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Tom ZWART China's Role in Advancing International Human Rights since World War II
September 17,2015   By:CSHRS
China's Role in Advancing International Human Rights since World War II
 
Tom ZWART
 
Netherlands
 
\
Mr.Tom ZWART,China's Role in Advancing International Human Rights since World War II
 
 
1. Introduction
 
This year we commemorate that fascism was defeated seventy years ago by the Allied Powers, a coalition of which China was a key member. From 1937 to 1945 the Chinese people fought and resisted the Japanese invasion with determination, resilience and enormous courage. Victory was achieved against massive odds. While China was still recovering from colonialism, it was facing a very well equipped and technologically advanced enemy, and initially it had to do so entirely on its own. For this it paid a very heavy price: 14 million Chinese were killed, millions had to flee, and the country's emerging infrastructure was completely destroyed. The memorial erected to commemorate the Nanjing massacre serves as testimony to the atrocities the Chinese people had to endure. However, not for the first time the moral conviction and mental courage of the Chinese people did prevail.
 
By combating the forces of reaction in East Asia China was not only trying to defend and liberate its own people, but it also made an important contribution to the joint efforts by the Allied Powers against the countries of the Axis. Since China was holding down large numbers of Japanese troops on its mainland, the western Allies were free to commit their troops to other theatres. China therefore contributed in an important way to the common good as an Allied Power belonging to the same league as the U.S., Britain and the Soviet Union.
This is not, however, how China's role has often been perceived in the North. Northern commentators often seem unaware of China's strategic importance for the war efforts of the Allied Powers; they have no idea how much suffering the Chinese people had to endure as a price for resisting the forces of evil; and they fail to recognise that China took on the fascist warmongers already in 1937, the year in which the Northern allies still believed that the threat would go away by appeasing the aggressors.
 
Fortunately, some influential Northern historians have started to recognise the crucial importance of China's heroic war effort. Thus, the Oxford history scholar Rana Mitter does justice to China's historic role in combating fascism in his book called China's War with Japan, 1937-1945, The Struggle for Survival.1 In the book he makes clear that by resisting the Japanese invaders the Chinese leaders were not only serving China's own interest, but were also contributing to the general interest by playing their part as a constructive member of the Allied Powers alliance. This general interest dimension was even better expressed by the author in the title of the American edition of the book: Forgotten Ally: China's World War II1937-1945   
 
The organisers of this year's Beijing Forum on Human Right have taken the very fortunate decision to choose the relationship between the defeat of fascism during World War II and the subsequent emergence of human rights protection as its theme. There is a remarkable parallel between the two. As it did during World War II, China is and has been playing a decisive role in developing international human rights policy. Its efforts are not only meant to serve the interest of the Chinese people, but also the common interests of the wider global community. In addition, as has been the case with China's efforts during World War II, they have not always received the attention and appreciation they deserve from Northern commentators.
This paper is a modest attempt to counter that trend, by laying out a number of China's human rights efforts at the international level. It proceeds in six sections. In section 2 the contributions made by Zhang Peng Chun to the Universal Declaration of Human Rights (hereafter: UDHR) will be highlighted. Section 3 is devoted to the Chinese preference for harmony and dialogue over confrontation and adverseness. Section 4 will deal with China's position that human rights are both universal and country-specific, while section 5 will describe the value China attaches to duties as complements to rights. Section 6 contains some concluding observation.
 
2. The alternative human rights approach laid out by Zhang Peng Chun
 
During the negotiations on the UDHR, China was being represented by Zhang Peng Chun, who is known in the North as 'P.C. Chang'. During the discussions, Zhang succeeded in sketching a vision on human rights which serves as an alternative to the liberal model.
 
Thus, Zhang stressed that a human being at all times has to be conscious of other persons, in whose society he lives,1 which is encapsulated by the notion of ren or 'two-man-mindedness'.      This 3 notion of consciousness of one's fellow man, 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 fulfilment leads through commitment to community as opposed to selfishness and isolation.  Zhang expressed the view that the UDHR should aim for the humanization of man.  Therefore, at Zhang's insistence, ren was included in the UDHR and appeared both as 'conscience' and as 'the spirit of brotherhood' in Article 1.      According to Zhang, the notion of brotherhood 7 matched the Chinese concepts of li, or propriety, and ren, the considerate treatment of others.
 
