theory,Li Buyun,has stated,rights and obligations of human rights cannot be separated.To achieve a unity between the two,and deal with their relationship rationally and scientifically,is an important feature of an advanced human rights system.34Li Buyun,Jurisprudential Exploration (Changsha： Hunan People’s Publishing House,2003),251.

Such an emphasis on the importance of the link between rights and duties finds support in the UDHR.During the negotiations on this document,Peng-chun Chang promoted the idea that the Universal Declaration is a ‘people’s charter’ which comes to life when people do good to each other.This understanding of human rights presupposes the existence of duties.The individual is a member of society and he must affirm his right to be a human being by clearly recognizing the duties which are corollaries of his rights.35Morsink,The Universal Declaration of Human Rights,247,quoting the Cuban delegate.The duty of one person corresponds with the right of the other.36Ibid.,243-244.This culminated in the adoption of Article 29 of the UDHR,which stipulates that the individual owes duties,both to the community as a whole and to others.

G.The state as promoter and protector of rights

In China the state is commonly regarded as a force for good which promotes and protects human rights rather than limiting or jeopardising them.This stems from the theory of benevolent government developed by Mencius.According to this theory the government only acts in the interest of the people,without pursuing any interests of its own.The cooperation model relied upon by China meets the requirements of the international human rights regime,since the major treaties require the states parties to ensure the enjoyment of the rights included therein.

H.Rights are universal and country-specific

China has consistently taken the position that human rights are both universal and country-specific.37Sun,Human Rights Protection System in China,86.Since the realisation of human rights is closely connected to the historical conditions,social structure,political system,and cultural tradition of each country,universality has to be pursued in light of specific national conditions.38Ibid.,87.

This Chinese position builds on and is therefore justified by the UDHR.This document was meant to be applied first and foremost by the people in their relationships with others39Morsink,The Universal Declaration of Human Rights,324..It also serves both as a reflection and legitimization of diversity.Therefore,it does not come as a surprise that the UDHR assumes that human rights need to be implemented within their local political,social and cultural context.

I.Insisting on dialogue instead of confrontation

Inspired by their Confucian heritage,Chinese people tend to prefer harmony over discord.Consequently,they try to settle their differences amicably through mediation and reconciliation,rather than resorting to adversarial proceedings and litigiousness.It is not surprising,therefore,that China at the international level has also consistently promoted dialogues and exchanges of good practices between different cultures instead of confrontation and exclusion.40Foreign Secretary Tang Jiaxuan,A/55/PV.12,7; Sun,Human Rights Protection System in China,97.

The dialogue model promoted by China fits well into the international human rights regime.When actors engage in confrontation they try to portray their own position on human rights as the only one which is valid and legitimate.When actors engage in dialogue their aim is to find common ground by developing a mutually acceptable solution.They are willing to give up their own human rights position for the greater good of reaching agreement.41Sun,Human Rights Protection System in China,98; Cheng Qian,“The Culture of China’s Mediation in Regional and International Affairs”,Conflict Resolution Quarterly 28 (2010)： 57-58.

J.Contesting through compliance

Despite the fact that China’s positions are in accordance with the international human rights regime,Northern observers tend to take a rather dim view of China’s performance.This is caused by the fact that China often challenges the liberal ‘sacred cows’ which Northerners sometimes read into the international human rights system.Therefore,China is contesting some of these liberal dogma’s while complying with the international human rights rules： it is ‘contesting through compliance’.42Tom Zwart,“Contesting Through Compliance： How China Can Gain More Support for its Human Rights Positions”,Chinese International Law Review (2017)： 3-15.

Through its ‘contesting through compliance’ stance China ensures that the international human rights system remains within the four corners of international law.While speaking with an authentic voice it positions itself as an active and constructive player within the system.Since China’s position is shared by a growing number of Southern countries,it will be recognised by many countries within the UN system as a legitimate moral leader which voices Southern ideas and ambitions.

IV.China as the Protector of the Future of the System:Building a Human Community with a Shared Future

A.Introduction

China has not only contributed to the establishment and the operation of the international human rights system,its is also investing in its agility and longevity.In a number of speeches,President Xi Jinping has made clear that that China will remain committed to the international order and multilateralism,while upholding national sovereignty and the principle of non-interference.On the other hand,China is not content with simply preserving the status quo,and therefore President Xi Jinping has reflected on how the international system should develop.43Speech by H.E.Xi Jinping President of the People’s Republic of China at UNESCO Headquarters,accessed March 28,2014,https：//www.fmprc.gov.cn/mfa_eng/wjdt_665385/zyjh_665391/t1142560.shtml; keynote speech by H.E.Xi Jinping at the Boao Forum for Asia Annual Conference 2015,accessed March 28,2015,http：//www.xinhuanet.com//english/2015-03/29/c_134106145.htm; Working Together to Forge a New Partnership of Win-win Cooperation and Create a Community with a Shared Future for Human Beings,Statement made by H.E.Xi Jinping at the General Debate of the 70th Session of the UN General Assembly,accessed September 28,2015,https：//www.voltairenet.org/article188880.html.

B.Creating a world truly shared by all

According to the President,the ideals of the UN,such as peace,development,equity,justice,democracy and freedom,lofty though they are,are not always put into practice.Therefore,UN members should continue their efforts to achieve these goals.44Ibid.,UN speech.To realise the purposes and principles of the UN Charter a new type of international relations should be developed which acknowledges that all countries are interdependent and share a common future.Therefore,a human community with a shared future should be built.45Ibid.,UNESCO speech,Boao speech and UN speech.To make this point,President Xi Jinping referred to an ancient Chinese proverb： “The greatest ideal is to create a world truly shared by all.”

