Home > PUBLICATIONS & RESOURCES > JOURNAL >

Connection Between Policies and Laws on Human Rights Protection: Case Study of the National Human Rights Action Plans
October 18,2019   By:CSHRS

Connection Between Policies and Laws on Human Rights Protection: Case Study of the National Human Rights Action Plans

ZHANG Wanhong* & WANG Ruoyin**

Abstract: China’s National Human Rights Action Plans connect policies and laws on human rights protection in terms of ideas, procedures, and contents. The functions of the connections are the guidance to local policymaking, the promise of state commitment, and the linkage to international human rights goals. At the practical level, the enhancement of the connection between policies and laws will promote the effectiveness of human rights protection. In order to improve the rationality of human rights policies, there should be more researches on National Human Rights Action Plans, and more public participation in the process of the Plan drafting.

Keywords: National Human Rights Action Plans ; human rights protection ; policy

Since 2009, China has issued three National Human Rights Action Plans (hereinafter referred to as the Action Plans). The Action Plans are rich in content and cover a wide range of areas. The formulation and revision of human rights protection laws, the responsibilities and policies of central and local governments, the participation of social groups and individual citizens in the cause of human rights, and the human rights supervision of the media can all be found in the Action Plans. Among them, as an important way of human rights protection, policies and laws are the focus of the Action Plans. In terms of the status and role of policies and laws, Professor Chang Jian believes that “China’s human rights protection policy at the present stage occupies a relatively more important position and plays a more important role. However, with the gradual completion of social transformation, its complementary or temporary alternative functions to human rights protection law will gradually weaken”1.The Action Plans link human rights protection policies with human rights protection laws and “realize the interaction between theoretical research and legislative provisions on human rights, and carry out arduous and gratifying exploration on the cause of human rights in China from a practical perspective”.2 This paper will examine the linkages between policy and law in the Action Plans from three aspects: approach, function and enlightenment.

I. Approaches of Linking Policy and Law in the Action Plans

The realization of human rights in China depends on policy decision-making and legal provisions. The Action Plans achieve sound connections between policy and law by exploring the common concepts, continuity procedures and complementary content of policies and laws.

A. Concepts interlinked

In the Action Plans, although human rights protection policies are diverse and human rights protection laws are universal, the two are interconnected in the conceptual recognition of sharing and co-governance, emphasizing grassroots units and protecting vulnerable groups. The ultimate goal is to adjust social relations under the guidance of the principles of equality and freedom and to guarantee the rights of all groups. Specifically, the conceptual link between policy and law in the Action Plans is embodied in three aspects.

First, co-governance and sharing, equal development. The universal realization of human rights needs to be based on economic and social development, and the healthy and rapid economic and social development cannot be separated from the primary protection of human rights.3 The five basic principles of the National Human Rights Action Plan (2016-2020) are lawful promotion, coordinated promotion, pragmatic promotion, equal promotion and concerted promotion. Among them, equal promotion emphasizes equal respect and protection for each individual’s human rights, while concerted promotion confirms the dominant position of various social subjects (including government, enterprises and institutions, social organizations, etc.) in promoting human rights. The National Human Rights Action Plan (2016-2020) clearly states in its objectives that the development achievements should be more equally beneficial, so that all the people will have a greater sense of gain from the country’s development, and that the concept of shared development is entrusted to the policy behavior of the action plan. Specific policy initiatives such as reform of the household registration system, the equalization of basic public services, and the establishment of a government-enterprise-public system of governance affirm the equal status of individual citizens and their equal participation in the cause of human rights. The legislation of Public Library Law and Public Cultural Services Guarantee Law suggests further consolidating citizens’ equal enjoyment of public services. In addition, the concept of shared governance is reflected in the policy projects in the “Belt and Road Initiative” area and legislative work of the National People’s Congress.