Through his interventions in the debate, Zhang laid out the ground work for an alternative approach to human rights which merged the strengths of Confucianism and human rights theory. At first sight, Confucianism did not seem to have a place for human rights because of the individualism and autonomy put forward by liberal human rights theory. However, Zhang came up with a new approach which projected the strong points of Confucian family relations on the 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 into gong de, i.e. civic morality. Instead of 8 relying on right-bearing individuals, Zhang focused on role-bearing persons.
 
This approach deserves to be further elaborated. As Liu has pointed out, Zhang, in order to make his points, had to translate Chinese philosophical concepts in a way which would appeal to the schemata of his diverse audience. Liu shows that he did impressive pioneering work in this area,1 but sometimes his efforts did not pay off. Thus, Zhang had to accept that in Article 1 ren was being translated into 'conscience', which does not entirely do justice to the term.    In addition, the Summary Records were no verbatim reports, which meant that large parts of the discussions were not preserved for posterity. Finally, it looks as though the note takers were sometimes confused by his observations.  Nonetheless, Zhang succeeded in making clear that alternatives to liberal human rights theory are possible and viable.
 
Through his interventions Zhang added a community dimension to the UDHR. This community dimension of ren is 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.   Under Article 1, the beneficiaries of rights are discouraged from using them while disregarding their communities, and from pursuing their own self-interests at the expense of these 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."
 
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.      According to Morsink the word 'alone' indicates an organic connection between the individual and the community to which he or she owes duties. According to Morsink, 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 8 their respective communities.
Zhang's approach had three major advantages. First, he 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. Second, since he used the debates on the UDHR as the launching pad for this alternative approach, it has become part of this founding document and its status equals that of the liberal model. Third, Zhang injected Confucianism into human rights theory rather than making it subservient to liberalism. Many commentators have tried to read liberal human rights ideas into classical Chinese thought, especially Confucianism. What these commentators are actually doing it to put classical Chinese thought into a liberal mould. Zhang, on the other hand, has succeeded in enriching human right theory by adding Chinese ideas and notions. In this way Chinese thought is put on a par with liberal philosophy, rather than being made subordinate to it.
 
3. 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. At the international level, China has also consistently promoted dialogues and exchanges of good practices between different cultures instead of confrontation and exclusion.1 According to former Vice-Premier and Foreign Secretary Huang Ha, it is normal that countries have different human rights attitudes, considering their different historical developments, social systems, cultural traditions and religious beliefs. Sincere and honest talks on the basis of equality will lead to finding a mutual understanding of an
common ground between these different views. Therefore dialogue rather than confrontation should 2 be promoted.
 
As then Foreign Secretary Tang Jiaxuan has rightly pointed out, the atmosphere of constructive harmony promoted by China stands in stark contrast to the confrontation espoused by other participants in human rights discourse. Many international NGOs in particular engage in the 'naming and shaming' of states which in their view fail to live up to their human rights obligations. In so doing, they lose sight of the fact that many countries are willing to resolve differences in the human rights area, as long as they will be treated with respect as part of a genuine effort to find common ground.
 
Choosing dialogue instead of confrontation does not only lead to a different tone and format, but also serves a different end. 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.      
 
Generally, Northern states seem to be strongly attached to promoting their own position and using it as a benchmark to judge others, at the expense of finding common ground, which may explain why some of the human rights dialogues are not very fruitful. This demonstrates that the ambitions are different. While Northern states are uncompromising about their own stance on human rights, China is keen on achieving harmony and therefore attaches less value to human rights dogma.
 
A major advantage of the dialogue model promoted by China is that it serves as a very effective antidote for the legalism which is dominating Northern human rights discourse. The term 'legalism' was coined by the American scholar Judith Shklar to describe an ideology which sees law not as a means but an end; regards politics as being inferior to law; associates law with justice and politics with expediency; and regards law as neutral and objective, while portraying politics as the result of competing interests and ideologies. 1 By embracing legalism, Northern human rights experts have put the human rights discourse on legal autopilot. Consequently, more effective ways to protect human rights than by enforcing them in courts of law are no longer part of the debate.
 
