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Formal cooperation lacks substance

October 24, 2000

China sets low level for terms of agreement with UN High Commissioner

 

 

On November 20, the UN High Commissioner for Human Rights and the Chinese government signed a Memorandum of Understanding (MoU) to initiate human rights cooperation programs in China. Beatrice Laroche looks at the significance of this, and assesses the prospects for the programs.

 

 

 

 

 


 

 

The assistance of the Office of the High Commissioner for Human Rights (OHCHR), with its long experience of practical human rights assistance, is crucial if China is to improve protections for human rights and reform laws and institutions that perpetuate rights abuses. But the question is whether the signing of the MoU represents a real acknowledgment of China’s needs in this area on the part of the Chinese leadership, and whether it will actually permit and support programs that truly address them.

UN High Commissioner for Human Rights Mary Robinson expressed optimism following the signing of the MoU: “This is a very significant move by China and I’d like to acknowledge it as such.” Yet, two years of negotiations between her office and the Chinese government only resulted in a very weak document that frames the technical cooperation in disturbingly relativistic terms and does not provide for substantive activities.

The negotiation process began on September 7, 1998, during the High Commissioner’s first visit to China, when she and the government signed a Memorandum of Intent to reach an agreement on technical cooperation. In March 1999, two OHCHR officers accompanied by two external consultants conducted a two-week Needs Assessment Mission in China in order to select priority areas of cooperation. The resulting draft MoU was conveyed to the Chinese government for consideration. In March 2000, the High Commissioner attended the Workshop on Regional Cooperation for the Promotion and Protection of Human Rights in the Asian Pacific Region in Beijing, reportedly hoping to sign the MoU. But this did not happen. Instead, reference to it in the US-sponsored draft resolution on China at the UN Commission on Human Rights (CHR) was removed. In September 2000, two OHCHR officers, this time without external consultants, conducted a three-day “project formulation mission” in Beijing to renegotiate the MoU.

Such a protracted negotiation process is in line with China’s usual way of dealing with international human rights mechanisms. It seems clear that the government stalled negotiations in order to buy time, take the upper hand and insist on its own terms. The Chinese authorities feared that, had the agreement been signed in March 2000, at the time of the CHR, this might have been interpreted as being a consequence of American pressure. Yet even after the CHR session was over, the Chinese government postponed signing. Similar tactics are also evident in the delays in ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which has been announced publicly on various occasions and still has not taken place. And for several years before signing the ICESCR and its companion, the International Covenant on Civil and Political Rights (ICCPR), the government repeatedly announced that it was about to sign the treaties. Thus the government is an expert at dragging out such processes for as long as possible so as to get maximum mileage out of them.

 

 

 

 

 

 

A WATERED-DOWN DOCUMENT

 

Comparison with the initial MoU draft reveals disturbing shifts of emphasis. Since the OHCHR would have no incentive to water down the text, this has clearly been at the insistence of the Chinese government.

First, the Memorandum makes clear that the OHCHR and the government are not to be considered as equal parties. Compare Article 1.1 of the first draft: “The OHCHR and the government shall cooperate in the implementation of a program of technical cooperation...” with the same article in the new version: “the government wishes to make use of advisory services and technical cooperation and will identify specific cooperation programs... the OHCHR shall assist the government in the development and implementation of... programs.” The role of the OHCHR has been reduced to that of a mere service provider, undermining the very notion of “cooperation.”

While the previous draft identified the “promotion and protection of human rights in China” and the “harmonization of national law and practice with international human rights standards” as the objectives of the cooperation program, in the final MoU the objective has been reduced to the promotion of “better mutual understanding of human rights issues.” The worrying removal of most references to “promotion and protection of human rights” is evident throughout the document.

The Chinese authorities often argue that human rights issues are best addressed by exchanges of views to allow a “mutual understanding” of the country’s situation and specific approach to human rights. Similar language is used throughout the Memorandum, as in Article 1.2: “the program of technical cooperation aims to... promote better mutual understanding of human rights issues.” But the only acceptable “understanding” of human rights issues is one based on international human rights instruments. Furthermore, an exchange of views does not actually address violations of human rights, nor is it a commitment to harmonize domestic law and practice with international human rights standards. Such commitments should be at the core of any substantive program of technical cooperation.

