BY OUR STAFF REPORTER
---An interview with Research Fellow Mo Jihong of the Chinese Academy of Social Sciences
Research Fellow Mo Jihong, Institute of Law of the Chinese Academy of Social Sciences
Editor's Note: On the advent of the "International Human Rights Day" on Dec. 10, 2007, our staff reporter Interviewed Research Fellow Mo Jihong of the Chinese Academy of Social Sciences on how the international human rights conventions are implemented in China.
Born in May 1965, Mo Jihong is a native of Jingjiang, Jiangsu Province. He is a research fellow at the Law Institute of the Chinese Academy of Social sciences and a tutor for Ph.D candidates in the International Human Rights Law. He also serves as an executive member of the Society for International Constitution Studies and vice-president of the
Constitution Chapter of the China Society of Law. He was a visiting scholar at the Human Rights Institute of Norway, and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law. His principal works include International Human Rights Convention and China (2005), Principles of Constitutional Sciences in Practice (2007) and In Defense of Legislation (2007). He was elected as one of the ten most outstanding young jurists in China.
The following is the full text of the interview:
Q: Will you please say something in general about human rights documents in the world and what documents China has signed and ratified?
A: After World War II, there appeared the International Bill of Human Rights based on the United Nations Universal Declaration of Human Rights, principally the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). The Bill is mainly made up of three groups of interconnected documents on international laws, that is, the Declaration, Covenants and optional protocols. Besides, the general recommendations by the treaty bodies are also an important part of the source of International Human Rights Bill. The Declaration is principled and directive in nature. Treaties usually make all the principles specific and set up corresponding mechanisms for realizing the protection of human rights. Optional protocols are supplementary documents demanding state parties to undertake more obligations to protect human rights so as to make the treaties better implemented. Generally speaking, ratification of the conventions is the preconditions of approving optional protocols. At present, ICCPR has two optional protocols. The first optional protocol sets the mechanism for individual claims. The second optional protocol aims at the abolition of the death penalty.
Apart from these, the UN has adopted some important human rights documents. The most important among them are: International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Rights of the Child (CRC), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW).
China has joined in 22 international conventions on human rights. The National People's Congress, China's top legislature, has ratified the International Covenant on Economic, Social and Cultural Rights. The Chinese government is studying the ratification of the International Covenant on Civil and Political Rights.
China has ratified five of the seven major international conventions on human rights and signed one, as shown in the following table:
||International Covenant on Economic, Social and Cultural Rights (ICESCR)
||International Covenant on Civil and Political Rights (ICCPR)
||Internationa Convention on the Eimination of All forms of Racial Discrimination (ICERD)
||Convention on the Eimination of All forms of Discrimination against Women (CEDAW)
|| Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Publishment (CAT)
||Convention on the Rights of the Child (CRC)
|| International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)|
|| not signed|
|Data of signature and ratification
||Oct. 5 1998
||Feb. 28 2001
||Dec. 29 1981
|| Nov.4 1980
|| Oct.4 1988
|| Jan.31 1992
Q: There are two ways of implementing international treaties. One is to adopt and the other is to transform it. What method has China adopted to implement international human rights treaties? Can the court directly quote provisions of human rights conventions and can judges directly apply them?
A: China has adopted the method of "transformation" in implementing the international human rights conventions. Parties concerned in the court cannot directly quote from international conventions on human rights to protect their rights in the people's court. They have to use the domestic law for the implementation of international human rights conventions to defend themselves. Neither can judges use the international convention as the legal basis to pass the ruling.
Q: How is the implementation of international human rights conventions ensured in China?
A: According to the provisions of Item 14 under Article 67 of China's Constitution in force, the Standing Committee of the National People's Congress (NPC) has the right to decide on the ratification and abolition of treaties and important agreements with foreign countries. So the NPC standing committee has the right to ratify the international human rights conventions and, by making related laws, implement international conventions China has ratified.