4. The dialectics of universalism and contextuality
 
China has consistently taken the position that human rights are both universal and country-specific. Thus, in a letter of congratulations to the China Society for Human Rights Studies in 1998, President Jiang Zemin made clear that, since the founding of the People's Republic and especially since Reform and Opening Up, China has combined the universality principle with China's specific national conditions. In a similar letter of congratulations to the China Society for Human Right Studies sent in 2008, President Hu Jintao stated that China believes that respect for the universal principles of human rights goes hand in hand with considering the fundamental principles of each country. During a press conference in the White House in Washington DC in 2011, President Hu Jintao explained that China recognises and respects the universality of human rights while emphasising at the same time the need to take the different national circumstances into account.      
This connection between universal human rights and country-specific conditions has also been made very often at the UN level. Thus, in 2002, in the Third Committee of the General Assembly, China's representative Shen Guofang indicated that while China respects and endorses the principle of universality of human rights, it also believes that each country is entitled to choose how to promote and protect those rights on the basis of its national situation.  In 2005, China's representative to the Commission on Human Rights, Sha Zukang, noted that although human rights are universal, their protection cannot be uniform.       Therefore, as China's representative Liu Zhenmin stated in the Third Committee of the General Assembly in 2009, imposition of a single model of human rights promotion and protection must be avoided. As then Foreign Secretary Tang Jiaxuan made clear in the UN General Assembly in 2000, how to protect and promote human rights depends on the actual conditions and specific needs of a country. To arbitrarily impose a
fixed set of human rights rules, regardless of the differences in the specific environment and reality,8
will not serve the interests of the people of any country.
 
Critics have described the Chinese position as being culturally-relativist: they believe that China is willing to sacrifice the universality of human rights to political convenience and cultural excuses. However, the idea that human rights are both universal and country-specific, and that universalism does not require uniformity, is supported by the following elements of international human rights law.
 
First, the Chinese position builds on and is therefore justified by the UDHR. The UDHR was meant to be applied first and foremost by the people in their relationships with others1. 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. The need to give weight to the specific cultural, political and social context of the country concerned has been confirmed in several subsequent agreements, which serve as important tools for the interpretation of the UDHR.  
 
Thus, the requirement to take account of the particular cultural, social and political circumstances has been stated in paragraph 5 of the Vienna Declaration and Programme of Action. This provision stresses the importance of national and regional particularities and various historical, cultural and religious backgrounds. The Preamble of the African Charter on Human and Peoples' Rights indicates that the virtues of Africa's historical tradition and the values of its civilization will be taken into consideration while applying the document. According to Article 7 of the ASEAN Human Rights Declaration, the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds.
 
A similar approach has been developed by the European Court of Human Rights (hereafter: ECtHR) under the European Convention on Human Rights. According to the ECtHR, States Parties are allowed to a certain extent to make the application of the provisions of the European Convention subject to local cultural and social conditions. This leads to the recognition of a zone, called the 'margin of appreciation', in which the ECtHR will not enter. This margin of appreciation has become a vital element of the jurisprudence of the ECtHR and will therefore be put on a treaty footing.
 
