The CCHRC, jointly with the Central South University Human Rights Center, the National High-Level Think Tank Wuhan University Institute of International Law, has organised the International Seminar on International Human Rights Mechanisms from a Cross-cultural Perspective in Changsha, China on December 8, 2019. The seminar was attended by appr. 70 participants from all continents. The papers presented at the seminar were grouped under four main topics:
Global Human Rights Governance from a Cross cultural Perspective
Building a Global Community of Shared Future and Global Human Rights Governance
Developing Countries and International Human Rights Mechanisms
Western Countries’ Human Rights Diplomacy Trend and International Human Rights Mechanisms
Reform of International Human Rights Mechanisms from a Cross cultural Perspective
A salient feature of the CCHRC delegation to this seminar was the high number of young scholars, for several of whom this was their first visit to China.
During the conference attention was paid to the question how international human rights can be used to prevent wrongful convictions and to overturn them. Minister Grapperhaus stressed that preventing and overturning wrongful convictions is part of the right to a fair trial, as guaranteed by Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights. The minister emphasised that the criminal justice system is being run by people, which means that human error is inevitable. Therefore, innocence projects are an important part of providing justice. Some of the speakers called for the recognition of a ‘right to innocence’ at the international human rights level.
The conference was attended by 120 participants from all over the world. Among them were many lawyers and academics who are involved in innocence projects aimed at overturning wrongful convictions. Those included Peter Neufeld and Barry Scheck, who set up the very first Innocence Project in 1992 at Cardozo Law School in the US. The floor was also given to some of those whose convictions have been overturned. Two of them, Sunny Jacobs and Peter Pringle, were exonerated only a few days before they were supposed to be executed.
Li Bin and Yolanda Chu, two lawyers working at the Dong Fang Law Firm in Beijing, were the guests of honour. Dong Fang is the most important and the oldest public interest law firm in China, which defends the rights of those who have been wrongfully convicted. Dong Fang Law Firm is a partner of the Cross Cultural Human Rights Centre. Li Bin and Yolanda Chu discussed some successful attempts to rectify miscarriages of justice.
Dr Jasper van Kempen of the Law Faculty delivered a presentation on the activities of the Gerede Twijfel (Reasonable Doubt) project which researches potential miscarriages of justice. Prof. Tom Zwart and Dr Congrui Qiao of the centre reflected on measures taken recently in China to strengthen the rule of law and to prevent miscarriages of justice.
On 7th November, 2019, the Cross Cultural Human Rights Centre invited Dr. Bin Li and Ms. Yolanda Chu to give a presentation on the topic of law practicing in China. Both speakers are attorneys at the Dongfang Law Firm in Beijing. Professor G.J. Alexander Knoops added his response from the perspective of European Legal System. Professor Tom Zwart and other Dutch-based scholars attended the meeting.
Mr. Li kicked off his speech by a brief introduction about criminal cases’ new features in China. Firstly, the standards for approving the arrest have become strict. Such move attempts to reduce the risk of miscarriage of justice from the very beginning, protecting the right to liberty. And the acquittal rate has kept a decreasing trend. On the other hand, along with the economic development and the change of criminal policies, the authorities have taken a tough stance against certain crimes. This includes, organised crimes, pollution crimes, and financial crimes.
Then three cases were selected to elaborate some challenges lawyers encountered in practice. One concerns a case of contract killings, in which six suspects were involved. The first defendant, a real estate developer, initiated the murder mission, which was subsequently assigned to another defendant until the last one finally dropped the mission. The last suspect made a phone call to the target, attempting to make a deal with him, and this was how the plot was found out. However, due to some illegalities when collecting evidence by the police, the court excluded the testimony of suspects and an important evidence, the cell phone. Without the communication records and content, the relationship between six defendants was difficult to be identified, and the court therefore acquitted them. Not until the second appeal made by the prosecutors did the court finally admit the cell phone as evidence, and found the six defendants guilty.
