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Human Rights, China and the UN: A UPR Mid-term Assessment

In a world where the international legal order is on the defence,[1] the Universal Periodic Review (UPR) of China’s human rights situation epitomises the challenges inherent to the work of the United Nations (UN) bodies responsible for the monitoring and protection of human rights. We must be clear about the flaws, before considering what the European Union (EU), its member states, and Europeans more widely might do to address them. It is in this spirit that the Jean Monnet Network on EU-China Legal and Judicial Cooperation (EUPLANT) convened a workshop to address China’s growing role and influence in the UN human rights system[2] as well as an assessment of recent developments in the Xinjiang Uighur Autonomous Region and in Hong Kong in relation to recommendations put forward during China’s third UPR conducted by the UN Human Rights Council.[3]

Published:

 EUPLANT logo sat above the Erasmus+ logo which states 'with the generous support of the Erasmus+ programme of the European UnionThis blog entry was first published by Amicus Curiae, Vol 2 No 2 (2021).

Matthieu Burnay (Queen Mary University of London) and Eva Pils (King’s College London)

Over the past few years, following the nomination of Xi Jinping to Party General Secretary and President of the People’s Republic, the Chinese Party-State has worked to perpetuate and intensify a system of governance to which human rights violations are inherent – in criminal justice and access to justice; in public communication now including the social media; in the economic systems of exploitation and dispossession; and in the denial of political participation rights to all of its citizens (Pils 2018). There has always been much to criticise, but it is only under Xi Jinping that the trend of reform towards improvements was decisively reversed. Xi Jinping’s ‘New Era’ has hence been described as ‘the end of an era’ (Minzner 2018) or a ‘third revolution’ (Economy 2018) marking a deepening of authoritarianism in China’s governance. Teng Biao, one of the exiled critics of the system, has rightly characterised the turn under Xi as ‘high-tech totalitarian’ (Teng 2020).

The workshop began with a presentation by Dr Sophie Richardson (Human Rights Watch) that situated the UPR within the wider context of China’s engagement with the United Nations. It then moved on to discussing two of the most pressing human rights issues in China today. These interrelated discussions reflected the fact that Xi’s ‘New Era’ impacts the world, even as some of its worst consequences so far have been visited on two regions on the margin of this new empire – in human rights terms, the bleakest and the most advanced.

China's Ambition to Change the UN Human Rights System

In line with the Party-State commitment to strengthen the country’s ‘discourse power and influence in international legal affairs’ (CCP Central Committee 2014), China has become increasingly engaged with UN bodies as part of its broader strategy to become an active shaper and sometimes shaker of global governance at both institutional and normative levels. Against the background of what has been described as a crisis of the liberal international order, the Party-State clearly perceives there is a momentum for China to reform existing institutions and change existing norms to make them serve China’s interests (Burnay 2020). These developments are particularly visible in the framework of UN Human Rights Bodies. In the words of Richardson, drawing on her experience as China Director of Human Rights Watch, ‘Chinese authorities are trying to rewrite norms and manipulate existing procedures not only to minimize scrutiny of the Chinese government’s conduct, but also to achieve the same for all governments’ (2020a).

At institutional level, China was recently re-elected by the UN General Assembly to serve a consecutive three-year mandate at the UN Human Rights Council starting in January 2021. Yet, interestingly, one could notice a sharp decline in the support for China’s membership between the 2016 election (180 votes in favour) and 2020 election (139 votes in favour) (Richardson 2020b). And although China’s membership of the UN Human Rights Council gives it an important avenue to influence the UN human rights framework, it nevertheless also brings China’s own human rights record under increased scrutiny. For example, in April 2020, China was appointed to one of the five seats of the Consultative Group of the UN Human Rights Council. This influential committee is responsible for the selection of the key advisers and investigators who support the work of the Human Rights Council. In the coming year, this committee will be responsible for the appointment of global monitors on freedom of speech, health, enforced disappearances, and arbitrary detention – in light of its systematic violations of this right (see below), an ‘absurd and immoral’ development in the words of the Head of the NGO UN Watch (UN Watch 2020).

Within the UN Human Rights Council, China has not only attempted to silence criticisms against its own human rights record, but also to promote a discourse driven by the Party-State’s domestic discourse, norms, and interests. This has on the one hand meant that China’s normative activism in the UN Human Rights Council has promoted a conception of sovereignty and non-intervention as absolute (Hsu and Chen 2020). On the other hand, it has led to the propagation of Xi Jinping’s notion of the ‘community of shared future for humankind’ – a conveniently open phrase that can serve to justify China’s global power expansion. The Party-State’s view on human rights is also informed by a strong emphasis on the right to development (China White Paper 2016), which serves Beijing’s narrative on mutually beneficial cooperation with developing countries in particular.