In addition, unlike in the previous draft, ratification and implementation by China of the two covenants are no longer expressly mentioned. This is not a good sign, especially with China stalling on ratification. It also runs counter to the main objective of the 1999 Needs Assessment Mission which, “as instructed by the High Commissioner, sought to advance the ratification and implementation of the two international human rights covenants through a discussion of a comprehensive program of technical cooperation in the field of human rights.”

Finally, and contrary to the assertion in the Vienna Declaration (issued at the conclusion of the 1993 World Conference on Human Rights) that all human rights should be given equal emphasis, the MoU reflects China’s determination to impose its own concept of human rights. The “right to development,” a concept introduced in the final draft, appears more frequently in the document than “civil and political rights.” We believe that such language calls into question the Chinese government’s respect for the universality of human rights standards.

 

 

 

 

 

 

COOPERATION PROGRAMS

 

Wording in such agreements is no semantic matter, but is crucial, since its sets guidelines for future action by the OHCHR.

According to the MoU, the cooperation program is to last two years. Four broad areas of cooperation have been selected: administration of justice; human rights education; legal development; and strategies for the realization of the right to development and economic, social and cultural rights. The previous draft described the third area as “legislative reform”; this is an additional setback as “development” does not convey the idea that the law needs to be revised and brought into conformity with international standards.

The MoU provides a list of possible activities, including human rights education; workshops; academic studies; strengthening rights documentation, research and training capacities; providing and translating OHCHR publications; expert advice on ratification of treaties; human rights fellowships for officials; and “assistance to projects in provinces concerned to facilitate the realization of economic, social and cultural rights.” Yet, in its first phase of implementation, in 2001, the program will only consist of three workshops—on education, human rights and police and “punishment of minor crimes.” Many reports said that this workshop would be on the Reeducation Through Labor administrative detention system, but this is not stated in the agreement, and only Commissioner Robinson said that this would be on the agenda.

The MoU states that the program will be implemented in a “step-by-step manner.” But if all that can be achieved within one year are three workshops, how do the government and OHCHR expect to implement so many diverse activities in 2002? Furthermore, workshops could be nothing more than one-shot efforts, with no impact on China’s rights situation. It is disappointing that although other assistance programs have already provided human rights training to Chinese officials (such as the Swedish Raoul Wallenberg Institute for Human Rights in Sweden, which has conducted a number of training exercises for police, procurators and prison officials), no such substantive activities involving OHCHR have yet been agreed.

 

 

 

 

 

 

WHAT HAPPENS ELSEWHERE?

 

Established in 1955, the UN Technical Cooperation Program in the Field of Human Rights assists states, at their request, “in the building and strengthening of national structures which have a direct impact on the overall observance of human rights and the maintenance of the rule of law.” It is described as focusing on “the incorporation of international human rights standards in national laws and policies; on the building or strengthening of national institutions capable of promoting and protecting human rights and democracy under the rule of law; on the formulation of national plans of action for the promotion and protection of human rights; on human rights education and training; and on promoting a human right culture.”

The OHCHR can assist governments in many ways, from expert advisory services to training and assessment of domestic human rights needs. Areas of cooperation in other countries often relate to the implementation of national human rights plans of action and involve the translation into national languages and publication of human rights material, sometimes in connection with the establishment of human rights curricula in training institutions for the police or other law-enforcement personnel. Reference to international human rights standards is explicit in the training programs. For example, the Indonesian program outlines training projects on treaty reporting for government officials, national institutions and NGOs. Others are more narrowly focused, as in Nicaragua, with inter alia the “development of crime prevention strategies at the community level and forms for presentation of complaints.”

Implementing tools of cooperation programs being so diverse, it is beyond comprehension that, in China’s case, only workshops could be agreed upon, instead of concrete projects more likely to ensure that the expertise of the OHCHR is not restricted to a small circle of high-level officials.