Second, we should attach importance to grassroots units and encourage participation. By reviewing the National Human Rights Action Plan (2016-2020), we can perceive the grassroots tendencies in the protection of human rights in China, which implies that the role of civil society is prioritized in human rights protection. In addition to the constructive role of social organizations in the implementation of the Action Plan in the final implementation and supervision section, the action plan, in specific action initiatives, also encourages and supports the participation of civil society forces in human health services (non-profit private hospitals), anti-domestic violence (women’s rights protection organizations) and guaranteeing the participation rights of the elderly (grassroots association for the aged), and international human rights exchanges and cooperation. Among them, the policy recommendations of supporting social organizations to participate in anti-domestic violence work have been affirmed by law in the National Human Rights Action Plan (2016-2020), which emphasizes the implementation of the Anti-domestic Violence Law. In addition, in the right of expression and supervision, the National Human Rights Action Plan (2016-2020) specifically proposes to amend the Administrative Reconsideration Law, affirming and guaranteeing the right of citizens and social organizations to supervise administrative organs through administrative reconsideration according to the law.

Third, we should pay attention to the disadvantaged and help the poor. In addition to listing the action of protecting the rights of vulnerable groups in the three existing Action Plans, special policies or legal guarantees for the rights of vulnerable groups have been put forward in various specific human rights guarantees. Taking the National Human Rights Action Plan (2016-2020) as an example, in terms of the right to education, it is clearly proposed that we should continue to strengthen policy protection in the areas of high school education in poor areas, exemption of tuition and miscellaneous expenses for students with financial difficulties, and the construction of rural teachers’ ranks. At the same time, in order to provide precise assistance, the policy of differentiated subsidy standards is put forward according to the hardship and distance of the school. In the protection of the rights of vulnerable groups in separate chapters, taking the protection of children’s rights as an example, it makes policy responses to the practical problems such as school bus safety, school security and school pressure, and forms policy interaction with the Outline for the Development of Children in China (2011-2020). Meanwhile, it demonstrates the attitude and determination to amend the Law on the Protection of Minors, thus realizing the linkage and interaction between policies and laws.

B. Continuation of procedures

The Action Plans can sort out the current human rights safeguard measures and put forward the future direction of action according to the existing problems. In the specific implementation of the plans, the continuity relationship between policy and law should not be neglected. Policies, especially local policies, have the characteristics of flexibility, grassroots feasibility and realistic response. They can respond to social reality in a timely and flexible manner and carry out relevant practical exploration. The characteristics of law lie in its stability, standardization and universality. Laws play a regulatory role in the formulation and implementation of local policies. In the Action Plans, priority is often given to the protection of new human rights issues through policy approaches. This point is particularly significant in dealing with temporary short-term problems. For example, one-time renovation of dangerous houses in rural areas and anti-seismic renovation of houses are only suitable for protection through local government policies because of the specificity of their objects and the short-term nature of their actions. In some long-term problems that need to be solved continuously, national policies are often preferred, such as dealing with the transfer of land contractual management rights for decentralized management and the hollowing out of rural areas, building a property rights system of natural resource assets for resource-intensive and sustainable development needs, and lifelong skills training of workers. From a long-term perspective, the experimental exploration of local policies can provide a sustainable and feasible resource reference for the legislative work in related fields. In the same period, policy actions can complement the unfinished matters of law, and adhere to the principle of adapting measures to local conditions, so as to realize the combination of human rights protection and local reality.

In general, the Action Plans are plans for human rights protection, and they should be implemented in policy and law practice. The evaluation of the Action Plans includes not only the evaluation of the implementation of human rights protection policies based on the effectiveness of established data, but also the evaluation of the legal provisions of human rights protection based on the observation of the workload of legislation and amendment of legislation. The evaluation results provide a direction for the next phase and future work of human rights protection. In this process, policy is the rudiment and forerunner of law. Its timely response to hot issues and exploratory experiments will consolidate the output of relevant achievements through the legislative process in the future.