Hong Kong’s accelerating collapse as a manifestation of global autocratisation

During the last UPR in 2018, the situation of the eight-million Hong Kong Special Administrative Region on China’s South coast was already precarious, but there was no acute crisis. The region had gone through a mass campaign of demonstrations for democratic elections in 2014, followed by a crackdown on the initiators, and there were fears, partly grounded in the Chinese government’s unilateral claim in 2017 that the international treaty upon which Hong Kong’s system is based was no longer binding. The UPR conclusions & recommendations in 2018 included Australia’s recommendation to ‘uphold the rights, freedoms and rule of law embodied in the one country, two systems framework for Hong Kong (Australia28.343) and Canada’s recommendation to ‘ensure the right of Hong Kong people to take part in government without distinction of any kind (28.345 Canada).’[4]

Within a short two years since then, however, Hong Kong’s legal-political system has been brought to the brink of collapse. An attempt to create legislation that would have allowed extradition of criminal suspects from Hong Kong into China’s feared criminal justice system triggered peaceful street protests at an unprecedented scale and -- following heavy handed, repressive responses from the authorities – violent clashes between students and the police (Time Magazine 2020; Davis 2020). The situation seemed to be untenable, and the world waited with bated breath for the central authorities’ response, which came the following summer. In June 2020, the People’s Republic of China (PRC) enacted a ‘Law for the Protection of National Security in the Hong Kong Special Administrative Region’ (NSL) which came into force on 1 July 2020.[5]

Although less than half of the promised 50 years of transition had passed, the provisions of the NSL, as well as the institutions set up under it, spell the end of Hong Kong’s constitutional system, supposedly safeguarded by the Sino-British Joint Declaration, an international treaty, and by the applicability to Hong Kong of the ICCPR and ICESCR. The law introduces broadly defined crimes of secession (article 20), subversion (article 22), terrorist activities (article 24), and ‘collusion with a foreign country or with external elements to endanger national security’ (article 29), likely to be used to punish peaceful political criticism. It establishes a PRC –led security apparatus within the HKSAR; substantially ousts judicial review over NSL matters; and allows some cases to be diverted entirely into Mainland criminal justice system – effectively bringing back ‘extradition’ with a vengeance, albeit under a different name.

As though this were not bad enough, moreover, the central authorities have since administered further shocks to Hong Kong’s imperilled constitutional system. In November 2020, they ousted four legislators belonging to the oppositional pro-democratic-reform wing (National People’s Congress Standing Committee 2020; Hong Kong Government 2020), prompting their colleagues to resign in protest. In December 2020, at a ‘Legal Forum’ featuring speeches from several high-ranking officials and academic advocates frequently wheeled out to speak on behalf of the central authorities, the deputy head of the central government’s Hong Kong and Macau Affairs Office spoke cryptically of ‘judicial reforms’ in Hong Kong in a speech that also postulated only those who ‘love Hong Kong and the motherland’ should rule Hong Kong (Zhang 2020).

There is no doubt that these changes have undermined Hong Kong’s civil and political rights by effectively criminalising government criticism. They thereby remove the foundations of what was once a thriving and vitally important civil society, able to address human rights issues not only in Hong Kong but also in mainland China and beyond. They are threatening academic freedom, as numerous academics have been affected by varying levels of political persecution (Wang 2020; The Economist 2020; Wong 2020), including the criminal convictions of Professors Benny Tai (HKU) and Chan Kin-Man (CUHK), and although some independent media organisations are holding up against pressure, the high-profile arrest of ‘Apple Daily’ media entrepreneur Jimmy Lai under the new National Security Law seems symbolic of threats to media freedom. (Davidson 2020)

Abuses and Crimes in the Xinjiang Uighur Autonomous Region

While the trends discussed so far are deeply concerning, it is the situation in the Xinjiang Uighur Autonomous Region that raises the most profound current human rights concerns – concerns that were beginning to be raised at the 2018 but that have dramatically increased in the meantime (UN Human Rights Council 2018b; Byler 2020; Harris 2020; Mahmut 2020; Smith-Finley and Klimes 2020).[6]

There, beginning in 2017, the authorities have interned an estimated one million or more predominantly belonging to ethnoreligious minorities including the Uighurs, targeting those deemed at risk of ‘religious extremism’ under (local) domestic law with measures including incarceration, forced labour, rape, forced ‘medication,’ torture, suspect deaths in custody. Additionally, the government is engaging in mass on-and offline surveillance; monitoring and control -- including facial recognition technology; enforced ‘homestays’ by Han Chinese officials; a reported campaign of forced sterilisations disproportionately affecting minority women; the removal of children from families; the destruction or ‘disneyfication’ of cultural and religious sites; and the repression of domestic criticism and advocacy accompanied by an elaborate state media disinformation campaign (Smith Finley 2020).

