China and the international human rights regime: a case study of multilateral monitoring, 1989-1994.
The decision by President Clinton on 26 May 1994 to sever Most-Favored Nation trading status [hereinafter MFN] from human rights in US relations with China marks the end of a four year period in which MFN assumed the principal public role in the international monitoring of China's human rights. This controversial decision has highlighted the difficulties involved in the bilateral monitoring of the human rights of a powerful state. Bilateral monitoring implicates the autonomy of two sovereign and, in most cases, effectively unequal states. Because of its political overtones, bilateral monitoring attracts the public imagination and may facilitate a short-term outcome.
Yet its advantages are the precise measure of its weaknesses. Bilateral mechanisms are open to abuse and to misunderstandings between states, and, in the very process of monitoring, their means overshadow their ends. In pitting the sovereignty and national prestige of one state against another they may have the counter-productive effect of mobilizing the very citizenry whose human rights are being abused in support of the abusing state. At the very least, they mobilize the state itself. As the outcome of the MFN case showed, bilateral monitoring is also vulnerable to political, strategic or economic trade-offs between states.
Some have argued that MFN was a blunt, imperfect instrument which was too dangerous to use: others that it was a lever too valuable to drop.(2) A case could be made that the problem lay not so much in the mechanism itself, but in the way that it was wielded. Before 1993, MFN was a vague cloud hanging over the Chinese government, not threatening enough to constitute an open challenge to China's sovereignty, but real enough to influence such important concessions as the release of leading dissidents. However, the executive order of May 1993 calling for overall, significant progress in seven specific areas of China's human rights, and dropping issues of arms proliferation and trade from the MFN linkage, at once elevated the role of human rights in US-China relations and made the conditions so specific that it would be difficult to prove that they had been met. MFN was projected in a way that appeared to openly challenge China's sovereignty and to place China in the role of 'victim' within UN human rights forums. When measured against a host of other variables, such as problems in the US economy, alterations in China's geopolitical situation, China's booming economy linked with growing domestic instability, and the strategic threat in North Korea requiring China's diplomatic intervention, MFN proved wholly inadequate to its task.
However, the important issue is not the source of MFN's failure, but the outcome of that failure. It is now clear that MFN, or any modification thereof, no longer represents a credible monitoring instrument capable of achieving an improvement in the condition of China's human rights. What are the alternatives? As Maxime Tardu has pointed out in his general appraisal of the variety of pressures on a state's human rights:
The many factors at work included, first and foremost, an awareness of their dignity by the persons concerned, under the influence of national human rights defence groups; international pressure exerted by NGOs; bilateral inter-state deterrence, in varying forms and degrees; diplomatic representations, measures of cultural and political isolation, withdrawal of economic and technical assistance, commercial boycott; the positions adopted by churches and religious groups; the implementation of complaints procedures at regional level (Council of Europe, the Organization of American States (OAS)) and within the sectoral framework of the specialized agencies of the United Nations, in particular ILO; and lastly, the activities of the United Nations.(3) The most logical and effective alternative to open bilateral pressures would appear to be a return to the multilateral mechanisms which were the mainstay of international pressure on China in the months immediately following the Tiananmen crackdown in June 1989. Because the United States and China are not members of any regional group that could provide a credible mechanism at a regional level, the main focus inexorably returns to the United Nations and its specialized agencies.(4)
The advantages of multilateral monitoring are manifold. It enjoys the collective, consensual, historical, and institutionally based moral authority which bilateral mechanisms lack. Unlike bilateral mechanisms, its norms are consistent, even if often selectively applied. It provides a protective umbrella under which states may pursue their collective or separate normative goals. In contrast to bilateral monitoring, multilateral action pits the sovereignty of a single state against a community of sovereign and formally equal states and thus requires a diplomatic process of cooperation and coalition building. From an institutional perspective, the collective and authoritative nature of UN resolutions makes it difficult for states like China to invoke the principle of state sovereignty and to inflame nationalistic sentiments in an effort to deflect the human rights critique. Moreover, the custom of consensus-seeking in UN forums and the habitual adoption of thematic human rights resolutions without a vote require states to accept the normative content of the international human rights regime, even though they may simultaneously challenge its right to apply these same norms in the censure of a specific state. At the same time, it must be conceded that multilateral mechanisms, like bilateral ones, are often criticized for their double standards and selectivity.(5)
If the United Nations and its specialized agencies are now the most logical focus, both for the United States and for the international community, the question necessarily arises as to how effective it has been and will be in promoting its human rights values in its interaction with China. While there is a range of means that can be used, including the UN thematic and Special Rapporteurs and the specialized agencies of the International Labour Organization (hereinafter ILO) and the World Bank, within the United Nations itself the most effective organs to date have been the Sub-Commission on Prevention of Discrimination and Protection of Minorities (hereinafter the Sub-Commission) and the Commission on Human Rights (hereinafter the Commission). This study involves a careful analysis of the way in which these two bodies have dealt with China between 1989 and 1994. It considers the changes that have taken place in China's interaction with these bodies, analyzing in particular detail both the forty-first and the forty-fifth sessions of the Sub-Commission. Finally, it draws certain conclusions about the effectiveness of this monitoring route, both in the past and for the future.
II. THE SUB-COMMISSION AND COMMISSION ON HUMAN RIGHTS: THE INSTITUTIONAL
AND HISTORICAL CONTEXT
As previously noted, the primary mechanisms used to respond to the Chinese government's suppression of the 1989 Democracy Movement were multilateral ones, with sanctions being imposed by the World Bank and the EC.(6) Bilateral sanctions in support of this universal reaction took moral shelter and were subsumed under the multilateral umbrella. China's actions had repercussions throughout the UN human rights system, from the Secretary-General to the treaty bodies and to the Special Rapporteurs on Summary and Arbitrary Executions. The ILO was also active in attempting to protect workers involved in the Democracy Movement. But the most dramatic public response came with the passage of a resolution on human rights in China by the Sub-Commission in August of 1989. By targeting a permanent member of the Security Council for the wide scale abuse of human rights within its territory, this UN human rights body achieved an international "first."(7) Its action symbolized the abatement of the Cold War and the inauguration of a new era in which human rights would assume their rightful place in the discourse between states.
The Sub-Commission has been described as "among the finest institutions of the United Nations in the field of human rights."(8) Experts view the Sub-Commission as the most effective human rights forum for linking official governmental bodies and policy with the general public through the intervention of nongovernmental organizations (hereinafter NGOs).(9) NGOs have termed the Sub-Commission "the best hope for a non-selective application of human rights standards."(10) This perception persists, despite the fact that political considerations have often influenced the selection of the nominally independent experts who serve in an individual capacity rather than as government representatives, despite widespread criticism from governments, and despite the growing tensions between NGOs and governmental observers participating in the Sub-Commission sessions.
As a human rights organ involved in standard setting, and as a flexible forum which is highly sensitive to the dynamics of world politics, the Sub-Commission and its history provide a record of the changing operationalization of universal human rights norms. Its important place in international human rights law is suggested by its changing fortunes over time, including an effort at the behest of some states in 1951 to abolish it altogether, the cancellation of an entire session in 1986, and the numerous attacks on its within its more political parent body for allegedly exceeding its mandate. Its membership of "experts" makes an interesting contrast with the Human Rights Commission, which is composed of governmental delegates.
The interplay between principles, politics, and personality which is the Sub-Commission's outstanding, if not unique feature, together with its accessibility to NGOs and visiting scholars, make it a most appropriate focus for the study of China's response to, and impact on, the international human rights regime. Changing norms may be assessed not only from the content of reports and resolutions, but from the character of the institutions and relationships comprising the Sub-Commission, which reflect its democratic structure. China's impact and response may thus be measured not only in terms of the Sub-Commission's voting patterns, but in China's attitudes towards the NGOs, towards the principle of independent experts, and towards the relationships between the Sub-Commission itself and other human rights organs, NGOs, and observer governments.
Expanding over the years from a membership of twelve, today the Sub-Commission is a body of twenty-six experts whose members are elected on a regional basis to ensure adequate representation of different regions, legal systems, and cultures. The membership consists of seven members from African states, five from Asian states, six from West European and other states; five from Latin American and Caribbean states; and three from Eastern European states.(11) Although there is no formal criterion for assessing the qualifications of nominees, there is an expectation that members should be "independent experts."(12) The annual session of four weeks every August is also attended by a large number of observers, representing NGOs, intergovernmental organizations, the Secretariat, and an increasing number of governments.
By contrast, the UN Commission on Human Rights is composed of governments. Proposals made in 1946 that the Commission should be made up of independent experts were decisively rejected by the UN Economic and Social Council. As a result, the Commission has never claimed to be anything but a political body whose decisions are nevertheless based on international legal standards and an attempt to be consistent and fair.(13) It has grown from eighteen members at its first session in 1947 to fifty-three members in 1992. Notwithstanding its important achievements, the more political character of the Commission has served to enhance the significance of the Sub-Commission's contribution, particularly in relation to the question of the violation of human rights by particular states.(14)
Despite the optimism engendered by the 1989 Sub-Commission resolution about the efficacy of UN mechanisms in monitoring human rights, in succeeding years the international spotlight was gradually directed onto bilateral processes. As memories of Tiananmen receded and international sanctions were whittled away, the threat of the removal of China's MFN trading status in the US became a visible means of inducing China to improve its human rights record.(15) From 1990, heightened publicity in the first months of each year, beginning with the US State Department Human Rights Report in February, and culminating with the presidential decision on MFN by 3 June, appeared to have prompted the release of hundreds of notable Chinese dissidents.(16) Despite the focus on 3 June as the final point of presidential decision making, MFN was meant by US authorities and Western NGOs to facilitate a meaningful, deep-rooted improvement in China's human rights record over time. China's policy makers, however, interpreted it as referring to a specific and symbolic date, that could be negotiated at the last minute by bartering the lives of men and women. In the meantime, China's diplomats continued to interact with UN human rights organs, that for the most part, pursued their mandates away from the public eye.
III. CHINA AND THE HUMAN RIGHTS COMMISSION AND SUB-COMMISSION BEFORE 1989
China's interest in UN human rights bodies coincided with a period in which it began to play a full role in the United Nations as a whole. Following its entry into the United Nations in 1971, China was generally content to adopt a passive, learning, observer role and tended to absent itself from resolutions regarding human rights in particular states.(17) It neither signed nor ratified the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social, and Cultural Rights. Until 1980, human rights issues supported by China in the UN General Assembly included the collective right to self-determination, the granting of independence to colonial countries, and opposition to apartheid, racial discrimination, and discrimination against women.
By 1977, however, China had modified its refusal to cite international standards on civil and political rights by its public criticism of the Soviet Union for imprisoning and exiling dissidents.(18) Beginning in 1979, China sent observers to take part in the thirty-fifth, thirty-sixth, and thirty-seventh sessions of the Human Rights Commission.(19) In 1981, China changed its "absent" vote in the General Assembly on resolutions relating to human rights in Chile and El Salvador to an abstention, thus perhaps indicating a preparedness to be involved in the consideration of civil and political rights issues.(20)
In the same year China was elected a member of the Human Rights Commission and in 1982 for the first time formally participated in the thirty-eighth session. Since then it has been a continuous member. In 1984, Gu Yijie was elected a member of the Human Rights Sub-Commission. In 1984, China also supported the appointment of a rapporteur to examine the human rights situation in Afghanistan, despite Soviet and East European protests that this would constitute interference in internal affairs; in 1985, it supported a Human Rights Commission resolution for a similar investigation in Chile, though not in El Salvador or Iran.(21) When Gu Yijie's term expired in 1987, Ambassador Tian Jin, China's former Ambassador to Berne, was nominated to replace her, and in 1988 was elected by the Human Rights Commission as China's expert. In 1990 Tian was elected to office, initially left. Apart from involvement in these bodies, by 1989 China had signed and ratified seven UN human rights conventions, including the Convention on the Elimination of All Forms of Racial Discrimination and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
In general, China's diplomats working within the human rights regime specialize in the diplomacy of international organizations and attend session after session of both the Human Rights Commission and Sub-Commission. They are therefore engaged in an uninterrupted learning curve, unlike many of their western counterparts. Some have been attached to China's UN delegations since China entered the United Nations in 1971. According to a book by Pang Sen, a Chinese diplomat representing his country in both the Human Rights Commission and Sub-Commission, the Commission is seen by China as the main organ responsible for human rights questions, and in particular is judged to have an important function in censuring the world-wide violations of human rights, as well as in promoting the implementation of the Right to Development.