C. Complementary contents

Compared with stable and sustained laws, policies are more timely and responsive, but the policies and laws under the topic of human rights protection are to serve the cause of human rights. The two are mutually supporting and complementary in content. The Action Plans can make full use of the characteristics of timeliness of policy and stability of law, consider the protection of human rights on hot and persistent issues. The links between policy and law in the content of the Action Plans are mainly reflected in two aspects, one is the vertical content continuation. Throughout the three Action Plans, we can see that some specific rights guarantee modes have undergone a process from policy protection to legal protection. Taking cultural rights as an example, from the first National Human Rights Action Plan (2009-2010) to establish a public cultural service system and a network of public cultural facilities, to study and establish a legal system for the protection of public cultural undertakings, to the National Human Rights Action Plan (2016-2020), to promote the Law on Public Libraries, the Law on the Promotion of Cultural Industry, the Law on the Guarantee of Public Cultural Services and the Law on the Promotion of the Film Industry. The second is the horizontal content supplement. Among the relevant provisions on the protection of rights, there often includes suggestions and urges for the perfection of existing laws, as well as prospects for future legal formulation and amendment, and also includes policy responses in the field of current centralized issues. For example,in the part on environmental rights, the first one clearly implements the Environmental Protection Law and the Air Pollution Prevention Law, perfects the supporting system of environmental public interest litigation, and promotes the legislative process of water pollution, soil pollution and nuclear safety law in an orderly manner. The latter eight items are detailed policy suggestions and normative indicators for the specific problems currently faced, such as pollution prevention and control of atmosphere, water, soil, hazardous waste, marine resources environmental protection, energy structure, ecological construction and environmental monitoring system. In addition, procedural assessment of the Action Plans, including legislative and policy assessments, adopts both internal and external approaches, and supports third-party assessment mechanisms.

II. The Functions of the Action Plans in Linking Policies and Laws

The Action Plans clearly reflect the concerted relationship between human rights protection policies and laws. Through this connection, we can achieve linkage at the local, central and international levels, better fulfill the purposes of the Action Plans, and promote the practice of human rights protection in China.

A. Identifying policy directions and urging local implementation

The Action Plans are a summary and integration of human rights in current national legislative and administrative acts, and also a response to new human rights issues arising in changing societies. The realization of this response needs to be achieved through the formulation and improvement of policies and laws. The formulation and improvement of relevant policies and laws should be clearly defined in the Action Plans. On the one hand, they can provide ideas and guidance for the policy actions of local administrative organs and legislative acts of legislative organs. For example, in terms of the protection of the right to education, the National Human Rights Action Plan (2016-2020) stipulates that “to promote the gradual implementation of uniform standards for the establishment of primary and secondary school teachers and staff throughout the country”, and clearly puts forward the policy direction of local governments in the establishment of standards for primary and secondary school teachers and staff. On the other hand, it can give local warning in reverse, so that the relevant departments of local governments have to consider human rights issues when making decisions on rights-related projects listed in the Action Plans, so as to make the local human rights monitoring data present a good situation.

The extent to which the Action Plans link policy and law at the local level depends on two factors. First, the central government’s attitude towards the implementation of the Action Plans is clear and positive. The main formulator and auditor of the National Human Rights Action Plans in China are the joint meeting mechanism of the National Human Rights Action Plan. The majority of its members are the ministries and commissions of the Central Government. Therefore, the Action Plans embody to a great extent the attitude and principles of the central government in the field of human rights. The implementation of the policies advocated by the Action Plans will inevitably undergo a top-down mandatory process. The implementation at all levels of the administrative system is conducive to urging governments at all levels to make human rights-related decisions. Second, whether the implementation of local governments is effective or not, we should establish corresponding safeguard policies, laws and regulations to ensure and evaluate the effectiveness of local governments’ implementation, such as incorporating human rights safeguard monitoring data into local performance appraisal, and upgrading local effective policies into local legislation, so as to better achieve the role of standardization and supervision, and consolidate the results of practice.