 

 

 

 

 

 

COOPERATION WITHOUT MONITORING?

 

Commissioner Robinson said it was “empty” to criticize the PRC over human rights abuses without acknowledging the progress the MoU represented. At the same time, she expressed concern about the “lack of progress” on freedoms of expression, association and religion, stating that her office would pay particular attention to these areas. She cited concerns about Tibet and Falungong, raised individual cases of abuse and “pressed hard” for China’s agreement to a visit by the Special Rapporteur on Torture. She also expressed disappointment that China’s legislature had not yet considered ratification of the ICCPR. In addition, the High Commissioner addressed a workshop on economic and social rights held during her visit. Regarding China’s ratification of the ICESCR, she said: “I urge that there should be no reservation to Article 8 on freedom of association and trade union rights.”

The United Nations describes technical cooperation “as a complement to, but never a substitute for, the monitoring and investigative activities of the human rights program... the provision of advisory services and technical assistance would not exempt [a state] from monitoring through the various procedures established by the UN. Indeed, action by special rapporteurs of the Commission on Human Rights often takes place in parallel with projects of advisory services and technical assistance.” In some countries, like Bolivia, cooperation programs themselves contain monitoring components.

In a study on assistance for human rights programs relating to administration of justice, the International Council on Human Rights Policy stated: “Human rights assistance cannot be done well without good information concerning the human rights situation in the country, and this requires monitoring. Whether donors should report publicly their concerns will depend on the situation. Donors with an explicit human rights mandate - like the UN - cannot be silent.”

But the MoU precludes any possibility of monitoring. It states: “All the UN officers and experts involved in the projects shall not engage in activities other than those related to the implementation of the program of technical cooperation.” Such wording is a clear denial of the fact that, as the International Council noted, effective cooperation programs must be based on a careful assessment of a country’s needs, resulting from impartial monitoring and analysis of its human rights situation.

Another indication of the government’s wish to avoid any involvement of UN staff in China in monitoring human rights is the fact that the initial MoU provided for a program officer in charge of overseeing the projects implementation to be stationed in Beijing. Instead, this officer will be based in Geneva, while the Foreign Ministry will appoint a “focal point.”

Human rights monitoring and technical cooperation programs should complement each other. The High Commissioner has to be commended for expressing publicly her concern about the country’s rights situation. Despite her comments, however, what remains as a formal framework for cooperation is the MoU. The Chinese government has thus successfully opted out of the second half of the OHCHR’s mandate, an attitude consistent with its continuing efforts at dodging scrutiny.

 

 

 

 

 

 

MUZZLING RIGHTS ADVOCATES

 

The government’s aversion to monitoring begins first and foremost at home. People calling for human rights improvements are systematically silenced, from advocates of political and social reform to labor rights activists and religious practitioners. This is well known and well documented.

Such domestic practice is paralleled with Beijing’s efforts to muzzle human rights groups in international fora. An increasing number of Chinese government-organized NGOs (GONGOs) have been granted consultative status with the UN Social and Economic Council, including the China Society for Human Rights Studies, which appears to do little but defend the government’s record and attack that of the United States. But HRIC has been denied consultative status as a result of Chinese pressure. Most recently, China blocked the application of the International Campaign for Tibet, the Tibet Center for Human Rights and Democracy and HRIC for accreditation to the UN World Conference Against Racism.

 

 

 

 

 

 

COOPERATION, OR AN ATTEMPT TO SILENCE CRITICISM?

 

Over the last few years, the Chinese authorities have managed to describe formalistic cooperation with the United Nations as human rights improvements in order to block monitoring based on international human rights standards. A great deal has been made, for example, of the fact that China has invited the High Commissioner to visit.

Quiet bilateral dialogues on human rights have come to replace public monitoring, in particular at the CHR, where a number of states, from Australia to Canada, to members of the European Union, have stopped supporting resolutions on China’s rights situation. These dialogues have served the Chinese government’s purpose in diminishing public censure of its rights violations by other governments, but have failed so far to initiate significant reforms in China’s law and practice.