Many of these practices violate China’s own criminal law, as well as international human rights law. They do not only systematically violate numerous core human rights norms, including the rights to life, liberty and integrity of person; right not to be tortured; reproductive self-determination; freedom of expression and freedom of religion or belief; antidiscrimination rights; etc., as rights protected under UDHR, UNCAT, CRC, CERD and other instruments; as well as the rights to be protected from forced labour, also in transnational supply chains, enshrined in the Slavery Convention and in the ius cogens norms of customary international law.

At the time of the 2018 UPR, Xinjiang was already widely discussed, as is reflected in recommendations to ‘implement the recommendations of the Committee on the Elimination of Racial Discrimination on Xinjiang and allow the United Nations unrestricted access to monitor the implementation‘ (United Kingdom); and to ‘abolish all forms of arbitrary detention, including internment camps in Xinjiang, and immediately release the hundreds of thousands, possibly millions, of individuals detained in these camps’ (United States of America) (UN Human Rights Council 2018b, 28.22, 28.23 and 28.177).

But our understanding today, most concerningly, indicated that these practices also constitute crimes against humanity, as defined by the Rome Statute (to which China is not a party) and raise the spectre of genocide (Smith Finley 2020; Wan 2020).

Conclusion: A Global Power Challenged, if not Checked by International Law

At first glance, the efforts of ‘the international community’ to address China’s human rights violations through the UN appear to have been an almost total failure. Duelling statements on the situations in Hong Kong and Xinjiang have shed light on the existence of opposing coalitions in the Human Rights Council. When the Hong Kong National Security Law was adopted, a coalition led by Cuba emphasised it is ‘not a human rights issue and therefore not subject to discussion at the Human Rights Council’ (Cuba 2020) while a coalition led by the UK emphasised the NSL has ‘clear implications for the human rights of people in Hong Kong’ (Foreign and Commonwealth Office 2020). When the first reports on mass detention in XUAR emerged in August 2018 (OHCHR 2018), the issue quickly escalated and came under increased international scrutiny including in the framework of the UN Human Rights Council. It led to two successive rows of duelling letters in 2019 and 2020. In the summer of 2019, 22 state representatives called for China to ‘respect human rights and fundamental freedoms (…) in Xinjiang’ (22 States 2019) in response to which another coalition of more than 50 states submitted another statement justified China’s action by referring to the ‘grave challenge of terrorism and extremism’ in the region (Global Times 2019). Another round in this rhetorical fight took place one year later when the German Ambassador to the UN submitted a statement on behalf of 39 nations calling China ‘to allow immediate, meaningful and unfettered access to Xinjiang for independent observers’ (Germany 2020).

In a nutshell, debates on Hong Kong and Xinjiang in the UN Human Rights Council have not led to any concrete responses. Rather, they have shed light on the very divisions that exist within the international community regarding the universality of human rights, in particular when China is concerned, and UN human rights bodies lack effective mechanisms to secure compliance with powerful member states’ international human rights commitments. Beyond the human rights mechanisms of the UN, moreover, it is also clear that there would be extraordinarily challenging obstacles to seeking accountability through the mechanisms set up to deal with international crimes (Wan 2020).

And yet, despite the structural weaknesses of the UN human rights system and the mechanisms of public international law more widely, the workshop also reminded us of the centrality of adherence to norms whose substance has remained relevant not only to the victims of their violation, but also to the embattled idea of an international rule of law (Sandholtz 2019). ‘[P]people need to appeal to institutions beyond their government’s immediate control.’ (Richardson 2020b). Not only does China’s growing presence and visibility in the UN human rights system put its own human rights record under greater international scrutiny, one can also note that China’s ability to shape and shake UN institutions and norms have not always been as successful as expected. In that sense the alarming deterioration of the human rights situation in China has, inter alia, led to a call by 50 experts to create a China-specific mandate or take other ‘appropriate measures’ (UN OHCHR 2020). In addition, records of UN Human Rights Council proceedings demonstrate a declining support for draft resolutions proposed by China on ‘mutually beneficial cooperation in the field of human rights’. While the 2018 Resolution (UN Human Rights Council 2018a) was adopted by 28 to 1 with 17 abstentions, there was a clear declining support for the 2020 Resolution (UN Human Rights Council 2020) that was adopted by 23 to 16 with 8 abstentions (Richardson 2020b).