In criminal cases, it is unusual that the court refuses resolutely the admission of evidence on the basis of the illegalities. Instead, the common practice is rather more like this: If the defence lawyer argues about exclusion of illegal evidence, the prosecutors will submit a statement from the investigators, stating that the evidence in question was acquired in accordance with the law. As a result, the court is usually in favour of the prosecutors, based on the reason that the defendant fails to prove his argument. However, in the instance case, the court somehow changed the usual practice, and excluded a critical evidence which could determine the result of final conviction. As the victim’s lawyer, Mr. Li held that the due process should not be abused to criminalise the innocent, nor let the criminals slip away. The exclusion of illegal evidence demands further clear rules for implementation, in order to prevent rent seeking of the judiciary.
The second case is related to the loan fraud, which triggered both criminal and civil lawsuits at the same time. A major problem the case showed is which lawsuit shall get the priority. The court is accustomed to dealing with criminal crimes before the civil disputes. However, in the instance case, even the “victim”, the bank, preferred the case to be trialled as a civil one, because it believed this was a better way to get the money back.
Currently, China has not had regulations to define the criminal-civil overlapping cases, nor the principles to deal with such cases. As the defendant lawyer of the case, Mr. Li argued that when facing such cases, the criminal crimes did not necessarily prevail over the civil disputes. In certain circumstances, the choice should be made on the basis of such considerations: which would be a better protection of litigant’s interests, and which could solve the disputes in a more justice and effective way.
When it comes to the third case, it invokes the question of defining crimes and illegal acts. The case concerns a company’s insurance defrauding by using false materials. Mr. Li represented the accused company, and made his arguments based on two points. First, the company found out its agent’s making up materials and reported it immediately to the insurance company. Second, because of the company’s report, the accused did not get the money based on the false claim. However, the prosecutors used the illegal sanctions issued by the China Banking and Insurance Regulatory Commission as the evidence to support the charge of insurance fraud crime.
In the instance case, because of the overlaps between the crimes and illegal acts, it is evitable to take reference from those illegal acts of the accused, and thus make impacts on the judicial judgement. However, the defence lawyers shall not give up on this. In spite of the overlaps, the authorities’ decisions on the illegal sanctions do not necessarily determine whether the acts in question are crimes. Bearing this in mind, when facing such kind of cases, the lawyers should analyse the situation objectively and in a detail way. When resorting to some flexibility and creativity, it may find some new defence points.
Mr. Knoops made comparisons with cases overlapping criminal and civil fields in the Netherlands. Such cases usually are tackled in two ways. One option is the victim may add his or her compensation claim to the criminal proceedings, and the court will make the judgment of the conviction as well as the compensation. The other option is similar to the case mentioned by Mr. Li, that it would become a choice between civil or criminal lawsuit. Furthermore, Mr. Knoops elaborated the exclusionary rule and its implementation in Europe.
Mr. Zwart added his comments on the terrorism cases in the Netherlands. The Dutch government also faces problems of balancing its counter-terrorism strategies with human rights protections. Mr. Zwart shared the experience of his participating in several cases related to alleged terrorism here.
In addition to making comparations of the law practicing between China and Europe, the audience showed their interest in the Chinese criminal justice system, especially about how it actually works, as well as its on-going reform.
The Cross-cultural Human Rights Centre (hereafter, “the Centre”) is committed to bringing together and developing researchers from multiple academic disciplines to study the sources, scopes and contents, and mechanisms for safeguarding human rights and fundamental freedoms in various cultures. QIAO, Congrui, a post-doc with the Centre, has initiated a China-focused panel at the sixth annual conference of the World Interdisciplinary Network for Institutional Research that took place at the Lund University in Sweden from 19 to 21 September 2019.
The conference panel was a collaborative effort with JING, Chao and WANG, Chenyu, two Ph.D. candidates at the Law School of Utrecht University, that sought to make sense of rather under-explored topics concerning law and governance transitions in modern and contemporary China. The three researchers presented their papers to an attentive international audience on 21 September, which were titled, respectively: “Dispute over the Status of Tibet underInternational Law – From Sovereignty to Suzerainty” (by Chenyu), “Controlling the Government in China: Principles and Practices” (by Congrui), and “Impact of China’s National Security Law upon Human Rights” (by Chao).
