A Rejoinder to China’s Response to UN Human Rights Experts

On Friday, June 26th, fifty independent United Nations human rights experts published a statement expressing “alarm regarding the repression of fundamental freedoms in China.” The statement calls for the implementation of immediate and decisive measures to protect against human rights abuses in the country. Among other things, the statement notes a range of concerns and urges China to permit independent experts access to the country to conduct independent human rights monitoring missions and calls on the UN Human Rights Council to consider mechanisms to monitor Chinese human rights behavior.

The Government of China was quick to respond. As a drafter and signer of the statement, I wanted to provide some brief background and a quick reaction to the main thrust of the Government’s response.

The UN System

The United Nations Human Rights Council is the central political body for human rights in the UN system and a subsidiary of the UN General Assembly. It is active as a monitor, if imperfect, of human rights worldwide. It evaluates and publishes reports on every government’s human rights practices through its Universal Periodic Review. Three times a year, the Council meets to consider contemporary human rights issues, adopting resolutions related to countries and topics of concern. It reviews reports of the UN High Commissioner for Human Rights, who acts in part like the UN’s lead executive and who advocates for human rights issues. It’s a complicated body with its share of politicization, as with all international organizations, and it’s also an easy body to criticize.

One of the responsibilities of the Council is the appointment of independent experts to evaluate issues of human rights concern. There are now over fifty such appointees who function either as “special rapporteurs” or “independent experts” who review specific topics and problematic countries or as  members of working groups on such issues as arbitrary detention, enforced disappearances, and discrimination against women and girls and persons of African descent, to name a few. These experts gather information, monitor and report on allegations of human rights abuses. Often these experts carry out country visits, and about 120 governments have issued “standing invitations” to us to visit (not that those visits always take place; there’s often an excuse…). These are mandates – the Council appoints the experts and the experts are expected to carry them out.

Statements and Actions on China

For the last several years, the UN Human Rights Council has observed increasing repression of human rights in China. It is, of course, a complicated and remarkable country, with a history and culture as rich as any on earth and a massive potential to influence the development of international law and institutions. On the one hand, the decades-long move out of extreme poverty through development has responded to the rights of people in China to enjoy economic rights that are enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. Indeed, China regularly highlights the strides it has made in development terms, elements of which are certainly praiseworthy (see the report of Professor Philip Alston, as special rapporteur on extreme poverty, from his visit to China in 2016). China has done remarkable things in other areas, as well.

Nonetheless, it is impossible to avoid the very serious ongoing allegations of human rights abuses under the authority of the Government of China.

We, as independent UN monitors, have regularly highlighted our concerns with the Government. All of our communications with the Government can be found at this database. Those communications (many of which are linked in the statement) have addressed concerns about repression of the Uyghur population in Xinjiang, the attacks on autonomy and protest in Hong Kong, the role of censorship in the country, the detention of lawyers and activists in Tibet and across the country, and many other issues of extremely serious concern. However, despite these communications, and regular rejection of our concerns by the Government, the Government does not have a standing invitation to special procedures and has not invited an expert focused on civil and political rights since 2005, when a mission concerning torture took place.

The call for such measures is not all that unusual. In fact, we took the same approach the previous day, calling for an investigation into the widespread threats in the Philippines. Such calls are a regular part of our work. Such monitoring is not an interference with the sovereignty of any State but an example of robust implementation of the mandates the Human Rights Council has assigned us. If we avoided this kind of monitoring, we would be abandoning our mandated responsibilities.

The same day we issued our statement, China quickly objected. Saying that the Government “categorically rejects and strongly condemns” the UN experts’ statement China called the statement an interference with its internal affairs. It also stated the following:

In recent years some Special Procedures “experts” have repeatedly abused their mandates out of ulterior motives and made press release based on unverified information to interfere with the sovereignty and internal affairs of States, to the extent of hijacking the work of the inter-governmental organization consisting of sovereign States. These acts have gravely breached the Charter of the United Nations, seriously undermined the credibility of the Special Procedures and aroused concerns from more and more States. The Human Rights Council must hold misconducts of “experts” accountable to ensure that the Special Procedures truly facilitate and contribute to the international human rights cause, instead of becoming obstacles to or undoers of human rights the world over.

A Brief Reply

It is entirely fair and even important for China to object and to identify any statements or allegations made in error. Experts on China, for their part, may wish to weigh in on the specifics of our statement and China’s response. But we make our assessments in good faith, and anyone who looks through the range of communications, whether by examining our press statements or communications in the database linked above, will see that we call out all sorts of government behavior, whether from democratic or authoritarian States. Indeed, many democratic governments wonder why we call them out when there are such serious examples of repression worldwide.

Much of the Government’s statement is consistent with past responses China has issued to human rights monitoring and criticism. However, the last line should be of particular concern to all those who support independent human rights mechanisms in the UN system – the threat to hold rapporteurs “accountable” for some kind of vague breach of standards. It’s true that the Council adopted a Code of Conduct in 2007 to guide Special Procedures, but there is nothing in that document that precludes the kind of statement we issued yesterday.

What’s more, there is nothing in our work that is contrary to the UN Charter or even the idea of “sovereignty” that some governments like to invoke in the face of human rights criticism. It is critical to recall that the corpus of obligations the world knows as “human rights law” involves obligations that States have accepted – whether through treaties or customary international law – to ensure that their own behavior inside their own jurisdictions meets fundamental standards agreed by States. Monitoring human rights is not some interference with state sovereignty or an “external intervention in China’s domestic affairs.” Monitoring human rights is the international community’s way to ensure that States meet their obligations to all people within their jurisdictions.

That oversight is obviously uncomfortable for many States, but it is the nature of the human rights system that the commitment to human rights means accepting that those obligations are international, owed to other States and to those subject to their jurisdiction. Human rights monitoring by its nature involves investigating the “internal affairs” of States. There is no magic wand of sovereignty that can wave that away.

UN Experts Call for Decisiv… by Just Security on Scribd

联合国专家呼吁采取果断措施保护中国境内的基本自由 by Just Security on Scribd

 

Image: Chinese President Xi Jinping makes a speech during the welcome banquet for leaders attending the Belt and Road Forum at the Great Hall of the People on April 26, 2019 in Beijing, China. (Photo by Nicolas Asfouri – Pool/Getty Images)

 

About the Author(s)

David Kaye

UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Clinical Professor of Law at UC Irvine School of Law, Formerly Served in the Office of the Legal Adviser at the State Department (1995-2005). Follow him on Twitter at (@davidakaye).