B. Firming the human rights stand and monitoring national commitments

At the national level, the National Human Rights Action Plan not only demonstrates the attitude and commitment of the state in respect of the protection and realization of human rights, but also supervises the attitude and commitment by directly defining legislative responsibilities and implementing policy initiatives. Domestically, the Action Plans serve as a model for local action that attaches importance to human rights, and they provide a comprehensive overview of the objects of relief requests for individuals whose rights have been violated. At the international level, the Action Plans provide the initiative to build a policy and legal system to demonstrate China’s commitment to human rights to the world. On the one hand, the Action Plans are a calling card in China’s strategy to enter the international mainstream stage, because “using human rights discourse to promote the development of human rights mainstreaming has become a necessary condition for China to compete in the international arena”.4 On the other hand, the human rights action plan can promote the international community’s rational understanding of China’s human rights situation because of its unique national characteristics, and the international community can also claim corresponding rights and interests based on the national human rights commitments in the Action Plans. For example, in the foreign investment activities of Chinese enterprises, the invested country may make corresponding complaints on the violation of local laws and derogation of human rights by Chinese enterprises in their investment activities in the country by relying on the relevant contents of the National Human Rights Action Plan (2016-2020).

C. Consideration of human rights standards and convergence of international objectives

Respect, protection and promotion of human rights are not only actions within countries, but also initiatives and pursuits of international policies and conventions. There should be no distinction among countries’ different ideologies. The concept of human rights is universal, but its specific connotations are inevitably different due to the different political, economic and cultural backgrounds of different countries. For example, the right to a basic standard of living must be closely related to the level of national economic development. In other words, the Universal Declaration of Human Rights and the international human rights treaty mechanism provide the soil for basic human rights concepts, and the specific actions of various countries in protecting human rights are to breed diverse human rights systems in this soil. Comparing and investigating the proper meaning of human rights and exploring the potential of human rights protection has increasingly become an important way for a country to enter the stage of world development. Considering human rights standards, thinking about international human rights policies and laws can promote the convergence of national action and international action. The 17 sustainable development goals recognized by the United Nations Sustainable Development Summit in 2015 are reflected in China’s third National Human Rights Action Plan. For example, under the guidance of the goal of poverty eradication, China proposes to achieve the goal of poverty alleviation in rural areas by precise poverty alleviation. In terms of the implementation of conventional obligations under international human rights treaties and international human rights exchanges and cooperation, the National Human Rights Action Plan (2016-2020) is taken as an example: in this part, the plan of action elaborates on the submission plan of the implementation report, which clearly states that “it is necessary to create conditions for ratification of the International Covenant on Civil and Political Rights”; it shows the willingness to provide human rights technical assistance to the outside world, which corresponds to the partnership to promote the achievement of sustainable development goals; it foresees the upcoming human rights forums and seminars to promote regional cooperation and seminars on human rights; for the first time, it is clear that China’s overseas enterprises should be promoted to fulfill their social responsibilities, which shows that China has attached great importance to the international appeal for business and human rights and consciously linked up with international human rights actions and objectives; the plan to support and promote the participation of civil society organizations in international human rights exchanges and cooperation emphasizes inclusive partnerships among governments, the private sector and civil society.

III. Enlightenment of the Action Plans Linking Policies and Laws

The Action Plans play an irreplaceable role in linking human rights protection policies with human rights protection laws, but how to achieve the effectiveness, rationality and legitimacy of human rights protection through this link needs further discussion.

A. Strengthening linkages and integration to enhance the effectiveness of human rights protection

The link between human rights protection policies and human rights protection laws, which is based on the Action Plans, is necessary and needs to be further strengthened. To improve the effectiveness of human rights protection, we should not only “refine” the human rights and their safeguards in the Universal Declaration of Human Rights and international human rights conventions in an all-round way to ensure the fundamental direction of human rights development and the effectiveness of action, but also make a comprehensive study of the domestic political, economic and cultural background and existing human rights policies and laws in order to realize the effective integration of international human rights concepts and China’s social reality. At present, China is in a new period of development. The diplomatic activities such as the Belt and Road Initiative need our country to maintain the image of a responsible great power. According to the actual situation, strengthening the links between domestic and foreign policies and laws in the Action Plans “has a significant effect on the integration and interpretation of the ‘human rights’ of the domestic policies and the improvement of the international human rights image”5.