In specific, Chenyu shared his major findings that on the basis of sovereignty theories available to his study, he has focused on (in)divisibility as the key component to approach sovereignty, compared the similarity and difference in how (in)divisibility was dealt with under the European and Asian sovereignty and suzerainty systems, and in these lights, explained why Tibet was a vassal State under the suzerainty of China in the late nineteenth and early twentieth centuries.
Congrui’s topic was about how to control government, i.e. controlling the exercise of government powers, incontemporary China where the practice of holding government actions accountable to the law has been emerging since the 1990s. She delved into three principles: transparency, impartiality and proportionality of government decision making and implementation, and explained how these principles had been applied by adjudicative bodies in resolving disputes over government actions. She also identified new challenges to those principles arising from the implementation of the Social Credit System.
Chao’s paper adopted the comparative and human rights approaches to understanding China’s national security framework. He analysed the contents of the National Security Law that served as a leading legislation to build thenational security legal system in China, and compared them with administrative and criminal legislations relevant to the national security issue. Thereafter, he sumamrised the powers granted to and measures taken by China’s security authorities, and assessed inherent challenges therein to rights protection based on the international human rights standards.
The conference, consisting of around 170 scholars from many disciplines including anthropology, economics, law, history, philosophy and sociology, is a renowned platform for researchers sharing a common concern – how to understand the nature, function, evolution, and impact of institutions significant to humankind. This year’s theme,”Institutions for Inclusive Societies: Global & Comparative Perspective”, was a timely response to the rise of new growth poles and the emergence of new institutional dynamics that have been challenging the old divide between the developed and developing world.
A Chinese delegation consisting of five senior judges has expressed their eagerness to learn how European courts tackled internal and external pressure, inter alia, organisational, enforcement and political challenges, and to that end, met Utrecht-based law scholars to discuss about judicial challenges and reforms on 3 June 2019 in Utrecht. The meeting wss co-organised by the Cross Cultural Human Rights Centre.
Mr. PhilipLangbroek, Professor of Justice Administration and Organisation, shared his recent study on the Interplay between Court Administration, Performance Accounting and Judges’ Work. He introduced to the delegation that budgeting and accounting procedures are part of democratic governance. Yet, they need to be scrutinised in the proportion of judicial independence and impartiality. He then explained how detailed the accounting of the court’s performance is and should be, and how that affects the court’s functioning and judges’ work in the Netherlands, Switzerland and Germany.
Mr. Tom Zwart, Professor of Cross-cultural Law, spoke about Judicial Strategies to Secure Administrative Authorities’ Compliance with Court Decision. He analysed that in a rule of law system, administrative authorities are supposed to abide by court decisions. However, court judgements cannot be enforced without the goodwill of the administrative authorities concerned. He outlined judicial strategies developed in several jurisdictions for ensuring administrative authorities’ compliance, and discussed how they may be useful to China’s administrative courts.
Mr. Jing Chao, a PhD candidate at Utrecht Law School, presented his work on Balancing National Security and Rights Protection: Cases in Europe. He explained that under the European Convention on Human Rights, states can invoke national security considerations to reduce rights protection. He then introduced how the European Court of Human Rights interprets the three-layer test of rights reduction and restriction in the context of national security, and explained what implications may be relevant to China.
Head of the court delegation, Mr. Gong Fuwen, Vice President of High People’s Court of Shaanxi Province, responded to the three discussants and detailed similar challenges faced by the Chinese courts, particularly the delayed court enforcement, heavy workload of judges in handling the increasing financial cases, and challenged judicial authority in administrative cases. Thereafter, the delegates answered questions about the education and training of judicial staff in China, and the application of international trade dispute resolutions in China.
Rectify Human Rights Violations in China: Revisiting the Naming and Shaming Approach
A public debate on effective approaches to rectifying human rights violations in China took place on 6 June 2019 at Vrije University Amsterdam. The event was organised by the Cross Cultural Human Rights Centre.