According to Pang, the Commission is viewed as particularly effective for promulgating its resolutions on South Africa, Cambodia, the former Soviets in Afghanistan and the United States in Panama.(23) The Sub-Commission has the virtue of requiring states to examine their policies and of providing a supervisory mechanism.(24) On the other hand, it allows states to attack one another and is seen as imposing the values of the West on the Third World.(25) In general, Pang Sen's criticism of the UN human rights organs is that the United Nations is not a supranational institution and does not have the right to intervene. Despite the United Nations' numerous reports and resolutions, he claims that it has not been efficacious in monitoring human rights. During the Cold War, he alleges, human rights were politicized and double standards were adopted. Finally, he criticizes the failure of the United Nations to limit the activities of NGOs which have been allowed to attack sovereign states.(26)
Since the forty-first session of the Sub-Commission in August 1989, following the suppression of China's Democracy Movement, China has become a target of the Sub-Commission's focused attention. Yet it was not the first time that action against China has been mooted in its sessions. In the 1987 Sub-Commission session the issue of torture in China, raised by Amnesty International, provoked a strong retort from the observer for China, Wu Shan-xiu.(27) Co-sponsors of a draft resolution on the human rights situation in Tibet during the fortieth session of August 1988 reportedly withdrew the resolution as a result of political pressures applied by China.(28) China's representatives were also alleged to have complained in a meeting with the UN Secretary-General that a proposed draft resolution on Tibet constituted interference in China's internal affairs.(29) Similarly, political pressures reportedly helped defeat resolutions on Indonesia and Iraq, despite a 1988 Commission resolution reviewing the Sub-Commission's work, which had called on the Sub-Commission to concentrate its efforts on specific human rights issues to which it could make a distinctive contribution.(30)
At the following forty-fifth session of the Commission in early 1989, the election of Qian Jiadong (China) as a Vice-Chairman broke an understanding that representatives of the permanent members of the UN Security Council would not sit on the bureau of the Commission or other functional commissions of ECOSOC. It was even anticipated that China might attempt to become Chairman at the 1990 Commission.(31) Ironically, this new honor preceded by only a month China's declaration of martial law in Tibet. The 1989 Commission session was a stormy one, with many lengthy interventions from China's diplomats on the subject of Tibet, as well as an embarrassing revelation about racist attitudes and treatment encountered by African students in China.(32) Numerous NGOs intervened on the subject of Tibet. On 7 March Chinese delegate Li Zuomin embarked on a long history of the China-Tibetan relationship, noting his regret at the fact that riots had been provoked in Lhasa "by a few separatists," just when democracy and the rule of law were being consolidated.(33) It was not until 9 March that he referred to the riots of 5--7 March which had ended with the official declaration of the state of emergency. In conclusion, as if to blame external forces, Li observed that "it was significant that the events had occurred during the Commission's session."(34)
IV. THE FORTY-FIRST SESSION OF THE SUB-COMMISSION, AUGUST 1989
The forty-first session of the Sub-Commission in August 1989 was an important occasion in the history of multilateral human rights monitoring for a number of reasons, apart from the unprecedented censuring of a Permanent Member of the Security Council. Already the events in China had created such international concern that the Central American and Caribbean states which did not usually make an issue of human rights had met with others in the UN General Assembly to discuss those rights, and the UN Secretary-General had expressed concern to the Chinese Ambassador.(35) For this reason, and as a result of the continuing world-wide condemnation of the internationally televised massacre, the China issue dominated the Sub-Commission session. China was not only to suffer the indignity of the world community's censure, but its diplomatic skills in dealing with an active human rights regime, as yet reasonably unhoned, were put to a severe and public test. The onus was on the Chinese expert, Tian Jin, and the members of China's observer delegation, to avoid the threatened outcome, and to that end China employed heavy handed tactics during the session. These tactics were, however, ably fielded by both Western and Third World experts. In response to NGO urging, Agenda Item 6,(36) under which specific country issues were debated, was moved to an earlier position on the agenda, and the China question dominated the session.
Early in the debate on 15 August, a dramatic intervention was made by Li Lu, spokesman for the International Federation For Human Rights, and one on the list of twenty-one Chinese students wanted by the Chinese Public Security Bureau for their involvement in the Tiananmen demonstrations. He gave a vivid description of the violent killings in the Square and claimed that at least 120,000 people had been arrested and executed in China without publicity simply for attending a peaceful demonstration.(37) While he was speaking, Mr. Zhang, observer for China, left the room.(38) Later, exercising his right of reply, Mr. Zhang deplored the fact that a "criminal" on the list of persons most wanted by China's police had been allowed to address the Sub-Commission.(39) He was also reported by an academic observer to have called Li Lu a "liar" who "spread rumors" and was "one of the major organizers of counterrevolution."(40)
Mr. Zhang was rebuked the following day by the French expert Louis Joinet, who was to be a central figure in the proceedings over the next two weeks. He stated that Mr. Zhang's "allegation was slanderous and might even be a matter for the Geneva courts." Such language was "discourteous, unacceptable to the Sub-Commission and should not have been used."(41) Mr. Joinet suggested that if Li Lu were in fact a criminal the Chinese authorities should issue an international warrant for his arrest on which Interpol might or might not act.(42) On 17 August Mr. Zhang replied, insisting that he meant no disprespect to the Sub-Commission, but reiterating the reasons for his objection to the presence of Li Lu. Mr. Joinet rejoined that not withstanding the principle which allows a state to determine who is a criminal within its domain, he did not believe that international law permitted a state to impose its laws on persons outside its own frontiers. If such a line of reasoning had been followed, he argued, Mr. Araft would never have come to the United Nations and Mr. Mandela would never be able to come.(43)
The primary defense used by the Chinese expert and China's observer delegates during their four major interventions to persuade experts not to support the draft resolution was based on principles of non-intervention and state sovereignty. This hardline position drew sharp retorts from Western experts and remonstrances from their Third World colleagues. Observer Yu Zhizhong, upon the intervention of Mr. Alfonso Miguel Martinez (Cuba), was allowed extended time to explain the Chinese government position on the massacre in Beijing. He claimed that the government had acted on 3--4 June because the whole country was in a state of crisis, and the disturbances had to be ended "precisely to safeguard the human rights and fundamental freedoms of the vast majority of the Chinese people." He claimed that "not a single person had been killed by the army or run over by military vehicles, and to assert that there had been a bloodbath on the Square was a sheer fabrication."(44) Finally, he insisted that "the putting down of riots and rebellions so as to maintain State order was a domestic affair of the State concerned alone and no foreign country or international organization had a right to intervene on any pretext whatsoever."(45)
Mr. Yu's statement drew a firm reply later that afternoon from Mrs. Ksentini (Algeria), normally a strong spokeswoman for the developing world:
On the principle of non-interference, no State could claim any longer to be a special preserve, and the concept had gradually given way to that of international interest in the field of human rights. A balance had thus to be found between domestic law and the right to intervene in certain situations when domestic remedies had been exhausted.... A liberal approach to human rights, with emphasis on individual and political rights, had long been followed.(46)
In spite of this statement, on 22 August expert Tian Jin (China), again invoked the principles of sovereignty and non-intervention:
The social and political systems adopted by each country were internal matters falling under the exclusive sovereign jurisdiction of the country concerned. The experts should therefore refrain from making rash comments or hasty accusations against the leaders of any country, if only out of common courtesy.(47)
Finally, Mr. Tian pointed out that the United Nations had never adopted a resolution stipulating that the provisions of Article 2, paragraph 7 of the UN Charter, which forbids interference in matters that are essentially within the domestic jurisdiction of any state, was not applicable to expert groups. Once more, Louis Joinet (France) responded vigorously. Against Article 2, paragraph 7 he counterposed the equally valid Article 55(c) of the Charter, which called for universal respect for and observance of human rights and fundamental freedoms. Under Article 56 members undertook "to take joint and separate action in co-operation with the Organization," something that China had also done when it voted in the Commission on Human Rights in favor of resolutions calling in question the internal nature of the human rights situations in other states. In fact, Mr. Joinet concluded that
[i]f the Sub-Commission adopted the opinion of those advocating application of the principle of non-interference in the field of human rights, together with the views of those who were opposed to the adoption of resolutions on specific countries and those who were in favour of deleting item 6 or curtailing item 9, its work would be totally paralysed.(48)
A week later, in a final appeal against the draft resolution "Situation in China," Mr. Tian took a notably more moderate line on the principle of non-intervention. He stated that it was China's "sovereign right to decide how the persons who took part in those [Tiananmen] events should be treated, in a spirit of tolerance and respect for their rights." However, he also warned Sub-Commission members to "exercise caution" in relation to the draft resolution in view of the possibility that the Western world could use such resolutions against others in the future.(49) His Ambassador, Fan Guoxiang, was, however, less amenable to the persuasion of the body of experts, and his concluding words were that the draft resolution
in effect constituted interference in China's internal affairs and an attempt to exert pressure on China. The draft was moreover incompatible with the purposes and principles of the Charter of the United Nations, and contravened the rules that regulated international relations.(50)
In the ensuing secret ballot, the draft resolution, as amended, was adopted on 31 August by fifteen to nine votes, as resolution 1989/5.(*) (put in resolution E/CN.4/Sub.2/1989/L.31) It was a mild document, but with significant implications:
The Sub-Commission on Prevention of Discrimination and Protection of Minorities,
Concerned about the events which took place recently in China and about their consequences in the field of human rights,
1. Requests the Secretary-General to transmit to the Commission on Human Rights information provided by the Government of China and by other reliable sources;
2. Makes an appeal for clemency, in particular in favor of persons deprived of their liberty as a result of the above-mentioned events.
The Chinese representative immediately exercised his right of reply: "The Chinese Government categorically rejects this resolution. It is null and void and has no binding force on China whatsoever."(51)
The forty-first session was also unique for the amount of pressure that the Chinese applied outside the conference room. Interviewees have all remarked on this strategy, which extended to sending a diplomat from China expressly to pressure one of the Western diplomats with threats of trade sanctions against his country, and reports of African delegates being approached in their hotel rooms.(52) As the debate on Item 6 continued, informal counts had begun to show that a resolution critical of China would succeed by a margin of several votes. Four or five Latin Americans were willing to join the six Western members, together with enough African and Asian members to carry the resolution. The result remained unclear, however, because of the enormous Chinese pressure on the experts and the governments. Allegedly the Chinese government in Beijing also pressured ambassadors of the experts' countries, warning that their votes would affect bilateral economic relations.(53) One observer wrote:
Old hands at the U.N....commented on the unprecedented Chinese invasion. At times it seemed as if every table in the delegates' lounge had been commandeered by the Chinese mission, and there appeared no way in which a member of the Sub-Commission in need of a tea-break could escape the diplomatic offensive. One of Hong Kong's group found herself cornered by a Chinese First Secretary with the unnerving opening gambit: "What passport do you hold?"(54)
The proceedings also highlighted the crucial role of NGOs: the final outcome was the result of unprecedented cooperation between them. In the period leading up to the session, major NGOs had held little hope that the China issue would proceed beyond the Sub-Commission in the form of a resolution, although they intended to refer to the Beijing massacre in their interventions.(55) However, on 30 June the Ad Hoc Study Group on Human Rights in China, formed in the University of Hong Kong at the end of May, decided to send a delegation, including at least one Tiananmen student leader living abroad, to lobby for a formal denunciation of the Chinese government. They found support from the New York--based International League for Human Rights, the Geneva-based International Commission of Jurists, the Paris based International Federation of Human Rights and the Bangkok based Asian Cultural Forum on Development. Once in Geneva, strong support was also forthcoming from NGOs throughout the world. Asian and European ambassadors anticipated that a great deal of heat would be generated by the China debate but, like the NGOs, they reportedly did not expect a resolution on China to be successful.(56)
During the debate on Item 6, both experts and NGOs focused on the China situation.(57) NGO interventions covered the events of 3--4 June and their aftermath, the situation of students, trade unions, the legal system, and the press. On 17 August, in a display of NGO unity, Niall McDermot, Secretary-General of the International Commission of Jurists, made a statement on behalf of eleven other NGOs, as well as his own.(58) Contrary to the claims of the Chinese government, he asserted that "although over 2 million people had assembled in Beijing, there had been no disorder or riot and at no time had the organized life of the community been threatened." He said it was NGO belief that it was the responsibility of the Sub-Commission and the Commission on Human Rights "to take action in conformity with accepted practices and procedures and to ensure that such gross violations of international human rights norms and standards would not occur again in China or elsewhere."(59) His appeal, significantly, was based on China's own record in accepting obligations under UN treaties.(60)
One of the most important, and unintended, effects of the focus on China in the forty-first session was that it brought about procedural changes which not only had a significant role in shaping the 1989 session but which were to have a lasting impact on facilitating the monitoring of human rights by the Sub-Commission.(61) In order to circumvent the enormous diplomatic pressure being exerted on Members concerning the "Situation in China" draft resolution, and following the successful vote on the use of secret ballot for the 1503 procedure, Mr. Joinet (France) proposed a secret ballot for the consideration of all country-specific resolutions to be addressed in public session under agenda Item 6.(62)
The secret ballot issue precipitated protracted debate and convoluted diplomatic manoeuvering, as it required the deferral of voting on Item 6. Tian Jin (China) vigorously opposed it as "not tenable." He observed that experts were independent, but were "not living in a vacuum." In response to Mr. Joinet's suggestion that, without a secret ballot, "the climate of the session might detract from the quality of the votes," he insisted that "at the current session no new situation had arisen which conferred special importance on the issue."(63) If the rules of procedure were suspended for "short term purposes," he warned, the supporters of the proposal might one day find themselves in "a difficult position" as a result of this precedent.(64) Nevertheless, the vote passed with fourteen in favor, six against (Cuba, India, USSR, Romania, Somalia, and China), three abstentions, and three not present.(65)
A second procedural innovation at the forty-first session affected the scope of a government's right to speak. In this session, a number of countries attempted to use the right to speak to comment on events in China. Under Rule 69 of the Rules of Procedure, states which are not members of one of the subsidiary bodies may be invited to speak on "any matter of particular concern to that state." When the Australian observer Ronald Walker addressed himself to the issue of China on 18 August, Miguel Alfonso Martinez objected that China's human rights did not lie within the sphere of Australia's concern.(66) A prolonged debate followed which was only resolved when a legal opinion was sought from the UN Office of Legal Affairs. According to this opinion, each state could interpret the rules of procedure applicable to it. This decision only served to highlight the peculiar significance of the "Situation in China." Its significance was also underscored by legal advice which allowed a government the right of reply just before a Sub-Commission vote on a resolution concerning its country, a right of which China immediately availed itself.
