Hatla Thelle (ed.): Political Development and Human Rights in China — Report from Five Seminars at the Danish Centre for Human Rights, and Anders Mellbourn and Marina Svensson: Swedish Human Rights Training in China – An Assessment

At a time when China is again beset by the rise of social
movements, be they wildcat or organised—millenarian, obscurantist (Fa
lungong
) and xenophobic (anti-American demonstrations), these two short studies
offer the reader a wealth of analyses and information which are refreshing to
say the least. They help put into perspective these various and contradictory
ideologies (although this is probably too weighty a term to characterise the jumble
of opinions which have come out of Peking in recent months), investing contemporary
Chinese society.

To begin with, it should be pointed out that these two
works provide hardly any new material about Western and in particular Scandinavian
policy with regard to the question of human rights in China. Nor do they aim to
give a run-down on the actual human rights’ situation in that country. It
is true that there are elements in these studies signalling a new approach to
the issue. Indeed, in 1998 Denmark and the Netherlands were finally won over to
the politics of “dialogue” adopted the previous year by a majority of
countries in the European Union. Since then, only the United States has been continuing
to put a resolution condemning China before the UN Human Rights Commission. It
is also true that these studies do not deny that the overall record of the authorities
in Peking in this area remains a negative one and has even tended to get worse
since the repression of the leading Chinese political dissidents begun at the
end of 1998—something borne out by the recent reports of the main NGOs (Amnesty
International) and the American State Department (1).

But these publications highlight a certain number of developments
that it would be wrong to pass over, and which provides good food for thought
about the way in which we can work towards improving the human rights situation
in China. First of all, the Danish study reminds us (pp. 40-41)—giving, let
us hope so, and with good cause, some feeling of guilt to our leaders of yesteryear—that
the West “discovered” human rights abuses in China at the time of the
Tiananmen Square massacre. Before 1989, only a few “human rights advocates”,
mostly linked to dissidents, tried in vain to draw the attention of Western public
opinion to an utterly deplorable situation. Needless to say, at the time of Mao,
while human rights violations were reaching rarely surpassed heights, even fewer
were those prophets who, such as Simon Leys, were crying out in a desert of disbelief
or indifference which our strategic confrontation with the Soviet Union did not
fully explain—and in no way justified.

The second merit of these studies is to have shown the
importance assumed by the debate on human rights in China over the past few years.
In fact, as the Danish study reminds us, there has been a remarkable and often
underestimated turnaround in Peking’s approach to this issue in the last
20 years. From giving a radical critique of a concept that, prior to 1979, they
considered to be “bourgeois”, officials in the Chinese Communist Party
have come not only to adopt this notion but also to accept that it be debated
in international fora. In order to disarm foreign, and especially Western, criticism,
it was paradoxically following Tiananmen Square that China embarked on a “vigorous
human rights diplomacy” (p. 62). Today, the country is engaged in an all-out
dialogue on this issue. And such new-found discourse on human rights, as shown
by the frank and forthright contribution of Ms Wu Qing (pp. 20-31), an independent
feminist (ie. non communist) parliamentarian in the Haidian (Peking) district
Assembly, cannot but have an influence on Chinese society.

It is clear that, as shown by Ann Kent and Marina Svensson,
the conversion of the People’s Republic to human rights is quite relative.
Its approach today is both culturalist (Asian values) and developmentalist or
gradualist (rice before democracy); and the (provisional) softening of its line
in this respect is still often dependent on international objectives (2000 Olympic
Games, Clinton’s visit to China) which are fiercely fought for at the negotiation
table. The dialogue proposed by China has above all the goal of defusing any confrontation
with Western governments while at the same time giving the latter the means of
self-justification at home at little cost (2). For a long time its attitude with
respect to international instruments was mistrustful before becoming selective.
For example, the implementation of the Convention against Torture that Peking
signed back in 1986 cannot be independently verified in China; China’s signing
of the Economic and Social Rights Covenant (in 1997) and even more its signing
of the Civil and Political Rights Covenant (in 1998) are marred by reservations
(notably on the right of association) that are full of weighty consequences. Moreover,
for the time being, neither covenant has been ratified by the Chinese Parliament.