Q: What are the problems that merit attention in the implementation of international human rights conventions in China, taking the two international human rights covenants as an example?
A: China has ratified ICESCR and signed ICCPR. ICESCR has already come into effect while ICCPR has not.
The two international documents have different requirements on state parties in their performance obligations. ICCPR is stricter and more standard than ICESCR in terms of the method and degree of performing obligations. Its main characteristics are: 1. Diversity of obligations. Apart from Article 40 (1), which provides for the obligations for state parties to submit reports, ICCPR has in its First Optional Protocola1 and Second Optional Protocol2 provide for the procedures of individual claims3, interstate claims4 and the Human Rights Commission investigation procedures; 2. Timeliness in the performance of obligations. ICCPR does not only require state parties to perform their obligations immediately but also ensures the implementation of the covenant in their respective countries through effective legal procedures.5 3. Reality of obligations. ICCPR requires state parties to realize all the basic rights stipulated in the covenant through effective constitutional and legal procedures and to ensure the effective realization of the basic rights stipulated in the covenant.6
The Chinese government has already submitted its first report to the UN Economic, Social and Cultural Rights Commission on the implementation of ICESCR, detailing how the Chinese domestic laws ensure the implementation of all provisions of ICESCR. As ICESCR requires state parties to gradually realize the requirements, China has to adopt measures to ensure the economic, social and cultural rights of the people according to the realities of political, economic, cultural and social development at home. At present, China should further strengthen its legislation on social security and social relief and the protection of vulnerable groups so as to create a legal environment for promoting the realization of the economic, social and cultural rights.
As to ICCPR, there are many things that need to be studied, probably, China will make some reservations or explanatory statements when ratifying the covenant. Besides, it needs to amend the Constitution and part of the laws so as to bring the provisions of domestic laws into line with the requirements of ICCPR.
Q: What is to be done if the current Chinese laws are in conflict with the international conventions?
A:There are two cases in which China's current laws are in conflict with the international human rights conventions which China has ratified. One is that before ratification, China will make some reservations or make explanatory statements concerning matters that the domestic laws are unable to protect at the present stage and the fundamental conflicts of values between the domestic laws and the international conventions to be ratified, which will be withdrawn after the domestic laws have become mature. The second is that before ratification, China will revise or abrogate the current laws that come into conflict with international conventions but that must follow the provisions of the international convention so as to ensure the effective implementation of the international human rights convention. Once the international convention is ratified, there should be assumption, jurisprudentially and legally, that the domestic laws are identical with the international convention. Even if conflicts exist, the laws concerned must be revised to bring them into line in value.
Q: Usually, international human rights conventions have their corresponding mechanism of implementation. How do you evaluate these mechanisms? Do you think it necessary for China to borrow such mechanisms in adopting specific measures to ensure human rights?
A: Currently, there are a series of mechanisms for implementing the international human rights conventions. The international human rights conventions adopted by the UN have the following mechanisms for implementation:
1. Reporting system. International conventions usually require state parties to submit a report on the progress of adopting measures for implementing the obligations provided in the conventions to related human rights organizations according to their requirements and the established procedures. The system is the most important in ensuring state parties to perform their obligations. Article 40 (1) of the ICCPR provides: "The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: (a) Within one year of the entry into force of the present Covenant for the States Parties concerned; (b) Thereafter whenever the Committee so requests."
2. Communications submitted by a state party. Article 11 (1) of International Convention on the Elimination of All Forms of Racial Discrimination provides: "If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee. The Committee shall then transmit the communication to the State Party concerned. Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State."
3. Investigation by a specialized group of experts. It generally refers to a system of investigating into the violation of human rights or accusation of related organizations. The fact-finding tour is usually implemented by an expert team made up of a working group, rapporteurs, representatives or other professionals appointed by the UN and its related organizations. At the beginning of 1984, the UN fact-finding team was sent to Mauritania to carry out investigations into the vestiges of the slavery system.