The forty-first session of the Sub-Commission represented a development in the capacity of the international human rights regime to monitor the great powers. It demonstrated considerable unanimity between the Western powers and the majority of the experts of the Third World over the ways in which human rights norms should be monitored. It provided evidence of the effectiveness of a united front between the NGOs. It also indicated the surprising resilience of the human rights regime in enabling the introduction of procedural mechanisms to circumvent heavy diplomatic pressures exerted by a powerful target country, at least in the context of what was internationally regarded as a human rights crisis. It finally demonstrated the crucial importance of human agency in achieving these procedural adjustments.(67)
For China, the success of the resolution was a heavy blow, representing inter alia a rejection of its aggressive tactics and its defense on the basis of non-intervention and state sovereignty. In its role as a target state, China was obliged to take a negative, defensive position; but, as Mr. Joinet pointed out, pursuit of such hardline tactics called into question not just the norms of the human rights regime, but the regime itself. Events, as Mrs. Ksentini (Algeria) pointed out, had already moved far beyond debate over such principles. Whatever China's response to the experts' opinions, fears were expressed by observers that China might retaliate in the future by leading a move at the Commission to limit the role of the Sub-Commission.(68) These fears were echoed in a newspaper report that China was entertaining the possibility of measures against the Sub-Commission at the Conference of Non-Aligned States in Djakarta.(69)
V. THE SESSIONS OF THE HUMAN RIGHTS COMMISSION AND SUB-COMMISSION,
JANUARY 1990 TO JANUARY 1993: CHINA'S EVOLVING HUMAN RIGHTS DIPLOMACY
China's delegates went into the autumn 1989 session of the UN General Assembly in a defensive mood. They made an angry protest about the Sub-Commission's China resolution, which they circulated as an official document of the General Assembly under Item 12 of the agenda.
On August 31st, engineered and instigated by a few Western members, the 41st session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities under the UN Commission on Human Rights held in Geneva adopted a resolution relating to China. The resolution brazenly interfered in China's internal affairs, attempting to exert pressure on China. The Chinese government is firmly opposed to the so-called resolution which runs counter to the purposes and principles of the U.N. Charter and violates the norms governing international relations, and deems it illegal and null and void.(70)
They asserted that if there was to be a resolution, China would receive Third World support.(71) The feelings of some Third World states, however, coincided with the contents of a letter of 19 September circulated as an official document of the General Assembly by the Ministry of External Affairs of the Commonwealth of Dominica.(72) It expressed dismay at the "violence used against peaceful demonstrators in Beijing" and "deplored" this reaction to free expression as a "violation of basic human rights and freedoms."(73) On the other hand, at the UN General Assembly the Netherlands introduced a draft resolution on freedom of association and the right to dissent which did not mention China specifically. In the face of huge amendments it was withdrawn, and the issue lost diplomatic momentum.
Confronted by this failure, states parties attending the forty-sixth Session of the UN Commission on Human Rights from February to March 1990 were not optimistic about the reception of the Sub-Commission resolution. The events of June 1989 and the continued suppression of many dissenters in China remained a concern to many at the Commission, a concern which appeared justified by the weight of the document attached to the draft resolution, transmitted by the Secretary-General and containing three substantial NGO reports.(74)
China, however, lobbied strenuously against a resolution addressing such concerns. A large Chinese delegation of more than forty diplomats moved in to press for support "in not always courteous ways."(75) They anticipated an increase in Third World support, particularly in view of the trend towards a united front of all countries of the South.(76) Both the build up to the vote and the subsequent successful outcome of the vote for China, however, undermined these expectations. As in the case of the earlier Sub-Commission proceedings, events indicated that the Third World bloc was not an undifferentiated mass. The draft resolution had Western co-sponsorship: Australia, Canada, and Sweden had collaborated in writing the text. However, in a meeting organized by Australia and co-sponsored by the United States, the Japanese deputy also took an interest and removed a few items the Chinese government might have found objectionable.(77) When the Chinese representatives lobbied states parties of the Commission, including Australia, to have the Secretary-General's report struck out, the Filipino Chairman would not allow it. Other tactics further undermined China's standing, as its representatives tried to prevent delegates from speaking and were overruled.(78)
The final form of the draft resolution was a mildly worded document which endorsed the appeal of the Sub-Commission, welcomed China's lifting of martial law in January 1990 and the release of 573 persons, urged the full observance of human rights and requested the Secretary-General to transmit further information by the government of China and other reliable sources to the Commission's forty-seventh session.(79) China's response was to condemn the Western attempt "to equate the action of a government to stop a handful of people from violating the law and order with 'violation of human rights.'" It was China's position that it chose "to oppose the consideration by anyone of matters as violation of human rights but which, in essence, fall within the domestic jurisdiction of a state." The mild wording of the draft was seen as "tactics to gain the sympathy of some delegations so as to reduce the number of votes against the draft." An appeal was made to African friends in particular, and to China's record of compliance with the UN human rights regime in general:
The Chinese government has always abided by the principles and purposes of the UN Charter, committed itself to the respect and protection of human rights and fundamental freedoms, and actively involved in and supported the United Nations in its work in the field of human rights. China has consistently sent factual replies and information, including those concerning the "June 4th incident," in a responsible manner, to the relevant UN bodies as well as to the Special Rapporteurs of the Commission on Human Rights on torture, religion, summary or arbitrary executions and forced or involuntary disappearances. China has also regularly submitted periodic reports to the monitoring bodies established by international instruments to which China is a State Party. It is, therefore, entirely unnecessary to solicit information from China through any additional procedures.(80)
Voting on the draft took place a day before it was expected, and Western lobbying was weak. China called for a "no" motion, and a procedural no-action vote was proposed by Pakistan, which succeeded by a narrow margin of seventeen in favor, fifteen against, and eleven abstentions. States supporting the "no-action" motion were USSR, Ukraine, Pakistan, Cuba, Somalia, China, Iraq, Cyprus, Yugoslavia, Sri Lanka, India, Bangladesh, and five African states. Ultimately, the Soviet and Ukraine votes proved determinative, demonstrating the fragility of a support base which was in the process of erosion. Despite the outward loss in the eyes of an expectant world, the outcome from the point of view of the Commission could hardly have been better.(81) Excellent reports had been made, the Secretariat had taken the initiative, China was under pressure for speaking against the resolution and a showdown in the Commission had been avoided. The support China had anticipated from the Third World had not been as great as expected. It was clear that some Third World states which had supported the no-action motion would probably have abstained had the issue been subjected to a substantive vote. The coalition of Western, former East European, and Latin American states which had been evolving as the Cold War eased and Latin American states became liberalized, was not disturbed. In addition, a Cuban resolution at the end of the session, which invoked Article 2 (7) of the Charter, seeking to apply the principle of non-intervention in human rights, was defeated as the result of two and a half pages of amendments. Although it had not overtly taken the lead in this effort, China was generally believed to have been the prime mover behind it.(82)
This defeat, in combination with the very narrow margin of success on the no-action China resolution, appears to have represented the final nail in the coffin for the principle of non-intervention as China's preferred form of self-defence, although it was occasionally still invoked in relation to Tibet. Henceforth, in international human rights forums, China was to accept human rights as a legitimate part of the international agenda. Such acceptance, however, did not betoken a new attitude of passive compliance, but rather heralded the adoption of new defensive mechanisms.
The following August, at the forty-second session of the Sub-Commission, an anticipated resolution on Tibet failed to materialize. A report that session members agreed not to introduce a resolution on Tibet in exchange for China's agreement not to oppose a resolution on Iraq has since been confirmed by a high level Sub-Commission source.(83) A resolution which was "in the pocket" was therefore withdrawn.
China's involvement in the Iraqi situation was complex. For years draft resolutions on the Iraqi human rights situation had been defeated in the Sub-Commission, more recently with the help of China. At the 1989 session, an Iraqi government-sponsored NGO had invited Sub-Commission experts, as individuals, to visit Iraq to assess the human rights situation. Iraq issued this invitation on the eve of the introduction of a resolution that cited extensive human rights abuses in Iraq. The resolution was avoided by a motion to take no action, adopted by a vote of fourteen to ten.
In May 1990, four experts, including Tian Jin, accepted the Iraqi invitation and travelled to Iraq.(84) During the 1990 Sub-Commission debate, some members criticized the four experts from Cuba, China, Senegal, and Somalia, for making the trip without Sub-Commission approval. Already under criticism, Mr. Tian Jin also joined Miguel Alfonso Martinez (Cuba) in dissenting on a resolution proposing that ECOSOC add a footnote to the Rules of Procedure that would permit the Sub-Commission in future sessions to vote by secret ballot on violations of human rights under Item 6. This resolution passed by twenty votes with only two dissenting votes and two abstentions.(85) Mr. Tian gave as his reason for dissent the fact that "the independence of experts was a matter of principle that did not have to be guaranteed by a vote by secret ballot."(86) However, when discussion on the draft resolution on Iraq began, he duly expressed his opposition to the invasion of Kuwait by Iraq and stated that "[r]egarding the allegations in the draft resolution of violations of human rights in Iraq, he had no reliable information and would therefore abstain if a vote were taken."(87)
At the next Commission session (February--March 1991), China was mentioned during the general discussion on human rights violations under Item 12, but no resolution was introduced. Nevertheless, China's representatives made a great number of interventions. Perhaps the most significant of these was an attack on the Sub-Commission, anticipated since the Sub-Commission's forty-first session, by China's observer delegation.
Somewhat surprisingly, Zhang Yishan identified the essential characteristic of the Sub-Commission as its composition by experts, and its primary concern being "to concentrate its limited human and financial resources and its time on the study of major and practical subjects concerning the promotion and enjoyment of human rights, to draft valuable studies and to put forward feasible suggestions to the Commission."(88) For this reason, he objected to the tendency of the Sub-Commission to become politicized and to intrude upon the responsibilities of the Commission, to engage in political debate and "to make wanton attacks on the domestic affairs of sovereign [s]tates."(89) He attacked the failure of the Sub-Commission to make sufficient time to discuss other matters like the right to development. He complained of the procedural alteration at the forty-first and forty-second Sessions which allowed a secret ballot for passing draft resolutions. He charged that the Sub-Commission had failed to improve its working methods and efficiency as required by the Commission. Moreover, "no effective control was exercised over the participation of non-governmental organizations."(90) He asserted that "the Commission must seriously consider the desirability of reaffirming the nature of the Sub-Commission's work and mandate and calling upon it strictly to abide by and implement the provisions in relation to its agenda items."(91)
In addition to this strong attack, China was one of only three states to vote against a resolution to interpret Rule 59 of the Rules of Procedure as allowing the Sub-Commission to vote by secret ballot on resolutions pertaining to allegations of violations of human rights, when it was decided to do so by a majority of its present and voting members.(92)
At the forty-third Sub-Commission session in August 1991, China's human rights conditions were the subject of a second resolution. By this point, NGOs had reached an informal agreement whereby the China issue would alternate every second year with the Tibet issue. The resulting resolution on the human rights situation in Tibet was regarded as the most notable of the session, as well as the closest vote.(93) It was also regarded by some as more significant than the 1989 resolution, since it related to longstanding Chinese policy in Tibet rather than to a single incident.(94) It expressed concern at the "continuing reports of violations of fundamental human rights and freedoms which threaten the distinct cultural, religious and national identity of the Tibetan people" and requested the Chinese government to "fully respect the fundamental rights and freedoms of the Tibetan people."
The Tibet resolution was achieved against considerable procedural and diplomatic odds. Resolutions both on China and Tibet were pending, co-sponsored by Theo van Boven (Netherlands), on the eve of his departure from the Sub-Commission, and Mrs. Bautista (Philippines). At the time of the vote, however, Mrs. Bautista was away, Mr. Joinet (France) was in the Chair and thus unable to vote, and Mrs. Daes (Greece), in her function as Special Rapporteur, normally declined to vote.(95) In addition, the Chinese Mission in Geneva hosted a large reception at the beginning of the session, at which it showed a lengthy film on Tibet. Such diplomatic activities, however, reportedly had an effect on experts contrary to that intended, and may well have facilitated the passage of the resolution.(96) Another factor in the decision was apparently the impressive nature of the delegation from Tibet.
Finally, China's case was not strengthened by the intervention of Tian Jin (China) just before the vote. He claimed that for more than seven hundred years Tibet had been an integral part of China, and that Tibetan conditions of life, culture, and religion were flourishing as never before. He admitted that the situation of human rights in Tibet, as elsewhere, could be improved. He noted, however, that "[o]nly those who were nostalgic for colonialism and wished to dismember China denied that Tibet was an integral part of the country. ... those who distorted the facts, who clamoured for the independence of Tibet, who talked about alleged violations of human rights pursued only one objective, to foment disorders in China and to split the country."(97) In reply, Mr. van Boven stated that he and Mrs. Bautista had prepared the draft resolution on the basis of disquieting reports of human rights abuses in Tibet. He insisted that "[t]he sole purpose of the draft resolution was to defend the human rights and cultural identity of the Tibetan people and it had been drafted in very measured terms intentionally."(98)
Draft resolution E/CN.4/Sub.2/1991/L.19 was then adopted by secret ballot by nine votes to seven, with four abstentions. Ambassador Fan Guoxiang rejected the resolution unequivocally:
Such a resolution ran counter to the mandate of the Sub-Commission which was to promote and protect human rights. It ran counter to the purposes and principles set forth in the Charter of the United Nations. His delegation categorically rejected it, considering it to be null and void and having no binding force whatsoever vis-a-vis China. Any attempt to split Tibet from China was doomed to failure.(99) While the description of the resolution as "null and void" was identical wording to the 1989 resolution, an observer at the session has commented that, unlike the case in 1989, in 1991 China's delegates within the Sub-Commission took their defeat "on the chin."(100)
The following 1992 Human Rights Commission session exemplified the difficulties faced by an inherently political organization whose voting members were all governmental representatives. It also demonstrated the increasing difficulties confronting any claim to the self-determination of peoples, in view of the problems posed by Bosnia-Herzegovina. In contrast to the general progress made at the Commission, and to the achievements of the preceding Sub-Commission, China proved its thorniest problem. Its failure on China has been called "the primary example of the traditional limitations of the Commission."(101) It has been widely described as a product of bungling and ineptitude, both deliberate and unintended. It has also been described as the turning point of the China issue in the two UN human rights organs.