In the process of integration, we should not only consider the Universal Declaration of Human Rights, the core human rights conventions that our country has ratified and acceded to, the international human rights mechanisms and the sustainable development goals of the United Nations, but also learn from the good practices of foreign countries and the experience gained in our exchanges of economic and cultural cooperation with foreign countries: we should grasp the core concepts and affirm the trend of human rights mainstreaming; explore the road of human rights development with Chinese characteristics, rationally balance the values of collectivism and individualism; earnestly implement the international human rights treaties that we have acceded to and actively promote international human rights exchanges and cooperation; and strive to create conditions for ratification of new human rights treaties. The National Human Rights Action Plan (2016-2020) proposes that we should create conditions for approving the International Covenant on Civil and Political Rights; attach great importance to the policy and legal basis of both sides in foreign economic and cultural cooperation; “promote Chinese overseas enterprises to abide by the laws of their host countries in foreign economic and trade cooperation, aid and investment, and fulfill their social responsibilities”.6 In terms of integration with domestic history and reality, policies and laws, we should pay attention to the balance of the contradiction between central and local governments. China is a vast country with different levels of human rights protection and development speed in different regions. It is difficult for the central unified policy to take into account the situation in different regions. It is imperative for the Action Plans to seek a balance between policies and laws between the central and local governments in the context of the real society in order to achieve ef-fective human rights protection. The National Human Rights Action Plan (2016-2020) expresses the responsibilities of governments at all levels, which is, “local governments, central authorities and relevant departments of state organs at all levels should formulate implementation plans of the Action Plans in accordance with the characteristics of each region and the responsibilities of each department, so as to ensure the smooth completion of the objectives and tasks of the Action Plans”.7 This provision reflects the balance between central and local Action Plans, i.e. unity and diversity, concept and reality, and promotes the effectiveness of human rights protection.

B. Paying attention to learning and research, and enhancing the rationality of human rights protection policies

The rationality of policies and laws in human rights protection is inseparable from the study and research of human rights concepts and the essence of human rights Action Plans. As far as the current situation is concerned, local government staff and deputies to the NPC congresses at all levels still do not learn enough about the Action Plans. This is reflected in the inadequate attention paid to the role of the Action Plans in guiding policy, resulting in conflicts and contradictions between the policy and the Action Plans. The Action Plans incorporate human rights education as an important part of the learning of national staff and for the use, but they do not propose criteria for testing learning outcomes. In the past 10 years, China has completed the formulation of three plans and evaluated the implementation of the first and second Action Plans. The study of the Action Plans and the promotion of human rights education should not be limited to expanding the popularization of human rights awareness and related infrastructure construction. The effectiveness and impact of learning and education should be assessed in order to truly promote the subjective initiative of national staff in their daily work and respect and protect human rights.

At present, the study of the Action Plans focuses on three aspects. First, it compares and studies the functions and characteristics of the existing human rights Action Plans in formulation and practice, so as to show the path for the development of human rights with Chinese characteristics, enhance human rights self-confidence, and further promote relevant departments to pay more attention to the problems in human rights practice; the second is to make a comparative investigation of human rights Action Plans at home and abroad, and then make suggestions for the formulation of China’s National Human Rights Action Plans. The third is to make a deep investigation of the responsible groups of some actions or actions in the plans in order to clarify the specific capacity and level of action in various fields. However, the current research efforts on systematization and quantitative evaluation are still insufficient. In the future, we need to pay more attention to the learning and research in the field of human rights protection, explore the construction of human rights think tank and human rights action plan resource bank, summarize the efforts of human rights action plan at home and abroad, and reduce the duplication of human rights plan interpretation; at the same time, based on the existing human rights protection measures, we should make a reasonable exploration on the formulation of future human rights action plan; establish a feasible evaluation system for local human rights protection to deal with the lack of openness in the current evaluation process and insufficient public participation in the implementation of the plan, and further clarify the evaluation indicators. These specific measures will be of great benefit to the study of local governments and scholars, as well as to the improvement of the rationality of human rights protection policies and laws.