But, unlike the Soviet Union of old (which, we should not
forget, was one of the first states to adhere to these two covenants…), China
has not only instituted an increasingly “sophisticated” (p. 50) human
rights discourse since the early 1980s, but has also promoted significant research
on the subject. Moreover, its attitude has sometimes evolved in the right direction,
at any rate externally. Thus, it now holds that the international community may
act against human rights violations in a given country—that is infringe what
to it are the sacrosanct principles of sovereignty and non interference in internal
affairs—in extreme cases (apartheid, genocide) (p. 50). A position that one
would have wished it to adopt at the time of the Khmers rouges and which does
not yet seem to have affected its present support for Milosevic…

China today intends to establish a “socialist state
ruled by law”. To this end, it knows that it has a lot to learn from the
West, where virtually all of its jurists who have today gone abroad to complete
their education are being trained. Whilst most of them are in universities, other,
more politically engaged institutions have also been able to start making a contribution
to this effort in recent years. Thus, beginning in 1996, the Peking authorities
accepted the idea of sending around thirty upper echelon police and justice bureaucrats
(judges, public prosecutors, prison authorities) each year to attend fortnight-long
workshops at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law.
Established in 1984 in memory of the Swedish diplomat who saved countless Hungarian
Jews during the Second World War (before vanishing in Stalin’s jails) and
attached to the University of Lund in Sweden, the charter of this Institute is
to promote research and training in such branches of the law.

Obviously, such an initiative brings with it many problems
and gives rise to a range of criticisms of which the Swedish organisers are only
too well aware. In fact, the government in Stockholm which supports this project
considers human rights and democracy to be intimately connected, whereas the Peking
government may be suspected of wishing, thanks to such training courses, to “modernise”,
via some legal artifice, the Communist Party’s dictatorship over society
and to improve the effectiveness of its responses to Western denunciations. It
goes without saying that the authors of this report do not share such a view,
and we would be tempted to follow them in this, subject however to some reservations.

First of all, merely deploring and condemning human rights
violations in China is no longer credible today, so clear is it that, as in any
other country, the multiplying of links between Chinese and foreign legal practitioners
and experts represents a slow but sure factor of judicial and political change.
Next, the idea of training the trainers (p. 15), in spite of its elitist character,
is totally justified in view of the weakness of judicial culture in Communist
China and of the present “top down” reform process. Moreover, to the
surprise of the report writers, the Chinese trainees have on the whole accepted
the content of the training very well, being especially pleased to learn that
“the concept of human rights is not a specific Western weapon used against
China but a universal concept” (p. 3). Only discussion on the death penalty—an
issue too often tackled by Westerners from a moral more than a legal and social
perspective—and torture have given rise to lively controversies, in particular
with the representatives of State Security. On the other hand, the public prosecutors
have shown themselves to be especially interested in the application of international
norms in the area of penal procedures and attracted to the Swedish export product
that the Institution of the Ombudsman has been for quite some time (p. 4).

Nonetheless, the real question is the impact that this
kind of training will have. No-one today can assess its short to medium-term influence.
The report writers, who do not deny this, state:

“Many of the participants [in these training courses]
have been promoted… and could perhaps be agents of change in the future. But
it is not realistic to put too much hope on a few isolated individuals in a huge
country such as China. It is also dangerous to vest too much hope on enlightened
higher officials, since human rights protection is much more a bottom-up process
than top-down process.” (p. 31)

This last remark calls for two reservations which will
serve as a conclusion. On the one hand, as in the evolution of most politico-juridical
systems observed (cf. Taiwan), reforms decided upon by a government are shored
up—or sunk—by the pressures of society. China is no exception, with
its lot of claimants and plaintiffs of all kinds coming before public administrations
and the courts. The setting up of laws and judicial institutions closer to ones
we know in the West—and leaving it up to China, without futile rows or anti-Americanisms,
to make its own choice between the various existing systems (Roman-Germanic law,
common law)—is likely to gradually instil into a growing number of Chinese
a certain legal spirit, that is a civilised way of settling conflicts among others
(cf. mediation). But on the other hand, this necessary co-operation should not
conceal the fundamental political conflict which sets us in opposition to the
rulers in Peking. Condemning the Chinese government’s human rights violations
and making overtures to this government aimed at relaxing its repression of political
opponents must be pursued, whatever form such overtures may take in the future,
preferably in a multilateral frame. As both these studies show, keeping up this
type of action does not have the goal of giving oneself a clear conscience or
appealing to certain sections of public opinion. Rather, it contributes to forcing
the Chinese government to assume its responsibilities at a time when it sees itself
as playing an increasing role in the international community.

Translated from French original by Peter Brown

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