In this session, the Chinese delegation found the support from the South that it had been seeking earlier. It was the first working session for the newly expanded membership, which had been increased from forty-three to fifty-three members, most of whom were from the South.(102) China had also found a new form of self-defense which it had already hinted at in the 1991 Commission session and which had a broader base of support from the South than did the principle of non-intervention. Cultural relativism as articulated by China's Ambassador Fan Guoxiang meant that "measures aimed at protecting human rights should be decided by each individual country in the light of its history, tradition and level of economic development."(103) The 1992 Commission was a turning point in two senses. Henceforth, some observers believed, barring any new developments within China, China was unlikely to become the target of another UN human rights resolution. On the other hand, China now realized that it would not be able to prevail over the UN human rights program.(104)
The China issue demonstrated the increasingly unified position of the South on human rights, as well as the divisions within the North. Before the Commission was a weighty note from the Secretary-General based on the request of the earlier Sub-Commission resolution to gather information on the situation in Tibet. However, a majority of African states had reportedly arrived in Geneva with instructions not to support the China resolution.(105) In the subsequent vote, almost all African countries supported the Pakistani "no-action" motion, with only Senegal and Gabon abstaining. Among the Latin American delegations, only Costa Rica voted against the motion. In contrast, Western states were divided. Paradoxically, this was partly because it was also the first opportunity for the European Community to exercise the coordinated approach implicit in the Treaty of Maastricht.(106)
Depending heavily on the approach suggested by the Tibetan lobby, which made the draft resolution "politically problematic," the European Community, led by Germany, sponsored a resolution which had not been coordinated with other WEOG (Western European and Others Group) states.(107) Delegates from the United States, Australia, and Japan expressed unhappiness with this resolution, particularly because it conflicted with the "One China" policy of the United States. The US delegation thus suggested a general China resolution that also encompassed Tibet. For the next few weeks there were acrimonious exchanges within the Western group, but at the last minute the EC gave in to US demands.(108)
Having lobbied hard to obtain a modification of the draft, the US delegation appeared to lose interest when it came to getting the results of its efforts adopted. It was widely believed that this ambiguous behavior served the purposes of the then Bush administration in providing an indication of continuing US concern for the human rights situation in China, despite the President's veto of Congressional legislation setting conditions for the renewal of China's Most Favored Nation Status, taken on 2 March 1992.(109) The resultant resolution was entitled "Situation in China/Tibet," and the original preamble and operative paragraphs were broadened to refer more generally to China.(110)
For a resolution to succeed within the UN framework, time to lobby is essential. When voting began on the hastily conceived resolution, China invoked the argument that the aim of the resolution was to undermine China's sovereignty and support Tibetan separatists. Using a similar argument, Pakistan submitted a procedural motion proposing that the Commission not make any decision on the draft. After a long debate, the Commission adopted this motion by twenty-seven votes to fifteen with ten abstentions.(111) The vote was a reasonably close one, but, as one observer delegate commented, in the UN system, "a miss is as good as a mile." Other observers have commented on the open and noisy self-congratulation indulged in by China and some of its supporters in the conference room at the expense of the WEOG group when the result of the vote was made known.(112)
The prophecy of observers from the 1992 Commission proved self-fulfilling. In the 1992 Sub-Commission session, the Tibetan NGO coalition had prepared several oral statements and provided experts with a dossier covering all events. However, in deference to the informal agreement, priority was given to the China issue in this session. Although the China issue was not, like the Tibetan issue, complicated by the difficult issue of self-determination, attempts by the NGO coalition to persuade the experts to table a resolution on China were not successful.(113) One clue to the situation was given in the intervention of Zhang Yishan (observer for China), who referred to a statement allegedly made by former UN Secretary-General Perez de Cuellar in July that there was not enough proof to suggest that massive violations of human rights were taking place in China.(114)
As a result of the Sub-Commission's evasion of the issue, the EC Twelve took the initiative in the 1993 Commission to push for a resolution on human rights in China. However, they faced a newly confident opponent. From the end of 1991 China's economy had begun to boom, wiping out the economic downturn created in part by Tiananmen and combined multilateral and bilateral sanctions. This development coincided with a more assertive Chinese strategy on human rights which began with the publication of the state council's first White Paper on Human Rights in October 1991.(115) This paper had already been identified by Zhang Yishan in the 1992 commission as China's response to the US State Department's "blue book" on human rights.(116) It introduced a new right, the right to subsistence, which, together with the right to development and the claims of cultural relativism, were to be given priority in China's human rights policy.(117) Further confidence arose from China's success in the preceding Sub-Commission and from the approval voiced in the current session for China's improvement of human rights conditions by Pakistan, Mauritania, Nigeria, Bangladesh, Syria, Malaysia, and the Sudan.(118) In addition, the atmosphere of the forty-ninth session was seen as "unusually charged," partly because of the upcoming World Conference on Human Rights in Vienna, partly because "the world was approaching a juncture in the way the international [human rights] community dealt with human rights issues."(119)
The focus of Western governmental and NGO discussion regarding China under Item 12 was on arbitrary detention and harsh prison conditions, the death penalty, and the abuse of fundamental freedoms of expression, religion, assembly, and association. However, rather than assuming a defensive posture, China's delegates emphasized China's support for the reoperationalization of human rights norms, specifically by placing a priority on economic, social, and cultural rights and the right to development. Zhan Daode did attack the "practice of distorting human rights standards, exerting political pressure through the abuse of monitoring mechanisms, engaging in selectivity and applying double standards ... infringing the sovereignty and offending the dignity of many developing countries."(120) However, he also supported the right to development as "an important basis for democracy and human rights."(121) His new Ambassador, Jin Yongjian, also insisted that since opening up in 1979, "[t]he entire Chinese people, of all nationalities, had never enjoyed human rights as extensively as they currently did, whether civil and political rights or economic, cultural and social rights."(122) Ambassador Jin admitted that "civil and political rights and economic, social and cultural rights deserved equal attention," but observed that "the right to independence, subsistence and development were of paramount importance to the overwhelming majority of the developing countries."(123)
The resolution, "The Situation of Human Rights in China," expressed concern over the continuing reports of violations of human rights and fundamental freedoms in China, and called upon the Chinese government to take measures to ensure the observance of human rights and improve the administration of justice. It also invited the government to continue to cooperate with the Special Rapporteurs and Working Groups and requested the Secretary-General to bring the resolution to the attention of the Chinese government and prepare a report for the Commission on Human Rights as information became available.(124)
Shortly before the vote, and as an indication of its new assertiveness, the Chinese delegation took the initiative, launched an attack on its opponents, and introduced a procedural motion requesting that the Commission make no decision on the draft resolution. The motion was adopted by a narrow margin of five, with twenty-two votes in favor, seventeen against, and twelve abstentions. Voting in favor of the motion were Angola, Bangladesh, Burundi, China, Cuba, Cyprus, Gabon, Guinea-Bissau, India, Indonesia, Iran, Kenya, Libya, Malaysia, Mauritania, Nigeria, Pakistan, Sri Lanka, Sudan, Syria, Tunisia, and Zambia. Abstentions were mostly from Latin American countries, while Bulgaria, the Czech Republic, Japan, Poland, Rumania, and the Russian Federation were amongst those who joined the Western states voting against.
The 1993 vote saw the defection of Chile, Gambia, and Lesotho from a vote in favor in 1992 to an abstention in 1993. Six states which had voted in favor in 1992 were not in the 1993 Commission (Ghana, Iraq, Somalia, Madagascar, Philippines, and Yugoslavia), as against the addition of four new states (the Sudan, Gabon, Guinea-Bissau, and Malaysia) voting in favor in 1993. Two other new countries, Bulgaria and Poland, voted against in the 1993 vote. This accounted for the contrast in the margin of success of twelve in the 1992 vote as against the margin of five in the 1993 vote. Observing this positive comparison, the NGO Advisor, Adrien-Claude Zoller of the International Service for Human Rights, commented that the Chinese had "lost considerable ground."(125) It was thus in a spirit of newfound optimism that NGOs contemplated the forthcoming 1993 Sub-Commission session.
VI. THE FORTY-FIFTH SESSION OF THE SUB-COMMISSION, AUGUST 1993: AFTER
The forty-fifth session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, which followed the UN Vienna Human Rights Conference in June, has been described as one of the most politicized in the memory of long-time NGO participants.(126) The tension between principles, personalities, and politics which is latent in the activities of the Sub-Commission, surfaced in an extreme form as a palpable threat to the harmony and viability of future sessions, as well as to the cherished notion of the "independence" of its experts. Two major reasons widely perceived as responsible for this development were the uncertainty of the new international order and the concern of developing states (from which the majority of experts were drawn) that with the break-up of the former Soviet Union, only China could act as a bulwark against the encroaching hegemony of the United States.(127)
Added to these international political reasons was the heavy, if shorterterm, pressure applied by China on its diplomats not to allow any resolution to be adopted that was critical of China's human rights prior to the decision of the IOC Committee on the choice of venue for the year 2000 Olympic Games. In this respect the politics of the session, both overt and covert, were a microcosm of the full gamut of diplomatic strategies which were to be openly employed by China in the final stretch leading to the Olympics decision only a month later. Such pressure became evident in China's more active involvement in the forty-fifth session in lobbying on behalf of other states such as Sri Lanka,(128) as well as in the heavy lobbying and even threats applied by Chinese diplomates to Western experts cosponsoring the Tibet resolution.(129) It was also evident in the number of Chinese government observers attending the session, varying at any one time in the conference room from between two and nine officials.(130)
Moreover, both in governmental lobbying of experts and in activity in the Committee room itself, the Chinese delegation gave the impression of openly challenging the independence of the Sub-Commission's experts. One leading NGO representative, for instance, complained about lack of Chinese respect for the experts' independence when, on 25 August, the Chairman had to give the floor to the next speaker, as China's expert Tian Jin twice failed to speak because his speech had not yet been delivered to him. Although the explanation for the delay might have been quite innocent, it was the only time during the session that an expert held up the proceedings for such a reason. More unequivocal examples, however, were to emerge from the complaints of the experts themselves.
Like many other Sub-Commission experts with either past or current diplomatic careers, Tian Jin was the former Chinese Ambassador to Berne with the reputation as a competent linguist. More recently, he had also been listed as a member of the Committee for the Study of Human Rights, the Chinese NGO participating in the NGO Conference in Vienna, and had taken part in its final plenary sessions. Although most experts used an alternate during the forty-fifth session, Tian Jin was perhaps the most constant participant of all the experts in the proceedings, despite the often gruelling pace. His participation, however, was more as a Chinese presence than as a heavily involved member. He spoke on a number of issues, but cosponsored a comparatively small number of resolutions, and unlike the other experts who frequently added their names as co-sponsors to resolutions which were in the process of being amended, Tian Jin did so on only two occasions in the forty-fifth session. On one occasion when he did this, he was given a special commendation by a Western expert.(131) A relatively quiet member, Mr. Tian had not yet been awarded by his fellow experts the accolade of collegial respect, appointment as Rapporteur/Chairman of a working group, or as author of a report.
Of a total of fifty-two resolutions adopted during the forty-fifth session, the seven draft resolutions co-sponsored by Mr. Tian related to apartheid, freedom of movement of migrant workers, the right to adequate housing, the human rights of detained juveniles, and the rights of the disabled. He did not, however, co-sponsor others such as human rights and income distribution, the human rights of population transfer, or the health of women and children. Such caution in sponsoring resolutions was also reflected in Mr. Tian's verbal interventions. His principal statements focused on Bosnia, the Vienna Conference, South Africa, Tibet, and the issues of extreme poverty and the equality of women, specifically the upcoming women's conference in Beijing. The issues he chose to highlight were for the most part those with repercussions for China's own domestic policy preoccupations and did not depart in any instance from official Chinese policy.
Mr. Tian's most interesting intervention concerned the achievements of the 1993 UN World Human Rights Conference in Vienna. He saw the final outcome as a compromise "which satisfied no one," and predicted that there would continue to be differences of opinion on it.(132) Positive elements he saw in the Final Declaration included (1) its opposition to racism, racial discrimination, xenophobia, aggression, and all forms of new nationalism; (2) the affirmation of the right to development as an inalienable right and the opposition to extreme poverty and external debt; (3) the universality of human rights (although he simultaneously expressed support for the statement allegedly made on 2 August by the Sub-Commission Chairman (from Jordan) on the need for a delicate balance between the universality of human rights and local historical conditions); and (4) its promotion of the needs of women, children, indigenous peoples, refugees, migrants and workers. He described the Vienna Conference as a "link between past and future," and the Vienna Declaration as a document which represented "a new stage in the right to protection of these people."