C. Expanding social participation and responding to people’s expectations for a better life

Expanding social participation is the proper meaning of conforming to the development trend of international human rights mainstreaming. In the three existing Action Plans, the use of terms such as “social forces” and “social groups” has gradually increased. Although the majority of the members of the current joint meeting mechanism of the human rights action plan are central government departments, many social forces have the opportunity to participate in the consultation stage for the formulation of the plans, based on the positive attitude of government departments on hot issues. Experts and scholars’ theoretical research and grassroots investigating results provide outlines of enlightening significance. NGO seminars and aid practices are at the grass-roots level, and to some extent, they can provide policy recommendations that more directly reflects people’s wishes and needs. The media can also promote the progress of human rights protection through relevant reports.

The following aspects need attention. First, to improve public awareness. Since the Action Plans are an integral part of the human rights protection policy, before the dust of the plan has settled as a policy tool, public announcement and opinions collection procedures should be carried out; and as a means of human rights protection, the general public should make bottom-up choices and judgments, rather than being limited to the top-down implementation of government staff. The second is to strengthen contacts and cooperation with human rights NGOs to achieve information exchanges. For example, we should strengthen the professional interaction between non-govern-mental organizations in the field of human rights, such as organizations for the protection of workers’ rights and disability rights protection organizations, promote better consideration of the human rights needs of cross-groups, promote technical cooperation between disability rights protection organizations and sign language organizations or legal aid organizations, and enhance the understanding of organizational service groups. We should also deepen the links between human rights NGOs and “upstream and downstream” organizations or institutions vertically. Third, the media should give full play to their own advantages and promote the implementation of the human rights action plan through responsible coverage. Journalists should “change their style of work, change their style of writing, bend down, sink down, check the facts, tell the truth and move the truth”8, and play a role in learning, education, implementation and supervision,9 especially in reviewing and supervising the implementation of policies and laws for human rights protection, so as to promote the cause of human rights protection.

(Translated by LIU Dong

 

* ZHANG Wanhong ( 张万洪 ), Professor, Executive Director, Institute for Human Rights Studies, Wuhan University

** WANG Ruoyin ( 王若茵 ), Master of Law, School of Law in Wuhan University.

1. Chang Jian, “Scientific Understanding and Grasping of China’s Human Rights Guarantee Policy”, Theoretical
1 Exploration
5 (2013).

2. Zhao Shukun, “Viewing Human Rights Practice in China from China’s Two Human Rights Action Plans”,
 Modern Law 2 (2013).
 
3. Zhang Wei and Zhang Aitong, “The Relationship between Human Rights and Development: An Analysis of the Perspective of Chinese Scholars and the Practice of the Chinese Government”, Human Rights 1 (2017).
 
4. Zhang Wanhong, “On the Mainstreaming of Human Rights”, Law Review 6 (2016).
 
5. Xu Yao and Han Xue, “International Linkage and Local Integration: An Investigation and Reflection on National Human Rights Action Plans”, Journal of Guangzhou University (Social Science Edition) 11 (2017).

6. Information Office of the State Council, National Human Rights Action Plan (2016-2020) (Beijing: People’s Publishing House, 2016), 45.

7. Ibid.
 
8. Xi Jinping, “Xi Jinping emphasized to adhere to the right direction and innovate methods and means to improve the guiding power of news and public opinion dissemination at the Communist Party’s news and public opinion work symposium”, People’s Daily, February 20, 2016.

9. Tong Bing, “The Responsibility and Mission of the News Media to Promote China’s Human Rights Cause - Reading the Experience and Suggestions of the Third Phase of China Human Rights Action Plans”, Journalist 3 (2017).
 

 

Chinese Dictionary:

@cn_humanrights

For the latest news and analysis from our

reporters and editors:Staff Twitter List>>

E-mail:chinahrs@public.bta.net.cn