Two leading figures in the field, Mr. Eduard Nazarsky, Director of the Amnesty International Dutch Office, and Mr. Tom Zwart, Professor of Human Rights and Director of the Cross Cultural Human Rights Centre, offered their differing views on a number of important topics including how to identify the nature of China’s counter-terrorism measures and how to prevent and rectify human rights violations therein.
In the context of the highly disputed situation in Xinjiang, home to the majority of the Chinese ethnic group Uyghur that embraces Islam as their predominant religion, Mr. Nazarsky maintained that the mistreatment of the Uyghur people is a brutal human rights violation. Provided that the fate of estimated up to one million people is unknown and most of the detainees’ families have been living in fear, “they need the help from outside the country,” says Mr. Nazarsky.
Mr. Zwart argued that the situation in Xinjiang should be made sense of as a common challenge faced by many governments: balancing the State’s measures for fighting terrorism and respecting human rights. He added that “government surveillance over the Muslim communities [for monitoring terrorist suspects] exists in our society as well. To cope with that challenge, we should see religion as a solution, not a problem.”
In answering the audience question about his overlooking local remedies such as China’s appeal and reconsideration procedure, administrative litigation and petition, Mr. Nazarsky posited that Amnesty International does not see these mechanisms as meaningful and effective, as they are unable to address the violation of Uyghur’s rights including that to their own language, to privacy and to due process.
Mr. Zwart questioned whether the approach adopted by Mr. Nazarsky’s organisation is working in China. He gave an example that his Centre, after meeting public security officials in China in 2018, is seeking to propose to the Chinese government a community-led mechanism for combating terrorism—“we are trying to identify effective community-led measures for resolving the terrorism problem while not undermining rights protection in Muslim communities, such as the applicability of the practice where Muslim mothers are engaged to guide their radicalised children [away from radical actions].”
In addition to debating counter-terrorism measures in Muslim communities, the debaters actively engaged with the audience, shared their personal experiences and long-term observation as regards how to conduct human rights dialogues with China’s government authorities and officials, and responded to some general questions on how to ensure China’s sustained engagements with the international human rights bodies, and how can academics and international organisations make a meaningful contribution thereto.
The annual gathering of European and Chinese scholars and others with a genuine interest in the cultural embeddedness of the implementation of human rights took place in Vienna this year, June 19 – 22.
Sub-themes for the Seminar are:
Universality and Particularity of Human Rights;
Human Rights Significance of the Community with a Shared Future for Human Beings;
History and Evolution of Human Rights Values;
Human Rights Practice in China since the Founding of the People’s Republic of China and Its Global Significance.
Participating in this event granted an opportunity for the CCHRC delegation to share the ideas on human rights with their counterparts from Europe and China. The team consisted of 16 members from the Netherlands, Greece, Hungary, Italy and Czech Republic, who have put human rights diversity and cooperation in their research focus.
Before the official seminar, under the topic of Opportunities for China-Europe Cooperation in the Area of Human Rights within the Changing International Order, we held a meeting with delegates from China Society for Human Rights to discuss if and how Europe and China could make a further step towards cooperation in this area. CCHRC’s director, Professor Tom Zwart, indicated that, with the America’s retreating from the international human rights fields, such cooperation is desirable and possible between the two parties. This picture is actually being more clear considering the increasing political influence of Central and South Europe nations among the EU. These countries share a similar eager to promote certain economic and social rights with China. The delegates from both sides agreed on the importance of human rights cooperation, and proposed to start from the topics with less existing divergences, such as the terrorist threat, as well as some new areas like Big Data and AI.
The CCHRC delegation had a breakfast meeting on the next morning to know further about each other, and to carry out an exploration of the consensus reached by the last day’s meeting. The members all agreed to assist in bringing the cooperation on human rights between EU and China respectively from their own academic channels.