In keeping with Tian's caution, the Chinese governmental observers limited their interventions in the Sub-Commission proceedings to the questions of South Africa and Tibet. On 4 August, the deputy leader of the Chinese Delegation, Zhang Yishan, welcomed the significant results of the multiparty discussions in South Africa, and the determination and hard work put into finding a political solution. He stated that he hoped the elections would be held on the planned date of 27 April 1994, and that South Africa's goals of unity, democracy, and racial equality would be realized.(133)
On 12 August, the head of the Chinese government observer delegation, Ambassador Jin Yongjian, intervened on Agenda Item 6, on the topic of Tibet. A greater sophistication and persuasiveness was evidenced in Ambassador Jin's approach than that shown by his predecessor in previous Sub-Commissions. This was reflected in the dignified tone of his statement noting that:
the full enjoyment of political, civil as well as economic, social and cultural rights is the common goal of the international community. We have never considered ourselves to be perfect. The Chinese government and all its people, including the Tibetan people, are now devoting themselves to the cause of reform and opening up as well as developing its economy. In the meantime, political reform and building up of democracy and rule of law in the light of concrete conditions of China are all underway so as to improve the enjoyment of all human rights by our people. These efforts are sincere and fruitful.(134)
However, in his conclusion he returned to more familiar rhetoric. He warned that the aim of those pursuing a
so-called question of human rights in Tibet is to deceive the international community and slander the Chinese government, so as to achieve the aim of separating Tibet from China by jeopardising the national unity and territorial integrity of China. Their attempts will be futile.(135)
Although in interviews Chinese diplomats expressed a sense of siege and beleaguerment as the result of outside criticism, unlike other governments under attack for their human rights policies, such as Sri Lanka, Iran, and even Japan, in this session they did not seek the floor for the right of reply after an attack on China's policies. During the forty-fifth session, NGO pressure was maintained fairly consistently on the issue of Tibet.(136) Apart from the NGOs formally accredited to ECOSOC who were able to make statements from the floor, members of the International Coalition for Human Rights in China, including the New York--based organization Human Rights in China and the London-based 4 June China Support Group, attended the forty-fifth session and took part in lobbying and providing information to experts and governmental observers.
Despite the infrequency of China's formal diplomatic interventions and the lack of forcefulness of its expert, the power of China within the Sub-Commission was both manifest and implicit. It lay in the physical presence of Chinese diplomats within the hall and in the increasing subtlety with which the ambassador and the members of his mission were able to combine a variety of diplomatic lobbying techniques and arguments. The techniques were of both the carrot and stick variety, and all rested on the unspoken, and sometimes heavily emphasized premise of China's great power status, combined with the characteristics of a developing state. The impact of this implicit and explicit display of power was all the more formidable in that it was both held in check by the Chinese governmental observers, and at the same time given formal expression in the interventions of Cuban expert, Miguel Alfonso Martinez. With his long Sub-Commission experience and his unparalleled command of procedural intricacies, Mr. Martinez continued to assume the mantle of overt leader and protector of the interests within the Sub-Commission of the "group of seventeen" representing developing states. Indeed, it could be argued that it was partly the skillful maneuvering of Mr. Martinez which enabled the Chinese observers to maintain their diplomatic composure in the face of strong NGO criticism.(137)
The leadership of Mr. Martinez and the continued Cuban-US impasse was also the apparent source of the continuation of Cold War politics within the Sub-Commission. At the nineteenth Sub-Commission meeting on 16 August, Mr. Martinez proposed a draft decision concerning a group of hunger strikers in the United States who were protesting the seizure of materials that had been donated to religious institutions in Cuba. The decision provoked lengthy debate, particularly between the Cuban and US experts, and involved a number of roll call votes which overturned the normal convention of voting by consensus and provided the first glimpse since the Vienna Conference of the international line-up on human rights issues. Finally, at the request of Mr. Martinez, a roll call was taken on the decision as originally proposed, which was adopted by six votes to four with seven abstentions. Tian Jin announced his support in ringing tones.(138)
Although a Chinese diplomat later complained about the automatic way in which the Western states lined up together in the roll call, what was more interesting was the fact that the expert from France voted against one Western motion and abstained on another. Also striking were the positions of Egypt, Bangladesh, and Japan, and the abstentions of the Russian Federation, Romania, and the Latin Americans. Explaining his abstention later, Mr. Joinet (France) expressed regret that a Cold War situation was recurring as it had between the Soviet Union and the United States,(139) and Mr. Saboia (Brazil) stated that he had abstained because politics should not enter into the Sub-Commission's work.(140) In reply, Mrs. Chavez (USA) stated that she had no intention of restarting the Cold War.(141)
However, it was during the voting on ltem 6 of the Agenda, which dealt with human rights violations in specific countries, that the tension in the Sub-Commission between principles, personalities, and politics came to a head. At the commencement of voting on 20 August, in packed and expectant meeting, Asbjorn Eide of Norway requested that on all forthcoming country situations draft resolutions should be voted on by secret ballot. After discussion, the Chairman ruled that he would first ask if the resolution was to be by consensus or by secret ballot.
It is to be noted that under the secret ballot procedure, all other country situation resolutions under ltem 6 were adopted, the exceptions only being that of the draft resolution on Tibet, where a motion of no action was adopted by secret ballot, and in the case of Sri Lanka, where the draft resolution was withdrawn. An analysis of the voting pattern yields the interesting fact that the resolutions on Kosovo (L. 15), Palestine and other Arab Territories occupied by Israel (L. 17), Myanmar (L.23), and the noaction motion on Tibet (L.26), were all adopted with seventeen votes in the affirmative.(142) In addition, on 25 August, under Item 10 on the Agenda, the Sub-Commission adopted by a secret ballot vote of seventeen in favor and seven against, with one abstention, a second no-action motion, this time on arbitrary and summary executions in which it would have expressed its deep concern at the reports of arbitrary and summary executions in Aceh, and would have encouraged the Indonesian authorities to invite the Special Rapporteurs of the Commission on Human Rights to visit Aceh and other parts of Indonesia with a view to assessing the situation relating to torture and arbitrary and summary executions.(143)
The debate which followed the introduction of the draft resolution on Tibet was a study in clumsy tactics and personality differences which only marginally disguised serious political undercurrents. The failure of the majority of experts speaking against the resolution to supply, or even to attempt to supply, persuasive policy vindications for their position only further emphasized the political nature of the considerations.(144)
Immediately after the introduction of Item L.26 on 20 August, British expert Claire Palley made an emotional declaration that there had been "intolerable" diplomatic pressures put on the Sub-Commission not to refer to human rights in the People's Republic of China. She voiced her opposition to the possibility of any "no-action" motions. She furthermore stressed that discussion between the parties on Tibet was long overdue, and that she had not moved the resolution in 1992 because she had been told by the then Chinese Ambassador that if she did it would be harmful to the discussion.(145)
Mr. Martinez of Cuba then affirmed that "we are against any pressure on experts," but that pressure should not be confused with explanation. Mrs. Attah (Nigeria) suggested that, in any case, "we are being lobbied by everyone," and that it was up to the experts to decide what to do. Mrs. Warzazi (Morocco), in agreement, complained that Palley's intervention was "over enthusiastic." She said that it was difficult to take a position that could be seen as a political one, that the draft resolution had not been accepted last year, and that "we should give them (the Chinese government) more time." Consequently, she suggested moving a no-action motion on the Tibetan issue. On the basis of his reservations on the text of the draft resolution, Mr. Maxim (Romania) expressed support for Mrs. Warzazi's motion, and Mrs. Ksentini (Algeria) complained that Mrs. Palley was trying to put pressure on members of the Sub-Commission not to pass a motion of no-action.
In contrast, Mrs. Chavez (USA) offered support for Palley (UK) and expressed puzzlement that such heavy pressure should be exerted to avoid addressing the issue. She asserted that the resolution was only asking for Chinese cooperation with the Special Rapporteurs and UN bodies so that there could be an understanding of the conditions in Tibet. Mr. Martinez (Cuba) thereupon expressed support for Mrs. Warzazi. Mrs. Attah (Nigeria) complained that she was being politicized and, as she was "very confused," wished to support the motion of non-action. Mr. Hakim (Bangladesh) stated that he had not been subjected to any pressure and, because of the inherent contradictions in the draft resolution, pledged support for the no-action motion.
In the face of such widespread resistance to her position, Mrs. Palley felt constrained to elaborate upon her earlier complaints. Commenting that she hoped her words were being recorded, she reported that the current Chinese Ambassador had threatened to break off all dialogue with Tibet if she moved the current resolution. He had also threatened that China's dialogue with the Sub-Commission would be broken off. She further noted that despite the fact that the experts were independent, it was the position of China that if a secret ballot were taken on the draft resolution, China would hold the government of each expert responsible for the outcome.
The ensuing silence in the conference room at these revelations was broken by Mr. Joinet (France) who assured Mrs. Palley that she had been recorded. He declared that he had also been under pressure, and, he added in a jocular manner, it made him feel "very important." Mrs. Ksentini (Algeria) then observed that because these were issues that were politicized, it was easiest to support the no-action motion. The Chinese Ambassador then attempted an intervention but the Speaker asked that he wait until after the voting.
After the adoption of the resolution (seventeen in favor, six against and two abstentions), Ambassador Jin again took the floor. He expressed his gratitude to the majority of the members of the Sub-Commission for adopting a motion of justice, and made a veiled reference to Mrs. Palley. The Chairman intervened to ask the Ambassador to "show good manners." Mr. Jin proceeded to clarify one point, claiming that what Mrs. Palley had said was "not factual." He said: "I feel regret for the distortion of facts," but did not elaborate.
The size of the affirmative vote for the no-action motion on Tibet was remarkable given the secret ballot. It shocked the NGOs, who regretted the initial over-hasty tactics of Mrs. Palley which had produced such an unfavorable reaction among the experts. However, the two main arguments for supporting the motion, the "politicization" of the issue and the Palley revelation that discussions on Tibet were ongoing and had therefore to await an outcome, appeared insufficient to justify the size of China's victory.
The Tibet vote had a decisive impact on the mood of NGOs in the Conference room. The similar decision on Aceh five days later simply confirmed that mood. Late in the afternoon of 26 August, therefore, on the eve of the closure of the session, NGOs made an attempt to reverse the general spirit of pessimism and to reassert the value system so quietly eroding. In a dramatic move, a spokesman for thirty NGOs took the floor and made a joint statement which expressed concern that the long-standing cooperation between the experts and NGOs was in danger of changing, as indicated by certain instances in the session.(146) The statement deplored the reduction of NGO speaking time on Items 7, 8, and 17 and called for sufficient time to be devoted to meaningful debate. It called for the improved willingness and availability of experts to engage in open discussion with individual NGOs. It added:
NGO representatives are unable to contribute freely if pressured by veiled or direct threats by governments not to address certain issues. This is particularly disconcerting where persons are threatened by repercussions to their family members, as happened during this session of the Sub-Commission. Equally, NGO representatives regard with deep concern the increased governmental interference and pressure that hinder the independence of experts.
The statement reminded experts of the importance of the Commission's guidelines in its resolution 1993/28, and called for the Sub-Commission to bring its work into line with it:
the credibility and effectiveness of the Sub-Commission as an expert human rights body are dependent on Governments nominating and the Commission electing as members and alternates of the Sub-Commission only individuals who possess genuine expertise in the field of human rights and who are able to act independently of their Governments.
In particular, the NGO statement pointed to certain resolutions in the current session on human rights in Sri Lanka, Tibet, and East Timor which "could bring into question the credibility and effectiveness of the Sub-Commission." It expressed concern about "instances in which the defensive positions of governments with regard to their human rights record and the position of independent experts on those same issues, are blurred." It compared unfavorably the Sub-Commission's decisive action on the issue of thirty hunger strikers in the United States with the "far more serious human rights violations in that country and elsewhere, including Tibet and Sri Lanka, on which it refused to take note." This, it stated, was disappointing, because "the Sub-Commission should provide the best hope for a nonselective application of human rights standards." It concluded:
The Sub-Commission is and should remain a valuable resource for human rights defenders world-wide and as a vital part of the UN human rights system. We offer this statement in the spirit of cooperation and continued work that is necessary to maintain the high standards of the Sub-Commission.
Concluding the proceedings the following day, the Jordanian Chairman moved to adopt the report of the forty-fifth session and to summarize its achievements. He was heartened by the fact that the session's debate had been relatively free of acrimony and that the trains had "run on time." But, he observed, there was no cause for complacency about the state of human rights. Many, he observed, were more cynical as a result of involvement in human rights in the United Nations. He noted that while he was glad that the Sub-Commission had taken action on Bosnia, there were other situations in the world where it did not take action. "We are," he said, "morally responsible for our inaction." Announcing that he would not seek reelection in the following year, he declared the meeting closed.
The moral fatigue felt by the majority of participants at the end of the session was indicated by the early closure of the day's proceedings, the failure of the final report to appear, and the apparent lack of interest in discussing its details. As the experts concluded with a vote of thanks to the Chairman, the attempt by the expert from Morocco, Mrs. Warzazi, to infuse some life into the inert body of the Sub-Commission by a spirited solo rendition of Auld Lang Syne, faded away into silence, with only Tian Jin trying to jolly it along.