Public monitoring provides crucial moral support for those in China struggling for human rights improvements. The UN thematic procedures play an essential role in this respect. However, the case of the visit of the Special Rapporteur on Torture, Nigel Rodley, which the government has postponed indefinitely, shows that, all too often, China’s interactions with the UN human rights procedures reveal a determination to go through the motions in cooperating with the UN human rights system, rather than practical, substantive cooperation in good faith aimed at ending rights abuses.

The Special Rapporteur’s mission has been stalled because the Chinese government has so far refused to accept the “terms of reference” governing country visits which have been agreed to by UN experts. Rodley has insisted that China should not receive special treatment, and insisted that these terms of reference should apply to his visit. The “minimum necessary to ensure the independence, impartiality and safety of visits by the special rapporteurs to the field” includes such guarantees as “freedom of movement in the whole country”; “access to all prisons, detention centers and places of interrogation”; “confidential and unsupervised contact with witnesses and other private persons, including persons deprived of their liberty”; and “assurance by the Government that no persons, officials or private individuals, who have been in contact with the Special Rapporteur/Representative in relation to the mandate will for this reason suffer threats, harassment or punishment or be subjected to judicial proceedings.” The latter is of particular significance in China’s case: Both when the Special Rapporteur on Religious Freedom and the Working Group on Arbitrary Detention visited China, individuals with whom they had had contact suffered serious reprisals.

In their last annual report, the Special Rapporteurs/Representatives stated that: “States should first cooperate in good faith with the Office before a technical cooperation project could be envisaged for them... Technical cooperation and monitoring activities could be considered complementary, but the issue of properly timing each set of activities in respect of the same country was vitally important.” In view of China’s poor record in cooperating with the UN human rights mechanisms, the signing of the Memorandum at this particular time appears to contradict this principle.

The fact that the MoU fails to include references to the recommendations made by UN treaty monitoring bodies and thematic procedures on bringing China’s laws, policies and practices into conformity with international human rights standards is another illustration of the government’s lack of commitment to real cooperation. Starting from existing analysis and recommendations would appear to be logical for a cooperation program, but the Chinese government has evidently refused to accept this.

Thus the signing of the MoU should have been postponed until both parties had agreed to satisfactory wording according full respect to the universality and indivisibility of human rights, and until China had shown its willingness to cooperate with the OHCHR, for example, by granting invitations to UN experts and agreeing to their terms of reference, and by beginning to implement recommendations of UN treaty bodies, such as the Committee Against Torture and the Committee on the Elimination of Discrimination Against Women.

High Commissioner Robinson will undoubtedly continue to criticize violations of human rights in China, as she has done strongly during this visit. But action at the United Nations does not depend only on her; it depends on the governments that make up the world body. Unfortunately, it seems very likely that some governments will use the signing of this MoU as a further excuse to remain silent on the continuing, egregious abuses of human rights perpetrated by the Chinese government. Seen in this context, the signing of the MoU is not an isolated event, but the crowning touch of a well-thought-out strategy by the Chinese government to deflect criticism by formalistic cooperation with international and bilateral human rights mechanisms, while mostly refusing to address the real causes of rights violations.

This leaves the OHCHR in a difficult position. If there is no pressure from other governments, will China really take substantive steps to implement the cooperation program jointly designed with the OHCHR? What has the Chinese government really committed itself to, if anything?

Further information

On the OHCHR Web site, www.unhchr.ch:

 

 

 

  • Technical cooperation program: www.unhchr.ch/html/menu2/techcoop.htm#Programme
  • Report of the meeting of Special Rapporteurs/Representatives, Experts and Chairpersons of Working Groups of the Special Procedures of the Commission on Human Rights and of the Advisory Services Program, E/CN.4/1998/45
  • Report of the Special Rapporteurs/Representatives, Experts and Chairpersons of Working Groups of the Special Procedures of the CHR and of the Advisory Services Programs, E/CN.4/2001/6
  • The International Council on Human Rights Policy, Local Perspectives: Foreign Aid to the Justice Sector, 2000

 

B□trice Laroche is Human Rights in China’s UN Liaison.

 

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