C.Harmony as a key component

According to President Xi Jinping,harmony ought to be a key component of the human community with a shared future.However,harmony should not be confused with sameness.46Ibid.,UNESCO speech.According to President Xi Jinping,the world is more colourful as a result of cultural diversity.He referred to a traditional Chinese maxim： “A single flower does not make spring,while one hundred flowers in full blossom bring spring to the garden”.If there were only one kind of flower in the world,people will find it boring no matter how beautiful it is.Therefore,civilizations must accept their differences.They should draw inspiration from each other to boost the creative development of human civilization and enable progress.47Ibid.,UNESCO speech and UN speech.

These observations have their roots in classical Chinese thought.The value of harmony lies in its connecting contradictory parts,by which opposites are transformed into mutually dependent elements.48Xinzhong Yao,“The Way of Harmony in the Four Books”,Journal of Chinese Philosophy 40 (2013)： 255-256.Sameness leads to stagnation,while diversity creates dynamism and advances growth.Things come together even as they constantly change and flourish.Harmony is sustained by energy generated through the interaction of different elements in creative tension.49Chenyang Li,“The Confucian Ideal of Harmony”,Philosophy East & West 56 (2006)： 589.

D.Win-win cooperation on the basis of exchanges and mutual learning

President Xi Jinping has made clear that the diversity which characterises civilisations should also have consequences for the cooperation format.The starting point should be for different civilizations to respect each other and to live together in harmony.The differences should be bridged through exchanges and mutual learning.Civilizations should enrich themselves by seeking wisdom and nourishment from others.50Xi Jinping,UNESCO speech and Boao speech.Such cooperation should be characterised by solving disputes and differences through dialogue and consultation rather than confrontation.51Xi Jinping,UN speech.

President Xi Jinping has emphasised that states should abandon the zero-sum game of the winner takes all and should opt instead for win-win cooperation.States are supposed to accommodate the interests of others while they are pursuing their own.52Xi Jinping,Boao speech and UN speech.

E.Equality as the basis

President Xi Jinping has explained that within a human community with a shared future all countries should respect one another and treat each other as equals.Countries may differ in size,strength or level of development,but they are equal members of the international community with equal rights to participate in international affairs.Being a big country means shouldering greater responsibilities for world peace and development,rather than seeking greater monopoly over world affairs.53Xi Jinping,Boao speech.

According to President Xi Jinping,this means that all human civilizations are equal in terms of value.They all have their respective strengths and shortcomings.There is no perfect civilization,nor is there a civilization that is devoid of any merit.Therefore,no value system should be deemed superior to others.Taking a condescending attitude toward a civilization is unwarranted and may risk antagonizing it.The big,strong and rich countries should not bully the small,weak and poor.Pride and prejudice should therefore be avoided.54Xi Jinping,UNESCO speech,Boao speech and UN speech; Zhao Xiaochun,“In Pursuit of a Community of Shared Future,China’s Global Activism in Perspective”,China Quarterly of International Strategic Studies 4(2018)： 28-29.

F.Applying ‘building a human community with a shared future’ to the human rights system

From the speeches delivered by President Xi Jinping,in light of the classical philosophy on which he has relied,a numbers of pointers can be distilled which can guide the international human rights system in a post-liberal order.

First,human rights discourse is being dominated by a liberal approach favoured in the Global North.Supporters of this approach believe that their liberal human rights values,which they regard as being universal,should not only guide their behaviour,but also that of the other members of the world community.55Jack Donnelly,Universal Human Rights in Theory and Practice, 2nd ed.(Ithaca： Cornell University Press,2003),7-53.Since President Xi Jinping has made clear that in a human community with a shared future no value system should be deemed superior to others,there will no longer be room for such a dominance of the liberal human rights view.

Second,the value attached by President Xi Jinping to ‘harmony through diversity’ calls for a human rights system that celebrates rather than suppresses local social,political and cultural differences.This point of view is closely aligned with the object and purpose of the UDHR.

In view of the fact that the UDHR was meant to be applied first and foremost by the people in their relationships with others,while the document serves both as a reflection and legitimization of diversity,it assumes that human rights need to be implemented within their local political,social and cultural context.

Third,the international system would gain in strength if President Xi Jinping’s call for cooperation based on exchanges and mutual learning,while solving disputes and differences through dialogue and consultation rather than confrontation,would be heeded.The relationship between states within the international human rights system would become a partnership based on respect and equality rather than a hierarchy within which so-called good performers are rated higher than bad performers.The culture within the international human rights system would become one of encouragement and assistance rather than criticism and condemnation.Antagonistic procedures would be replaced by harmonious ones.During the sessions states will exchange best practices rather than lecturing each other on shortcomings.The emphasis would be on leaning and self-cultivation.

V.Conclusion

The three developments described above show that,during the past seventy years,China has been an important contributor to the international human rights system.In so doing,it has consistently relied on the UDHR,to the drafting of which it has contributed through the efforts of Peng-chun Chang.

Trough its reliance on ‘contesting through compliance’ China ensures that the international human rights system is in accordance with international law.Since China’s position is shared by a growing number of Southern countries,it will be recognised by many countries within the UN system as a legitimate moral leader which voices Southern ideas and ambitions.

Adopting the concept of building a human community with a shared future as developed by President Xi Jinping,which is based on ‘harmony through diversity’,will secure the adaptability,longevity,and fairness of the international human rights system.