Summarizing the outcome of the session, experienced NGO spokespersons attributed the unprecedented negative vote on Tibet to a variety of factors. First, they saw the UN human rights system as a whole as suffering from fatigue after the Vienna Human Rights Conference.(147) In addition, they believed that the Chinese government had used the Vienna process to consolidate its position. Although China's representatives had not achieved their main objective of offsetting universality with cultural and historical relativism, as they had sought in the preceding preparatory conferences, they were still pursuing relativity as a lively and current issue.(148) At Vienna, the Chinese had claimed that the United States wanted strategic control and had thereby rallied the South around them. Of the South, only the Latin Group had moved on allegiances; during the forty-fifth session they either voted with China or abstained. They had sought to avoid controversy and had only broken out of this pattern with their vote on East Timor, because of their ties with Portugal. When the vote was controversial, they voted in favor, when on a matter of substance, they abstained.(149) Because of the strong South support, even a vote on China would not have been successful. A vote on Tibet was rendered even more problematic because of universal concern about the divisive influences of the issue of self-determination.(150)
Observers of the proceedings, on the other hand, perceived Western states and their experts as being divided. Complex reasons such as guilt about the historical depredations of imperialism, Western support for market reforms, fear lest Chinese instability produce a flood of Chinese refugees, and a fear of isolating China all combined to prevent a united western front. Western states were also afraid of taking an isolated stand on China's human rights in case they lost out economically vis-a-vis other states who did not. In their lobbying activities, the Chinese had harnessed a multitude of diplomatic arguments which exploited each and all of these fears.
Speaking privately after the vote, Chinese diplomats hailed their success as a sign that China was no longer "a victim." China was apparently relieved that a vote had been avoided which might have cast a shadow on China's still lively hopes for the year 2000 Olympics. Both China and the NGOs were alike in regarding this session as a watershed in the monitoring of China's human rights, although from different points of view. A number of NGO representatives stressed that the UN system was only part of the overall human rights regime, and that other monitoring channels were available. One British NGO representative suggested the advisability of directing more effort into the bilateral MFN process in the United States.
VII. MULTILATERAL AND BILATERAL MONITORING, 1993--1994
Comparing China's participation in the forty-first session of the Sub-Commission with the forty-fifth, it was clear that Chinese diplomacy had become considerably more astute, and less crudely ideological. The pressures on its diplomats to avoid international censure were equally strong in both cases. Nevertheless, the resort to the principle of nonintervention and sovereignty, so deafening in 1989, was only a faint echo in 1993. Ambassador Jin was more sophisticated and persuasive than his predecessor, although on occasions, as Mrs. Palley's evidence indicated, he also resorted to veiled threats. Chinese diplomats no longer invoked the right of reply, and when China was attacked, the observers kept their counsel, although venting their frustration in private conversation. They also refrained from intervening to prevent debate, preferring to rely on the skillful procedural maneuvering of the expert from Cuba. Apart from these procedural adjustments, by 1993 China had abandoned the non-intervention argument as its principal defence, and had indicated a measure of acquiescence with the human rights norms in the International Bill of Rights and the Vienna Declaration.
However, if China had made concessions to the international human rights regime, the regime was increasingly bending to China. Both the fading memories of Tiananmen, and geopolitical changes had worked to China's diplomatic advantage. With the dissolution of the Soviet Union, China's unique status as a great, socialist, and Third World power, supportive of Third World goals, gave it increased confidence to pursue its interests in human rights fora without excessive bluster or fanfare. The lack of Third World unanimity in respect of human rights, so clearly displayed in the 1989 Sub-Commission session, was now no longer an issue. In addition, the great surge in China's economic development in 1992 and 1993 brought increasing respect from both North and South. Nevertheless, in an effort to build the widest possible constituency among non-Western states, China continued to adopt a victim mentality in relation to the West in a manner which combined a defiant cultural relativism with rhetoric occasionally reminiscent of the Cold War.
At the same time, China had made some constructive contributions to the regime since 1989, along lines also supported by some western experts.(151) It had encouraged to some degree a different operationalization of human rights by supporting economic, social, and developmental rights but had excluded significant resolutions in this respect which would have supported individual economic rights, as opposed to the state's economic rights--such as the right to income distribution. Less constructively, China had challenged the basic norms of the Sub-Commission as incorporated in its activities and institutions. It had supported moves to disturb the relations between NGOs and the Sub-Commission and had undertaken action which undermined the principle of the independence of experts. It had used threats and even intimidation in achieving its goals. On balance, its involvement in the forty-fifth session was more destructive of existing human rights norms than instrumental in reoperationalizing or reorienting them in a constructive manner. Concerned about the implications of these developments for the monitoring of China's human rights, as the forty-fifth session of the Sub-Commission came to a close, human rights activists looked both to MFN and to other parts of the UN human rights system to bring pressure to bear on the situation of China's human rights.
Only six months later, in March 1994, both the multilateral mechanisms and the MFN mechanism were put simultaneously to the test. At the fiftieth session of the Human Rights Commission in February-March, the draft resolution "Situation of Human Rights in China" expressed concern at continuing reports of violations of human rights in China and Tibet, and called upon the government of China to take further measures to ensure the observance of all human rights, invited the government to continue to cooperate with all special rapporteurs and working groups, and requested the Secretary-General to bring the resolution to the attention of China's government and to prepare a report for the Commission at its fifty-first session on the situation of human rights in China.(152) It was, however, a mild document which noted "recent positive developments," including the release of some political prisoners and beginnings of reform of the Chinese legal system. As at the preceding Commission session, however, the Chinese themselves proposed a "no-action" motion, which was carried on 9 March by twenty votes to sixteen with seventeen abstentions. The narrow majority of four was one less than the preceding year. An analysis of the vote suggests that, had Poland and Romania continued to vote against the resolution as in 1993, instead of abstaining, and had two Latin American states also voted for it, the result would have been a tie of twenty against, twenty in favor. If, in addition, other Latin American states could also have been persuaded to change from an abstention to a no vote, the 1994 no-action motion could have been overturned. The contingent nature of China's success was underlined by the fact that up until the vote the Polish delegation had insisted that it intended to vote against the no-action motion. At the last minute China's Foreign Minister had persuaded Poland's Foreign Minister to change.(153) Poland in turn then persuaded Romania.
Thus, although one NGO observer complained that the narrow margin of the vote could not be regarded as "any great success" for the China lobby group, it nevertheless suggested that the Human Rights Commission was becoming a more likely forum for the successful monitoring of China's human rights than the Sub-Commission. Over a period of three years the vote had changed from twenty-seven in favor of the "no action" motion to fifteen against with ten abstentions (1992), to twenty-two in favor, seventeen against and twelve abstentions (1993), to twenty votes in favor, sixteen against and seventeen abstentions (1994). The decreasing majority was due not to the change in numbers against, which remained reasonably constant, but due to an increase in the number abstaining rather than voting in favor. That change mainly reflected the alteration in the Eastern European and Latin American vote. But the continuing success of the no-action motion, despite the changing margin, was due to other factors. In Geneva the Chinese diplomats had worked extremely hard and had been very effective in their lobbying, organizing supporters to speak on their behalf. On the other hand, the US and European group had misjudged the mood of the Commission and, two days before the vote, were still certain that a noaction resolution would be defeated by perhaps a majority of four against China.(154)
Some NGO observers and journalists claimed that the US State Department was not sufficiently determined to criticize China's human rights record, because the United States could have obtained the numbers to defeat the no-action resolution.(155) On the US side, diplomats claimed that they had lobbied vigorously but, due to the difficulty of obtaining a draft acceptable to all, had once again been faced with a problem of inadequate time.
At the same time, some critics within the United States claimed that the State Department was too committed to monitoring China's human rights on a bilateral basis.(156) The debate for and against the linkage between human rights and MFN demonstrated the lack of unity within the United States on the issue, with the business community in particular opposed to the linkage. China's leadership perceived this lack of unity as underscoring the vital importance of China to the US economy. In addition, as the introduction of market reforms made China increasingly powerful in economic and strategic terms, its hold on domestic stability diminished. The loss of economic and social rights entailed in the reforms, and the accompanying problems of corruption and inflation, caused an unprecedented degree of social unrest both in the cities and the countryside.
For both reasons, China was no longer prepared to tolerate the challenge to its sovereignty which US bilateral monitoring represented. A final source of obduracy was the humiliating failure of China's bid for the Olympics in the Year 2000.(157) As US Secretary of State Warren Christopher's exchanges with his counterparts in Beijing from 11 March indicated, China was no longer responsive to the pressures which had earlier influenced the release of prisoners of conscience and the publication of the human rights White Papers.(158) Indeed, China's readiness to reject these pressures even became a means of legitimation for the current leadership. The noninterference argument which had almost disappeared from China's self-defence in multilateral human rights forums was now resurrected, both in respect of bilateral and multilateral monitoring.(159)
A month later, these tactics were modified. The release of two leading dissidents, Wang Juntao in late April, and Chen Ziming in May, and an agreement in principle to allow the International Red Cross to visit its detention centers appeared to signal China's return to what Asia Watch has called its "hostage politick."(160) Other dissidents, however, continued to be arrested as the fifth anniversary of the Tiananmen crackdown approached. An Asia-Watch report, subsequently repudiated by China, identified about five hundred more lesser known Tiananmen protesters still imprisoned since 1989.(161) The principal figure of China's Democracy Movement, Wei Jingsheng, after a temporary release, was again put under arrest and reports, again denied by China, circulated that he was about to be tried for treason as a result of his meeting with US Assistant Secretary of State John Shattuck on 27 February.(162) On 12 May, in talks with visiting Malaysian Prime Minister Mahathir Mohammed, President Jiang Zemin claimed that "Tiananmen was a bad thing turned good."(163)
The inconsistency of this "hostage politick," and the arbitrary change in tactics only confirmed the contingent nature of China's human rights responses in the context of its ongoing domestic power struggle and its concerns about social instability. Moreover, the obdurate behavior towards visiting Australian Minister for Foreign Affairs and Trade, Senator Gareth Evans, and French Prime Minister Edouard Balladur, particularly in relation to the re-arrest of Wei Jingsheng and Xu Wenli, also demonstrated the extent to which internal imperatives of stability were impeding China's response to bilateral monitoring by middle powers.(164) These push-me-pull-you tactics came to an end on 26 May with President Clinton's announcement of the formal delinkage of human rights and MFN. A new era of Sino-US relations began in which the pursuit of US human rights objectives were to take a different turn.
This case study suggests that, whether by bilateral or multilateral means, the difficulties in monitoring the ongoing, systematic abuse of human rights by a powerful state are enormous, except under conditions internationally perceived as a human rights crisis. Although multilateral and bilateral monitoring have different results, the effects of which may be complementary, in China's case both have proved problematic. Multilateral mechanisms have shown themselves to be particularly susceptible to the impact of geopolitical change. Thus, although the defection of the former Soviet Union and Eastern European states from the "East" bloc has strengthened the Western human rights bloc, it has left China as the sole great power to champion the values of the South. This status has allowed it to trade such favors as a human rights resolution on Iraq in the Sub-Commission for an agreement to overlook a resolution on China.
China's new found economic and strategic strength has also altered its status in the eyes of the West. Consequently, its assertive and even ruthless tactics in UN forums have encountered less organized resistance from both the North and the South since the high point of UN censure in 1989. For this reason, the China vote has not reflected the structural political changes within the international community resulting from the easing of the Cold War, even though the Commission has now emerged as a potentially more effective monitoring institution of China's human rights than the Sub-Commission.
Moreover, some features of the Sub-Commission and the Commission, such as the independence of experts, democratic interaction with NGOs, and an unspoken gentleman's agreement on the allowable limits of diplomatic lobbying, have been openly challenged by China. Its impact on the international human rights regime is thus potentially disruptive. China's immediate responses to attempts by multilateral bodies to influence its human rights policies have also been evasive and aimed at avoiding a Sub-Commission or Commission resolution which could undermine its more strategic goals. Paradoxically, at least until 1994, the main source of pressure for obtaining immediate domestic improvements such as the release of political prisoners appears to have been seen by western liberal democracies, Chinese dissidents, NGOs and Chinese authorities alike to be the bilateral instrument of the US threat to remove China's MFN status.
Nevertheless, as this case study has demonstrated, the multilateral process has crucial strengths. In the short term, the Human Rights Commission seems to be nearing a situation where, given renewed political will, the no-action motion on China might be overturned. In the long term, the structural and normative resilience of UN multilateral monitoring mechanisms is significant. Normatively, as the forty-first session of the Sub-Commission indicated, a certain basic consensus has been built up over the decades within UN human rights bodies that the gross and systematic abuse of human rights within a state is the business of the international community, irrespective of the principle of non-intervention.
Likewise, it has long been accepted by both North and South that monitoring should focus on the condition of civil and political rights, even if many states also wish to expand the scope of monitoring to include economic, social and developmental rights. China's interaction with the international human rights regime since 1989 has demonstrated its gradual acceptance of these custom-based and historically evolved norms. Indeed, as the foregoing analysis indicates, China has invariably based its self-defense on its formal reading of its obligations under the UN Charter and international human rights law. Thus, it may be argued that UN monitoring imposes standards which have greater long term, if less visible short term, effects than bilateral monitoring.