Second, the Chinese position matches the requirements of public international law. Under general international law states enjoy discretion with regard to the implementation of treaty obligations within the national order.  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.  Therefore, the implementation of treaties, including human rights conventions, is governed by the principle of ‘domestic primacy’.
This domestic primacy has been reconfirmed by the implementation clauses of international human rights treaties. Thus, Article 2 (2) of the International Covenant on Civil and Political Rights (hereafter: the Covenant) obliges the states parties “to adopt such laws or other measures [emphasis added; TZ] as may be necessary to give effect to the rights recognized in the present Covenant”. Therefore the Covenant regards law as a means, but not the sole means to implement the treaty. Furthermore, the Covenant does not require the contracting states to grant individual enforceable rights to those who are under their jurisdiction. It is true that the Human Rights Committee has indicated that incorporation into national law of the Covenant guarantees may enhance their protection, but it has also made clear that Article 2(2) CCPR does not require such action.1 This 2 rebuts the view expressed by Seibert-Fohr that incorporation is required by the Covenant.
In addition, some provisions expressly require the states to take legal measures to implement their obligations, but these confirm the rule that in general they are free to choose the means they see fit. Consequently, both under public international law and the implementation clauses of human rights treaties the states parties enjoy discretion with regard to the means they would like to employ to meet their treaty obligations.        This means that they are free to take national cultural, social and political considerations into account during the implementation phase, as long as they meet the human rights obligations to which they have signed up.
 
Third, China is not claiming Chinese exemptionalism of exceptionalism: rather than considering country-specific implementation a Chinese prerogative, it supports the idea that all countries within the UN should be allowed to implement human rights within their own national context. Thus, as part of the Universal Periodic Review conducted by the Human Rights Council, China has been encouraging other countries to take their national conditions into account when implementing their human rights obligations.  Therefore, China's emphasis on the country-specificity of human rights does not mean that China considers itself subject to international rules which are different to those applying to other states.
 
Not only is the Chinese position warranted by public international law, it also has a major advantage: it serves to promote the universality of human rights through embededness. As has been indicated above, the UDHR was meant to be a people's document. Realising human rights was seen as the responsibility of the people themselves: they should apply them as part of their relations with others. Applying human rights in relations with others should be driven by an inner motivation. This calls for human rights which are embedded, i.e. which resonate with the values and norms of the people on the ground. Rather than serving as a Trojan horse to force societies to adopt a worldview other than their own, human rights should blend into the local social, cultural and political context.
 
The idea that human rights should be as close to the hearts and minds of the people as possible is supported by the research conducted by the American anthropologists Sally Falk Moore. Moore assumes that social fields are semi-autonomous.1 This means that these social fields are being regulated by a mix of informal rules such as customs, and externally imposed formal rules, such as state law. According to Moore, the existing informal arrangements are often stronger than the formal laws. Therefore, in order for these formal rules to succeed in engineering social relations, it is important that they tie into existing informal rules as much as possible. This supports the idea of implementing international human rights obligations within their local cultural, social and political context.
 
5. The Yin and Yang of rights and duties
 
In China, rights and duties are regarded as being inextricably linked. This is an important element of Confucianism, which has been reinforced by Marxism. Not surprisingly, China has also supported attempts to elaborate on that link in documents at the international level. Thus, China has actively supported the idea of drafting a Declaration on Human Social Responsibilities within the UN Commission of Human Rights. The aim of this initiative was to show that human rights are not only about individual claims cast in law, but also about the need to reach out to other human beings, as prescribed by ethics and morality.      
 
To explore the idea of such a Declaration, the Commission on Human Rights appointed a Special Rapporteur to undertake a study on human rights and human responsibilities.  The Cuban Miguel Martinez, who was appointed to this position, produced a final report, which included a pre-draft declaration on human social responsibilities.      The Commission thereupon decided to circulate this pre-draft declaration among the UN member states and NGOs while inviting their input. However, this process was cut short when the Economic and Social Council decided to override the o Commission's decision at the initiative of the EU countries. These countries objected to the fact the pre-draft declaration made the enjoyment of human rights conditional on fulfilling obligations.  This EU initiative did not go down well with Southern members of the Council, not least because a questionable procedural strategy was used to achieve this result: as the representative of the UN Office of Legal Affairs explained, although overriding the decision of the Commission of Human Rights was within the competence of the Council, as it was the parent body of the Commission, such overrides are very rare.    It is clear that the EU resorted to this procedural device to stifle debate on an issue it did not like. In a powerful statement, Chinese Ambassador Zhang Yishanat used the 'Mr. Ye' metaphor to challenge the EU's questionable role in this. Just like Mr. Ye loved dragons until he actually met one, the EU loves free speech until it is actually used by someone to express ideas it does not welcome.11
 
However, states like China, which supported the Declaration of Human Social Responsibilities, were actually acting fully within the four corners of the UDHR. During the negotiations on this document, Zhang Peng Chen promoted the idea that the UDHR 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.  The duty of one 2 person corresponds with the right of the other.
 