4. Procedures on a particular theme. It refers to a procedure of UN human rights organizations for handling a given type of human rights violations worldwide according to a particular theme. The procedure was created in the 1980s, mainly to cope with the facts that some governments adopted the resistance or non-cooperation attitude that made the UN human rights organizations unable to get the specific information. In 1980, the UNHRC set up a working group on enforced or involuntary disappearance, which was the first such group for handling human rights violations based on a particular theme. In 1982, the UNHRC appointed a Special Rapporteur on extrajudicial, summary or arbitrary executions. This was the first time for the UN to appoint one person to study a given type of human rights violations worldwide. Then, it appointed a special rapporteur on torture, religious intolerance and mercenary system.
5. Communications from individuals. This is a system for individuals to complain about the state violation of human rights and seek relief. The first optional protocol to the ICCPR makes a principled provision on individual complaints. According to the protocol, the UNHRC accepts and reviews the complaints from victims who conform to the following requirements: the country concerning the complaint is a state party to a convention and the protocol; the complaint must be signed, without abuse of the right of complaint and conforming to the provisions of the convention, the complaint must be delivered directly by the victim; the complainant has exhausted the remedies that can be employed domestically and the matters involved in the complaint is not in another process of international investigation.
6. Examining Communications. This is a procedure of reviewing complaints about human rights violations submitted by individuals or groups. Currently in force are "728F Procedure," "235 Procedure," "503 Procedure" and "Optional Protocol Procedure." The first three deal with human rights violation complaints not provided in the convention. The purpose of review is to promote human rights protection and fully display the roles of the UN organizations in human rights protection.
7. According to Chapter XIV, the International Court of Justice (ICJ) set up after World War II has the judicial and advisory jurisdictions. But only UN member nations are allowed to submit disputes for settlement at the International Court of Justice. Almost all international human rights conventions provide that the disputes with regard to convention interpretation, application or implementation, if no other means to settle, should be submitted to the International Court of Justice for handling or ruling. Besides, UN organizations or special organizations have the right to request for advisory opinions from the International Court of Justice. The advisory opinions offered by the International Court of Justice include Advisory Opinion on Reservations Concerning the Prevention and Punishment of the Crime of Genocide and the Advisory Opinion on the Legal Consequence of South African Continuing to Stay in Namibia (Southwest Africa) on Countries. Usually, the ruling by the ICJ concerning human rights disputes has a certain degree of binding force, but the advisory opinions are not legally binding and can serve only as a reference by UN organizations or special organizations.
8. Measures of Sanctions. According to the provisions of Chapter VII of the UN Charter, economic, diplomatic or more or less military actions may be adopted as a means of sanctions on the acts that threaten and sabotage peace. After World War II, sanctions applied in the area of human rights include the lasting and overall sanction by the international community on the South African racist regime and the sanctions on Iraq for invading Kuwait that led to the threatening of the regional peace and security.7
All the above mechanisms are at the international law level and play the role of ensuring, to varying degrees, the implementation of international human rights conventions.
China has basically adopted the reporting method to report how the international conventions approved are implemented in China. This is a manifestation of China's respect of common international practice in the areas of human rights protection. At the same time, it is a demonstration of China's stand of independence and its advocacy of settling human rights disputes within the scope of State sovereignty. China has not recognized other implementation mechanisms.
Q: What are international conventions devoted to the protection of vulnerable groups? What conventions China has ratified in this regard? What problems that merit attention in protecting the vulnerable groups in China?
A: Vulnerable group is not a very scientific and strict legal concept. But in the science of law, it often refers to people who cannot effectively exercise their rights by relying on their own or who are unable to enjoy the de facto equal rights as others. The composition of such groups is very complicated. It may refer to aged people, people with disabilities, children, hard-up people or women victims. With regard to legal principle, it usually calls the people groups who are susceptible to rights infringement by state power, but are unable to get legal assistance. Besides, minority ethnic groups, criminal defendants and criminals serving prison sentences are also frequent subjects of discussion as vulnerable groups.