Finally, multilateral bodies have shown themselves capable of procedural adjustments designed to avoid excessive political pressure within these forums such as the introduction of the secret ballot on Item 6 cases in the Sub-Commission. Similar structural and normative strengths are exhibited in the treaty-based human rights bodies like the Committee Against Torture and the Committee for the Elimination of Racial Discrimination, the specialized agencies like the ILO and the World Bank, and in the mandates and activities of the Special Rapporteurs on torture, on disappearances, and on summary executions.(165)
In contrast, bilateral mechanisms lack the collective, consensual, historical and institutionally based moral authority of such multilateral bodies. They also lack consistency, both in standards and application. Certainly, bilateral controls are more easily imposed, less vulnerable to collective opposition, and more accessible to NGO pressure. They take many forms and are assumed by both large and middle powers. In the latter case, with respect to China, they have been arguably more successful when the initiative has come from the target state itself, as the modest achievements of the Australian and European human rights delegations to China would appear to indicate.(166)
They are particularly valuable when applied as a secondary source of pressure to enhance the effectiveness of multilateral mechanisms. However, in general, bilateral monitoring like MFN which seeks direct, concrete results has the disadvantage that it is mainly effective when imposed by a powerful state upon a less powerful state, and may lose efficacy when the power balance between the two states equalizes, when it becomes inherently unstable, or when the domestic problems of the target state prevail over its foreign policy priorities.(167)
Moreover, as the case of the linkage drawn between China's human rights and its role in pressuring North Korea to accept IAEA inspection attested, bilateral human rights mechanisms are highly vulnerable to tradeoffs against strategic interests. Even when not used as bargaining chips, the monitoring aspect of the bilateral relationship may get mixed up with competing economic and strategic imperatives.(168)
Finally, strong bilateral mechanisms suffer from the defect that they derive their force from open publicity, but in the very process expose themselves to the charge of undermining the sovereignty of the target state. External pressures are but one influence on a state's human rights. Equally important is its citizens' growing awareness of their dignity, under the influence of domestic human rights support groups. That dignity resides both in a sense of individual rights and a sense of nationhood and citizenship. An individual's patriotism may be offended by open bilateral pressures, and even if this is not the case, the struggle for human rights may be delegitimised in the eyes of the local community. Vigorous bilateral monitoring which strengthens the resistance of the target state interferes with the flow of ideas, information, and disinterested support currently filtering through its permeable boundaries. It thus runs the risk of failing to maximize the potential of internal and external pressures on human rights to reinforce each other.
(2.)See Foreign Policy; Chinese Boxes, THE ECONOMIST, 30 Apr. 1994, at 28.
(3.)Maxime Tardu, The Effectiveness of United Nations Methods and Mechanisms in the Field of Human Rights: A Critical Overview, in Status Preparatory of Publications, Studies and Documents for the World Conference: Report of the Secretary General, World Conference of Human Rights Preparatory Committee, 4th Sess., Provisional Agenda Item 5, at 37, U.N. DOC. A/CONF.157/PC/60/Add.5 (1993).
(4.)This option is one being considered by Secretary of State Warren Christopher in the aftermath of the presidential announcement. In a speech to the Asia Society in New York on 27 May, he said that the United States would now pressure China by intensifying diplomatic discussions with Beijing, supporting human rights groups, working through the United Nations, contacting dissidents, establishing a new Radio Free Asia and helping US businesses develop a code of principles which companies should follow when doing business in China. See China News Digest (CND) (US, Executive Editor: Li Xiaowen), 30 May 1994. See also President Clinton's article in Los Angeles Times, 31 May 1994.
(5.)See, e.g., Philip Alston, The Commission on Human Rights, in THE UNITED NATIONS AND HUMAN RIGHTS: A CRITICAL APPRAISAL 164 (Philip Alston ed., 1992); Ann Kent, The Limits of Ethics in International Politics: The International Human Rights Regime, 16 ASIAN STUDIES REVIEW 26--35 (1992).
(6.)See International League for Human Rights, Business as Usual ...?: The International Response to Human Rights Violations in China, May 1991; International League for Human Rights, Getting Down to Business: The Human Rights Responsibilities of China's Investors and Trade Partners, July 1992, at 43--50; James D. Seymour, The International Reaction to the 1989 Crackdown in China (Feb. 1990) (East Asian Institute, Columbia University); and James D. Seymour, "The Crux of the Struggle": Human Rights in Chinese Foreign Relations, in SAMUEL S. KIM, CHINA AND THE WORLD: CHINESE FOREIGN RELATIONS IN THE POST--COLD WAR ERA (forthcoming 1994).
(7.)Human rights violations by Permanent Members of the Security Council have been targeted, but they have either been specific and not wide-scale, or they have occurred outside the territory of the offending state. For instance, Schwelb, The International Court of Justice and the Human Rights Clauses of the Charter, 66 AM. J. INT'L L. 337, 341 (1972) (cited in Robin M. Maher & David Weissbrodt, The 41st Session of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 12 HUM. RTS. Q. 290, 305 n.66 (1990)) notes the UNGA request that the USSR allow Soviet women married to foreigners to join their husbands in other countries.
(8.)Theo van Boven, Identifying Policies and Activities Harmful to Human Rights, in PEOPLE MATTER: VIEWS ON INTERNATIONAL HUMAN RIGHTS POLICY 89, 89 (1982).
(9.)For the best analyses of the functions of the Sub-Commission, see Asbjorn Eide, The Sub-Commission on Prevention of Discrimination and Protection of Minorities, in THE UNITED NATIONS AND HUMAN RIGTHS: A CRITICAL APPRAISAL, supra note 5, at 211--64; VAN BOVEN, supra note 8, at 96.
(10.)Joint Statement by Non-Governmental Organizations to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th Sess., 26 Aug. 1993.
(11.)As of August 1993, the membership comprised experts from the following states: (Africa) Algeria, Egypt, Ethiopia, Morocco, Nigeria, Senegal, and Tunisia; (Asia) Bangladesh, China, India, Japan, and Jordan; (Eastern Europe) Romania, Russian Federation, and Ukraine; (Latin America and Caribbean States) Argentina, Brazil, Colombia, Cuba, and Mexico; (West European and Other States) Belgium, France, Greece, Norway, United Kingdom, and United States. See 1992 UNITED NATIONS HANDBOOK 91 (New Zealand, Ministry of External Relations and Trade, 1992).
(12.)Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Thirtieth Session, at [paragraph] 14, U.N. Doc. E/CN.4/Sub.2/399 (1977); VAN BOVEN, supra note 8, at 90.
(13.)Alston, supra note 5, at 193.
(14.)Eide, supra note 9, at 223.
(15.)See generally, Robert F. Drinan & Teresa T. Kuo, The 1991 Battle for Human Rights in China, 14 HUM. RTS. Q. 21 (1992); and TAN QINGSHAN, THE MAKING OF US-CHINA POLICY: FROM NORMALIZATION TO THE POST--COLD WAR ERA 57--86 (1992).
(16.)Under current law, the president must formally notify Congress of his intent to renew China's MFN status by 3 June, ironically the same date of the Tiananmen massacre. See Drinan & Kuo, supra note 15, at 23.
(17.)See SAMUEL S. KIM, CHINA, THE UNITED NATIONS AND WORLD ORDER 485 (1979); ANN KENT, BETWEEN FREEDOM AND SUBSISTENCE: CHINA AND HUMAN RIGHTS 100--04 (1993).
(18.)See generally, Soviet "Psychiatric Hospitals"--Prisons in Disguise, PEKING REV., 11 Mar. 1977, at 20; see Absurd Champion of "Human Rights," PEKING REV., 11 Mar. 1977, at 23, 24.
(19.)Feng Zhuoran, Gu Chunde eds., RENQUAN LUNJI ("COLLECTED ESSAYS ON HUMAN RIGHTS") 233 (1992).
(20.)See generally, UNGA Resolutions and Decisions Adopted by the General Assembly, in General Assembly press releases for the 26th--36th sessions (1971--1981).
(21.)See Roberta Cohen, People's Republic of China: The Human Rights Exception, 9 HUM. RTS. Q. 451 (1987).
(22.)Pang Sen, DANGDAI RENQUAN ABC ("CONTEMPORARY HUMAN RIGHTS ABC") 148 (1991).
(23.)Id. at 150--52.
(24.)Id. at 138.
(25.)Id. at 148.
(26.)Id. at 152--53.
(27.)Summary Record of the 17th Meeting, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 39th Sess., at 11--12, U.N. Doc. E/CN.4/Sub.2/1987/SR.17 (1987).
(28.)Katherine Brennan, Reed Brody & David Weissbrodt, The 40th Session of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 11 HUM. RTS. Q. 295, 302 (1989).
(31.)Reed Brody & David Weissbrodt, Major Developments at the 1989 Session of the UN Commission on Human Rights, 11 HUM. RTS. Q. 586, 587 (1989).
(32.)See Summary Record of the 18th Meeting, Commission on Human Rights, 45th Sess., at 13, U.N. Doc. E/CN.4/1989/SR.18 (1989) (comments of Mr. Nchama of the International Movement for Fraternal Union Among Races and Peoples).
(33.)Summary Record of the 52nd Meeting, Commission on Human Rights, 45th Sess., at 17, U.N. Doc. E/CN.4/1989/SR.52 (1989).
(34.)Summary Record of the First Part of the 56th Meeting, Commission on Human Rights, 45th Sess., at 2, U.N. Doc. E/CN.4/1989/SR.56 (1989).
(35.)Interview with government delegate, 11 Aug. 1992.
(36.)See Question of the Violation of Human Rights and Fundamental Freedoms, including Policies of Racial Discrimination and Segregation and of Apartheid, in all Countries, with Particular Reference to Colonial and other Dependent Countries and Territories: Report of the Sub-Commission Established Under the Commission on Human Rights Resolution 8 (XXIII), Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th Sess., Provision Agenda Item 6, U.N. Doc. E/CN.4/Sub.2/1993/NGO/16 (1993).
(37.)Summary Record of the 15th Meeting, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 41st Sess., at 12--13, U.N. Doc. E/CN.4/Sub.2/1989/SR.15 (1989).
(38.)Id. at 16.
(40.)See Nihal Jayawickrama, Human Rights Exception No Longer, in THE BROKEN MIRROR 359 (George Hicks ed., 1990).
(41.)Summary Record of the 16th Meeting, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 41st Sess., at 3, U.N. Doc. E/CN.4/Sub.2/1989/SR.16 (1989).
(43.)Summary Record of the 17th Meeting, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 41st Sess., at 11--12, U.N. Doc. E/CN.4/Sub.2/1989/SR.17 (1989).
(44.)Summary Record of the 19th Meeting, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 41st Sess., at 5--7, U.N. Doc. E/CN.4/Sub.2/1989/SR.19 (1989).
(45.)Id. at 7.
(46.)Id. at 13.
(47.)Summary Record of the 23rd Meeting, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 41 st Sess., at 13, U.N. Doc. E/CN.4/Sub.2/1989/SR.23 (1989).
(48.)Id. at 16--17.
(49.)Summary Record of the First Part of the 37th Meeting, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 41st Sess., at 4--5, U.N. Doc. E/CN.4/Sub.2/1989/SR.37 (1989).
(50.)Id. at 6.
(51.)Statement by the Chinese Delegation on the Adoption of a Resolution Concerning China by the Sub-Commission on Prevention of Discrimination and Protection of Minorities at its 41 st Session, delivered on 31 Aug. 1989, Maher & Weissbrodt, supra note 7, at 295--96, n. 25.
(52.)Interviews with NGO representatives, Geneva, August, 1993.
(53.)Maher & Weissbrodt, supra note 7, at 300, 305.
(54.)Jayawickrama, supra note 40, at 362.
(55.)Id. at 357.
(56.)Id. at 358.
(57.)NGOs concentrating on the situation in China, in order of intervention, were: International Movement for Fraternal Union among Races and Peoples, International Federation for Human Rights, Amnesty International, Pax Christi International, International Confederation of Free Trade Unions, International Human Rights Law Group, International League for Human Rights, International Commission of Jurists, World University Services, World Federation of Trade Unions, World Confederation of Labour, and the International Fellowship of Reconciliation.
(58.)He represented the Arab Organization for Human Rights, the Asian Cultural Forum on Development, International Council of Jewish Women, the International Federation for Human Rights, the International Organization for the Elimination of All Forms of Racial Discrimination, La Ligue Nationale des Droits de l'Homme, Pax Christi International, Pax Romana, the Procedural Aspects of International Law Institute, Terre des Hommes, and the World Union for Progressive Judaism.
(59.)U.N. Doc. E/CN.4/Sub.2/1989/SR.17 (1989), supra note 42, at 2--3.
(60.)McDermot observed: "China had voluntarily accepted obligations under treaties it had signed which required it to ensure that human rights were enjoyed by its citizens." Id. at 2. China was participating in the Commission on Human Rights and had secured the election of an expert to the Sub-Commission. China, he claimed, "had repeatedly acknowledged the right of the international community to scrutinise the human rights performance of other countries and had also voted in favour of resolutions that had sent human rights investigators to countries such as Afghanistan, South Africa and Chile and had joined in consensus resolutions in respect of conditions in other parts of the world." Id. at 3. As a result, China was now required "to review and fulfil its responsibilities to its own citizens and its commitments to the international community." Id.
(61.)The use of secret ballot for item 6 was initially conceded for the forty-first session only; subsequently, an amendment allowed this procedure to continue to be used.
(62.)Maher & Weissbrodt, supra note 7, at 300.
(63.)Adrien-Claude Zoller, Analytical Report of the 1989 Sub-Commission, 6 HUM. RTS. MONITOR 6 (1989); see also Summary Record of the 36th Meeting, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 41 st Sess., at 3, U.N. Doc. E/CN.4/Sub.2/1989/SR.36 (1989).
(65.)See analysis of vote, Maher & Weissbrodt, supra note 7, at 301 n.50.
(66.)Summary Record of the 19th Meeting, U.N. Doc. E/CN.4/Sub.2/SR.19, at 7--8.
(67.)Many interviewees acknowledged the important contribution of Louis Joinet (France).