Against this background, initiatives at bilateral level (i.e. human rights dialogues) or the adoption of Magnitsky-style legislation should be seen as complementary to the existing multilateral framework. Whilst the robustness (and weakness) of the UN human rights framework are likely challenged again before China’s next UPR, there is a strong need to avoid any kind of cynicism and to reaffirm the centrality of multilateral platforms that enable individuals, civil society organisations, and governments to shed light on human rights violations wherever they happen.

References

Normative Documents

  • ‘CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward’ (China Copyright and Media, 24 October 2014), available at https://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-central-committee-decisionconcerning-some-major-questions-in-comprehensively-moving-governing-thecountry-according-to-the-law-forward/.
  • Foreign and Commonwealth Office, UN Human Rights Council 44: Cross-regional statement on Hong Kong and Xinjiang, 30 June 2020, available at https://www.gov.uk/government/speeches/un-human-rights-council-44-cross-regional-statement-on-hong-kong-and-xinjiang.
  • Government of the Hong Kong Special Administrative Region (2020) ‘Tequ zhengfu genju quanguo renda changweihui jiu Xianggang Tequ lifahui yiyuan zige wenti suo zuochu jueding er xuanbu sangshi lifahui yiyuan zige de renshi’ (Persons who have been declared disqualified by the SAR government in accordance with the National People's Congress Standing Committee Decision on the Issue of Legislative Council Membership) available at https://www.info.gov.hk/gia/general/202011/11/P2020111100437.htm.
  • Joint Statement delivered by Permanent Mission of Cuba at the 44th session of Human Rights Council, 30 June 2020, available at http://www.china-un.ch/eng/hom/t1793804.htm.
  • National People’s Congress PRC (2020) ‘Quanguo renmin daibiao dahui changwu’ weiyuanhui (Decision on the problem of the status of Legislative Council members of the Hong Kong Special Administrative Region) available at http://www.xinhuanet.com/politics/2020-11/11/c_1126725802.htm.
  • Statement by Ambassador Christoph Heusgen on behalf of 39 Countries in the Third Committee General Debate, 6 October 2020, https://new-york-un.diplo.de/un-en/news-corner/201006-heusgen-china/2402648.
  • UN Human Rights Council (2018a) “Promoting Mutually beneficial cooperation in the field of human rights,” A/HRC/RES/37/23, resolution adopted on 23 March 2018.
  • UN Human Rights Council (2018b) A/HRC/40/60 ‘Report of the Working Group on the Universal Periodic Review (China),’ (Part II – Conclusions and Recommendations’) 26 December 2018.
  • UN Human Rights Council (2020). ‘Promoting mutually beneficial cooperation in the field of human rights,’ Resolution A/HRC/43/L.31/Rev.1, 16 June 2020.
  • United Nations Human Rights Office of the High Commissioner (2018) ‘Committee on the Elimination of Racial Discrimination reviews the report of China’, 13 August 2018, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23452.
  • UN Office of the High Commissioner on Human Rights (2020), ‘UN experts call for decisive measures to protect fundamental freedoms in China,’ 26 June 2020, available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26006&LangID=E.
  • White Paper on ‘The Right to Development: China's Philosophy, Practice and Contribution’, 2 December 2016, http://chinahumanrights.org/html/2016/WP_1202/6586_6.html.
  • 22 States’ Joint Statement to the 41st session of the United Nations Human Rights Council (UNHRC), 8 July 2019, available at https://www.hrw.org/sites/default/files/supporting_resources/190708_joint_statement_xinjiang.pdf.

Footnotes

[1] For an account of current debates, see Eilstrup-Sangiovanni and Hofman (2020) and Ikenberry (2020).

[2] This research and event took place in the context of the Jean Monnet Network EUPLANT (EU-China Legal and Judicial Cooperation) financed by the Erasmus+ Programme of the European Union (Ref: 599857-EPP-1-2018-1-UK-EPPJMO-NETWORK).

[3] ‘Human rights, China and the UN: a UPR Mid-term Assessment,’ public seminar chaired by Matthieu Burnay with panel contributions by Sophie Richardson and Eva Pils, 7 December 2020, available at

https://www.qmul.ac.uk/events/upcoming-events/items/human-rights-china-and-the-un-upr-mid-term-assessment.html.

[4] UN Human Rights Council 2018b, comments by Australia (28.343) and Canada (28.345).

[5] For a reliable English translation of the authoritative Chinese text, see China Law Translate 2020.

[6] For a periodically updated bibliography, see Fiskeskjö (2020).