Strictly speaking, there is no human rights law directed at vulnerable groups. All the international human rights conventions adopted by the United Nations, including ICESCR and ICCPR, concern the protection of the rights of vulnerable groups.
Of course, as the legal principle is concerned, there are some international human rights conventions that may be regarded as in favor of vulnerable groups, such as CERD, CEDAW, CAT and CRC.
At present, what merits attention with regard to the protection of vulnerable groups in China should include medical insurance of rural and urban residents, social relief of people in the rural and urban areas with special difficulties. What merits attention with regard to effective prevention of rights infringement by state power should include the legal rights of criminal defendants, criminal suspects, people serving prison sentences and people in detainment. The living conditions of vagrants in cities should also receive attention. Besides, the legal relief of citizens should be thorough and ultimate in nature and should be controlled by laws concerning abuse of power or trespassing of power in order to protect the basic human rights of vulnerable groups.
Q: What are the achievements China has made in human rights protection over the past few years and what improvements are needed?
A: China has made significant progress in human rights protection. It is, first of all, manifested in legislation. The 2004 Constitution amendment included the provision "the State respects and protects human rights," thus putting the protection of human rights on the constitutional basis. Besides, China has promulgated a large number of laws and regulations to protect the political, economic, cultural and social rights of the citizens, such as the Labor Law, the Labor Contract Law and the Employment Promotion Law, the Property Right Law, the Law on the Protection of the Rights and Interests of Old People, the Law on the Protection of the Rights and Interests of Women and the Law on the Protection of People with Disabilities. These laws and regulations have promoted and stimulated the development of human rights cause in China. In the areas of law enforcement, the State Council issued the Outline Program for the Promotion of Administration according to Law, making the administration by law, the protection of the legitimate rights of the people in exercising administration as the central task of governments at all levels. Lastly, in the area of adjudication, China has promulgated the Civil Procedure Law, the Criminal Procedure Law and the Administrative Procedure Law, which have brought under good protection the rights of the people to complain. Of late, the Supreme People's Court has retrieved the rights of approval of death sentence originally exercised by the Higher People's Courts at the provincial level. All these are the outstanding achievements China has made in human rights protection.
Of course, much remains to be done in this area. First of all, China should ratify the ICCPR in line with the development of human rights protection in China. It should further improve the legislation in social security so as to bring under effective legal protection medical care, education and old age support. It should also strengthen the important role of administration of justice in human rights protection and establish the appeal procedure of constitutional law and human rights procedure so as to further promote the healthy and orderly development of human rights cause in China.
1. The protocol was adopted by the UN General Assembly Revolution 2200A (XXI) resolution on December 16, 1966. It officially came into effect on March 23, 1976.
2. The UN adopted the second optional protocol to ICCPR aimed at abolition of the death penalty on December 15, 1989. But up to the present, there are few countries participating.
3. Based on the individual appeal in the first optional protocol of ICCPR, the protocol provides: "State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant."Statistics show that up to March 1991, the UN Human Rights Commission had reviewed 445 claims from 33 state parties. The Commission reviewed them and gave its views on 119 and confirmed that there were 93 cases that had violated the ICCPR. See: United Nations Human Rights Fact Sheets, No 15, 1st edition, Lund, edited by Raoul Wallenberg Institute of Human rights and Humanitarian Law.
4. Article 41 (1) of ICCPR provides: 1. A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. Statistics show that by the end of December 31, 1990, 30 countries had accepted the obligations.
5. Article (1) of ICCPR provides: "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
6. Article 2 of ICCPR provides: "Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant." And "(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted."
7. See Liu Shengping and Xia Yong, Human Rights and the World, People's Court Press, first edition, January, 1996, pp. 194~204.