(68.)Maher & Weissbrodt, supra note 7, at 306.
(69.)JOURNAL DE GENEVE, 5 Sept. 1989, in Zoller, supra note 63, at 10.
(70.)U.N. Doc. A/44/504, at 2 (6 Sept. 1989).
(71.)Interview with government delegate, 11 Aug. 1992.
(72.)U.N. Doc. A/44/545, at 2 (21 Sept. 1989).
(74.)U.N. Doc. E/CN.4/1990/52 (30 Jan. 1990).
(75.)Adrien-Claude Zoller, North-South Tension and Human Rights, 8 HUM. RTS. MONITOR April 1990, at 9. One African diplomat reportedly was paid a visit in his tiny hotel by ten Chinese who had come to explain how best to vote in order to avoid unnecessary complications. Id.
(76.)Id. at 6.
(77.)Interview with government delegate, 11 Aug. 1992.
(78.)Interview with government delegate, 11 Aug. 1992.
(79.)U.N. Doc. E/CN.4/1990/L.47, at 12.
(80.)Position of the Chinese Delegation on the Draft Resolution "Situation in China," 1 (Geneva, Feb. 1990).
(81.)Interview with government delegate, 11 Aug. 1992.
(83.)See Reed Brody, Maureen Convery and David Weissbrodt, The 42nd Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, 13 HUM. RTS. Q. 260, 274 (1991). Author has also drawn upon a confidential discussion.
(84.)Id. at 266--68.
(85.)Id.; Summary Record of the 23rd Meeting, U.N. Doc. E/CN.4/Sub.2/1990/SR.23, at 13; Summary Record of the 24th Meeting, U.N. Doc. E/CN.4/Sub.2/1990/SR.24, at 8.
(86.)Summary Record of the 23rd Meeting, U.N. Doc. E/CN.4/Sub.2/1990/SR.23, at 13.
(87.)Summary Record of the 34th Meeting, U.N. Doc. E/CN.4/Sub.2/1990/SR.34, at 10.
(88.)Summary Record of the 50th Meeting, U.N. Doc. E/CN.4/1991/SR.50, at 25.
(92.)Summary Record of the 54th Meeting, U.N. Doc. E/CN.4/1991/SR.54/Add.1, at 9.
(93.)Karen Reierson & David Weissbrodt, The Forty-Third Session of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities: The Sub-Commission under Scrutiny, 14 HUM. RTS. Q. 232, 246 (1992).
(95.)Discussion with senior UN human rights expert, Geneva, 18 Aug. 1993.
(97.)Summary Record of the 27th Meeting, U.N. Doc. E/CN.4/Sub.2/1991/SR.27/Add.1, at 6--7.
(98.)Id. at 8.
(100.)Interview with government delegate, 19 Apr. 1993.
(101.)Joe W. (Chip) Pitts & David Weissbrodt, Major Developments at the UN Commission on Human Rights in 1992, 15 HUM. RTS. Q. 122, 142 (1993).
(102.)B.G. Ramcharan, Strategies for the International Protection of Human Rights in the 1990s, 13 HUM. RTS. Q. 155, 155--56 (1991).
(103.)Summary Record of the 28th Meeting, U.N. DOC. E/CN.4/1992/SR.28, at 18.
(104.)Interview with government delegate, 11 Aug. 1992.
(105.)Adrien-Claude Zoller, The UN Human Rights Commission 1992, 16 HUM. RTS. MONITOR 24 (April 1992).
(106.)Pitts and Weissbrodt, supra note 101, at 141.
(107.)Id.; and interview with government delegate, 19 Apr. 1993.
(109.)Zoller, supra note 105, at 24; and interviews with NGO representatives, Geneva, Aug. 1994.
(110.)U.N. Doc. decision 1992/116, ch. 11, [sections] B in E/1992/22E/CN.4/1992/84, Supp. No. 2.
(111.)See voting on draft resolution E/CN.4/1992/L.49/Rev.1 in E/1992/22E/CN.4/1992/84, Supp. No. 2, at 286.
(112.)Private discussions with government delegates, Apr. 1993; Pitts and Weissbrodt, supra note 101, at 142.
(113.)Adrien-Claude Zoller, Analytical Report of the 44th Session of the Sub-Commission, 17--18 HUM. RTS. MONITOR 21 (Sept. 1992).
(114.)Summary Record of the 18th Meeting, U.N. Doc. E/CN.4/Sub.2/1992/SR. 18, at 17.
(115.)Zhonghua renmin gongheguo guowuyuan bangongshi ('Information Office of the State Council of the People's Republic of China'), Zhongguo de renquan zhuangkuang ('Human Rights in China') (1991).
(116.)Summary Record of the 38th Meeting, U.N. DOC. E/CN.4/1992/SR.38, at 14.
(117.)For a detailed analysis of this new right, and the White Paper, see KENT, supra note 17, at 222--30. For human rights in China, see also Kent, Waiting for Rights: China's Human Rights and China's Constitutions, 1949--1989, 13 HUM. RTS. Q. 170 (1991).
(118.)Summary Record of the 66th Meeting, U.N. DOC. E/CN.4/1993/SR.66, at 11--14.
(119.)Statement by Ms. Park (Canada), Summary Record of the 70th Meeting, U.N. DOC. E/CN.4/1993/SR.70, at 5.
(120.)Summary Record of the 40th Meeting, U.N. DOC. E/CN.4/1993/SR.40, at 13.
(121.)Id. at 14.
(122.)Summary Record of the 45th Meeting, U.N. DOC. E/CN.4/1993/SR.45, at 19.
(123.)Id. at 20.
(124.)U.N. DOC. E/CN.4/1993/L.104.
(125.)Adrien-Claude Zoller, The U.N. Human Rights Commission 1993, 20 HUM. RTS. MONITOR 3, 37 (1993).
(126.)The following account is based largely on the author's own notes, taken at the session.
(127.)Interview with senior UN human rights experts, Geneva, 26 Aug. 1993.
(128.)Interview with Michael Van Walt, Geneva, 27 Aug. 1993.
(129.)Statements by Claire Palley (United Kingdom) and Louis Joinet (France), 45th Sess. of the Sub-Commission, 20 Aug. 1993.
(130.)Although each observer state was allocated only two places in the semi-circle of state seats arranged around the inner circle of experts, the Chinese diplomatic presence in the conference room normally averaged between four to five officers. The formal list of Chinese government participants amounted to seven officials, the same number as Great Britain and Sri Lanka, and less than that of the Indonesian delegation (nine), the United States (eight), and the United Arab Republic (eight) delegations. However, rather than rotating separately, they were present in groups.
(132.)Author's notes, 6 Aug. 1993, at 15; cf. UN Press Release (French) HR/3474, at 4.
(133.)Original document, 4 Aug. 1993, in Chinese, at 1--2.
(134.)Original document, 12 Aug. 1993, Engl. transl., at 5.
(135.)Id. at 6.
(136.)Brief criticisms of China's human rights and particularly its Tibetan policies were contained in statements by Habitat, World University Service, and Amnesty International. Major critiques were contained in the statements of the Federation Internationale des Ligues des Droits de I'Homme on Items 10 and 11, the International Association of Educators for World Peace on Item 10, the International League for the Rights and Liberation of Peoples on Item 10, the World Organization against Torture on Item 6, and Pax Christi International on Item 6. In addition, two briefing sessions on the current situation of human rights in China, publicized in leaflets widely distributed in the conference room, were held in UN meeting rooms during the month. Screening the television documentary, Laogai - Inside the Chinese Gulag, the seminars were supported by the Federation Internationale des Droits de L'Homme, International Educational Development and the International Fellowship of Reconciliation. On 13 August, moreover, representatives of NGOs signed a joint Press Statement expressing "deep concern at the possibility that the International Olympic Committee will award the Olympics for the Year 2000 to the city of Beijing." It was co-sponsored by Asian Cultural Forum on Development; International Association of Educators for World Peace; International Campaign for Tibet; International Coalition for Human Rights in China; International Educational Development; International Fellowship of Reconciliation; Korean Council for the Women Drafted for Sexual Slavery by Japan; Observatorie Internationale des Prisons; Swiss Federation of Tamil Associations; and World Organization Against Torture.
(137.)For instance, it was Mr. Martinez who intervened to mediate between Mrs. Palley and the Chinese Ambassador when the former complained about Chinese pressure on 20 August. Similarly, it was Mr. Martinez who threatened to respond to the NGO critique of the Sub-Commission, which included many aspects of Chinese activities, immediately after it was delivered on 26 August.
(138.)In favor: Martinez (Cuba); Hakim (Bangladesh); Heller (Mexico); Ramadhane (Tunisia); Sachar (India); Tian Jin (China); Against: Bossuyt (Belgium); Chavez (USA); Eide (Norway); Palley (UK). Abstaining: Chernichenko (Russian Federation); Despouy (Argentina); Yokata (Japan); Joinet (France); Khalil (Egypt); Maxim (Romania); Saboia (Brazil).
(139.)Author's notes, at 53; and U.N. Press Release HR/3487, 16 Aug. 1993, at 1a.
(142.)Kosovo: Adopted seventeen to four with three abstentions; Palestine, seventeen to two with five abstentions; Myanmar, seventeen to two with five abstentions; and Tibet, seventeen to six with two abstentions.
(143.)U.N. Press Release HR/3499, 25 Aug. 1993, at 3.
(144.)The foregoing account is based almost entirely on author's notes.
(145.)However, she claimed, there had been no discussion since then, even though the Dalai Lama had indicated that he was ready to negotiate short of independence.
(146.)NGO statement to the Sub-Commission, supra note 10, at 1--2.
(147.)Interview with leading NGO human rights expert, Geneva, 25 Aug. 1993.
(148.)Interview with Michael Van Walt, Geneva, 27 Aug. 1993.
(150.)Discussion with senior UN human rights expert, Geneva, 26 Aug. 1993.
(151.)See, e.g., Philip Alston, supra note 5, at 508; see also Alston, Revitalising United Nations Work on Human Rights and Development, 18 MELBOURNE UNIV. L. REV. 216--57 (1991).
(152.)U.N. Doc. E/CN.4/1994/L.83.
(153.)Interview with senior UN human rights expert, 30 May 1994.
(154.)Private communication from Philip Baker, London, 11 Apr. 1994.
(155.)See, e.g., editorial The China Syndrome, THE GUARDIAN, 11 Mar. 1994, at 23.
(156.)For instance, Elaine Sciolino, US Big Business Urges Renewal of China's Trade Ties, N.Y. TIMES, 14 Mar. 1994.
(157.)I am indebted to You Ji for pointing out the lasting effect this failure has had on China's intellectuals, as well as its leaders.
(158.)Elaine Sciolino, China Trip Begins on a Frosty Note for Christopher, N.Y. TIMES, 12 Mar. 1994, at A1, A4.
(159.)For example, Shi Quan, Wenhua chuantong yu renquanguan (Cultural Tradition and Human Rights) RENMIN RIBAO (PEOPLE'S DAILY), 14 Feb. 1994, at 6, which attacked the US State Department's newly issued human rights report as using human rights as "a pretext to interfere in other states' internal affairs." The non-interference argument was also used with respect to the 1994 Human Rights Commission vote, when Premier Li Peng interrupted his Work Report at the Eighth National People's Congress to acclaim the failure of the Commission vote against China. John Kohut, Rights Victory Claimed, SOUTH CHINA MORNING POST, 11 Mar. 1994, at 9; Western Anti-China Draft Rejected, BEIJING REVIEW, 21--27 Mar. 1994, at 37.
(160.)See news release on Asia Watch, Detained in China and Tibet: A Directory of Political and Religious Prisoners (New York, Feb. 1994), in REUTERS CHINA NEWS, 22 Feb. 1994.
(161.)Human Rights Watch--Asia report, The Price of Obscurity in China, in THE AUSTRALIAN, 20 May 1994, at 7.
(163.)REUTERS CHINA NEWS, no. 000453519251, 14 May 1994.
(164.)Peter Logue, Chinese Tell Evans: Butt Out, THE CANBERRA TIMES, 3 Apr. 1994, at 1; and Lena H. Sun, China Turns Screws on Dissidents, THE GUARDIAN WEEKLY, 17 Apr. 1994, at 18.
(165.)For detailed analysis of the overall effectiveness of these bodies, see Alston, supra note 5.
(166.)See KENT, supra note 17, at 217--19.
(167.)These problems all beset US-China monitoring. See, e.g., Patrick E. Tyler, Chinese Puzzle, N.Y. TIMES, 14 Mar. 1994, at A1, A3; and Tyler, Bottom Line for U.S. and China: No Kowtows on Human Rights, N.Y. TIMES, 27 Mar. 1994, at D5. For contrasting types of bilateral monitoring by Western states, see Rhoda E. Howard, Monitoring Human Rights: Problems of Consistency, 4 ETHICS AND INTERNATIONAL AFFAIRS 33 (1990); JACK DONNELLY, INTERNATIONAL HUMAN RICHTS 129--32 (1993); and JAN EGELAND, IMPOTENT SUPERPOWER--POTENT SMALL STATE: POTENTIALITIES AND LIMITATIONS OF HUMAN RIGHTS OBJECTIVES IN THE FOREIGN POLICIES OF THE UNITED STATES AND NORWAY 3, 5 (1988).
(168.)See, e.g., Robert S. Greenberger, Cacophony of Voices Drowns out Message from US to China, THE WALL STREET JOURNAL, 22 Mar. 1994, at A1, A8.
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|Date:||Feb 1, 1995|
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