The official seminar was held in the Conference Hall of the Austrian Ministry of Justice, on 21 June. The theme was Comparison of Human Rights Values between the East and the West. The CCHRC members presented their speeches on various topics ranging from the universalism of human rights, the principle of good governance, to freedom of belief, migrants and refugee issues, and the ideological Jihad of liberalism. Among other topics, the universality and particularity of human rights attracted much attention. Some Chinese researchers concluded several global problems as the common challenges, including the terrorism, development, economic globalisation, and hegemony of superpower. In spite of different approaches to dealing with such challenges taken by EU and China, they do share the same purpose, which should serve as the basis of their cooperation. As to some new challenges posed by the development of the information technology, it was recognised that both sides can start building trust in these fields that had not had many conflicts yet.
The three-day meetings contributes to the understanding on the diversities and identities in the human rights discourse between Europe and China. Bearing in mind of this, it is necessary and pragmatic to make a further step on human rights cooperation.
On invitation from the China Society for Human Rights Studies and China Foundation for Human Rights Development, seven researchers, affiliated with the Cross Cultural Human Rights Centre at the Vrije University Amsterdam, attended the Beijing Human Rights Forum themed “Poverty Elimination : Seeking Common Development to Build a Community of Shared Future for Humankind” on 18 and 19 September in China.
In his plenary speech, Professor Tom Zwart analysed the nature of targeted policy alleviation in relation to the concept of ‘putting people first’, and discussed the implications of the US leaving the UN Human Rights Council for rethinking the Europe-China human rights diplomacy. Professor Wim Jansen, Professor Serge Kamga, Dr. Qiao Congrui, Mr. Jing Chao and Ms. Vivian Aiyedogbon also presented their findings and offered their inputs at the conference.
The annual Europe-China Seminar on Human Rights was held in Bruges this year, on June 28. This year’s theme is Diversity of Civilization and Human Rights Protection. The seminar was organised by experts and scholars from the field of human rights in China and Europe and focused on the human rights theory and practice in the pluralistic world, differences in the concept of human rights in East and West, human rights exchanges and dialogues under the diversity of civilization, human rights consensus in search of diversified civilizations, diversity of civilizations, and the Universal Declaration of Human Rights.
The CCHRC participated with a large delegation, as always led by Tom Zwart, who, another classic, delivered a speech during the opening session.
A lead theme of this year’s meeting was the dialogue between China and the EU. Human Rights as the concept of basic rights of human beings is so closely connected with people’s world outlook, that there must me numerous concepts of Human Rights. A number of European delegates gave a detailed exposé of the differences, even showing that the differences are increasing rather than decreasing. Harmonizing the points of view within the complex bureaucracy of the EU is not an easy endeavour.
Some Chinese delegates contended that China offers a strong alternative from its rich philosophical tradition and more than before actively seeks engagement with the rest of the world. The Chinese government has recently incorporated it in its foreign policy including the language in which that policy is promoted. They expressed hope that the EU would to be more open for the possibly that it can learn from China.
This confidence was balanced by other Chinese delegates who pointed out that this strong culture also struggles with new developments. For example, the introduction of a new concept like Personality Rights is posing quite a challenge for the Chinese legal system. It seems that the thinking on Human Rights in both regions is in an equal state of flux.
To bridge the cultural differences, a group of delegates proposes a number of methodologies.A strong one is not looking for common elements, but for differences and make those differences more explicit. Such difference can be revealed using questionnaires asking respondents how they would (re)act in various situations.
As has become a tradition in the China-EU dialogues, the participants were not seeking outcomes, but enjoyed the continuous open dialogue and the richness of the challenging statements and proposals made during the various presentations. In that respect this recurrent activity perfectly suits the principles of the CCHRC.