Zhang clearly did not stand alone in this. There was widespread support among the delegates for including duties as complements of rights.3 It was not only expressed by the Chinese 4 and the Egyptian representatives,5 but also by the French,6 and the Australian representatives.7 Initially, the UDHR was even referred to as a declaration on rights and duties, probably because the pioneering document, the American Declaration of Rights and Duties of Man, also carried that name.9
 
Therefore, 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, did not come as a surprise. The importance of duties is also a common element in regional documents. The African Charter devotes even a separate chapter to duties,10 while these are also mentioned in Article 6 of the ASEAN Human Rights Declaration and Article 32 of the American Convention on Human Rights. The European Convention on Human Rights too recognises the importance of duties, which are labelled 'duties' and 'responsibilities'.
 
Not only does the link between rights and duties flow directly from the UDHR, it also has the advantage of assisting in combating the selfishness and insularity which may result from human rights. This is a concern which is not limited to the South, but which is also shared in the North. Audrey Chapman, for example, notes that there is a problematic imbalance between rights and responsibilities. In her view human right should develop into social covenants between interrelated persons through which they shape their rights and responsibilities. The Israeli-American sociology scholar Amitai Etzioni too believes that in the U.S. there is an imbalance between rights and responsibilities: Americans suffer from a strong sense of entitlement and a relatively weak sense of obligation. This can only be remedied by a greater willingness to shoulder communitarian responsibilities and a greater readiness to curb one's demands. Etzioni points out that the core of 13 such a commitment is not legal or governmental, but moral and community based.
 
In a recent book the American Confucianism scholar Henry Rosemont critiques the foundations of individualism.  He comes to the conclusion that the concept of the individual self is inadequate. Instead, he proposes an alternative concept of human beings which is inspired by the texts of ancient Confucianism. Rather than seeing themselves as autonomous individuals, Rosemont suggest that people should consider themselves and their fellow human beings as interrelated role-bearers. This vision clearly resembles that of Zhang Peng Chun.
 
6. Conclusion
 
As this paper demonstrates, China has contributed in very important ways to the development of international human rights since World War II. China's representative to the negotiations on the UDHR, Zhang Peng Chun, has laid the groundwork for an alternative human rights vision which values interrelatedness rather than atomism. China has promoted a model to deal with human rights issues which is based on harmony and dialogue, rather than confrontation and challenge. It has made a very convincing case that human rights are both universal and country-specific. And it has supported attempts to clarify the link between rights and duties.
These contributions to advancing international human rights after World War II are similar to the efforts China made during World War II: they are profound; they serve both the interest of the Chinese people and those of the wider global community; and they have gone largely unnoticed in the North. China should remedy this lack of awareness on the part of Northern human rights experts by flagging these achievements. As General Secretary Xi Jinping made clear during the National Conference on Publicity and Ideological Work in 2013, China should find innovative ways to make the outside world understand "stories of China and voices of China". Therefore, Chinese experts should not keep their ideas and concepts in the area of human rights to themselves, but share them with others by bringing them to the international marketplace of ideas.
The Cross-cultural Human Rights Centre, which was set up in Beijing on 24 September of 2014, by leading human right scholars from China, Africa, Europe and the US, would like to play a part in this as well. The role of the Centre is to highlight Southern views on human rights in a way which will encourage Northerners to pay attention to them. This means raising awareness of Southern concepts and accomplishments among the participants in the debate with the help of the same tactics, strategies and means that Northerners have been deploying so successfully themselves. The aim of the Centre is to give a voice to the Southern wisdom in the area of human rights in a way which Northern actors will find difficult to ignore. It will engage assertively and actively in the debate and it will resist Northern attempts to portray their views as being the sole truth.
 
(The author is Professor of Human Rights, Utrecht University; Director of the Netherlands School of Human Rights Research.)