Julie Fraser defended her PhD at Utrecht University on 31 May, 2018. Her research is exemplary for the philosophy of the CCHRC
This year we celebrate the 70th anniversary of the Universal Declaration of Human Rights (UDHR). Despite this momentum, human rights continue to be violated in all states around the world, revealing the gap between law and practice. The challenge of implementation – of making legal norms a lived reality – is now most pressing. How to address this challenge was the focus of Julie’s PhD research completed earlier this year. This research focused on criticisms of state-centricity in international human rights law, as well as its tendency to take a legalistic approach to implementation. Identifying the shortcomings of state-centric legalism, this research proposed involving informal social institutions the domestic implementation of human rights due to their cultural embeddedness and ability to guide human behaviour.
Cultural embeddedness is important as a contributing factor to the poor implementation and violation of rights is their ongoing contestation. Scholars have long connected human rights’ lack of cultural legitimacy with their violation. This relates to the longstanding cultural and postcolonial critiques of human rights and their perceived Western bias, which are as old as the UDHR itself. Numerous scholars have addressed these critiques over time, with some mapping out ways to reconcile human rights with diverse cultures. Scholars have advocated culturally sensitive approaches to human rights that include local cultural norms and actors – social institutions – in programs for effective implementation. Such approaches promote reliance upon non-legal measures of implementation, and upon the dynamism of culture and the agency of those within cultural communities. The purpose of such approaches is not only to promote the effective implementation of human rights, but also to demonstrate due respect to the broad cultural diversity around the world. On this basis, culturally sensitive approaches to human rights are argued to be both pragmatic as well as principled. On this basis, this dissertation examined in detail the role of social institutions in the domestic implementation of international human rights law.
The first part of this task involved analysing the applicable international legal framework. As a principle of international law, the human rights treaties grant States parties broad discretion in implementation, creating obligations of result and typically not conduct. This preoccupation with the law has given rise to a critique of legalism in human rights, emphasising the limitations of the law and that other disciplines provide important insights to human rights in context.
Another aspect of legalism is that it necessarily focuses on the State and diminishes the role of other non-State actors (NSAs) in implementation. These non-State norms and actors (social institutions) can be crucial in effective human rights implementation. Given the implementation gaps, violation of rights around the world, and the limitations of legislation and the State to fully protect rights, Julie assessed that further research was needed into the role of other measures and actors.
Therefore, this dissertation includes a multi-disciplinary case study examining the role of social institutions in implementing human rights in context. The study analyses the role of Islamic law and institutions in implementing women’s right to family planning in Indonesia. This is significant as often NSAs – and cultural/religious actors in particular – are portrayed as obstacles to human rights enjoyment, and not as assets in their protection. However, as seen in the Indonesian example, they can be essential to human rights’ domestic implementation. For instance, as international human rights law is inherently top-down, it is necessarily external/foreign to the local communities to which it applies. The perception of human rights as foreign (in substance and/or form) reduces their likelihood of being respected in practice, especially where rights conflict with local cultural norms. The Indonesian example demonstrated how locally embedded and legitimate social institutions can bridge this gap and present human rights as compatible with and supported by cultural norms. In this case, the work of Islamic actors complemented that of State authorities, with Muslim women using their agency to shape religious norms and practices in line with the right to family planning.
This research showed that Islamic law and institutions are central to reproductive health in Indonesia and are too empirically important to be disregarded. Despite this, they are virtually absent in the UN treaty bodies’ Concluding Observations to Indonesia, which continue to focus on the State and on legislation. Given that the treaties all recognise other measures of implementation and the involvement of other actors, the treaty bodies should adjust their approach without having to change their structure or mandate – just their practice. Therefore, the thesis advocate further consideration by the UN treaty bodies of rights implementation beyond the possibilities offered by formal State institutions and to include also social institutions. This is done on a practical basis, to secure better effectiveness of implementation measures, and also a normative one, to better respect States’ cultural diversity. As such, the thesis advocates culturally sensitive approaches to human rights implementation and to the involvement of social institutions therein. On this basis, this research relates to wider themes in human rights, such as the need for new/better narratives to connect rights meaningful to local communities all around the world, as well as the shift away from State-centricity toward actors and norms below and beyond the State.
(This post is slightly edited version of a blog Julie posted earlier; you can find other publications by Juylie on the Publications page of this site)