The struggle for human rights versus stability: the Chinese Communist Party and western values clash.

• Author: Douglas, Erin E.

Economic growth and human progress make their greatest strides when people are secure and free to think, speak, worship, choose their own way and reach for the stars. President Ronald Reagan (1)

1. INTRODUCTION

   The issue of human rights lies at the center of past and present political struggles throughout the world. (2) The prevailing international norms as established through international law set the standard of what the world community constitutes as human rights. However, a nation-state, as a sovereign unit, creates its definition of human rights through cultural relativism, domestic laws and ultimately through the relationship between the individuals within the nation-state and the nation-state itself. (3)

   With the rise of the Chinese Communist Party (CCP), the relationship of the individual and the state in China has been one of hostility and betrayal between both the Chinese government and its constituents. (4) The CCP has been, and is fearful of, dissent within. The Chinese people fear to question their government because of this hatred of dissent. Adding to the hostility and betrayal is a western world torn between the virtue of human rights for all and the vice of economic power and might. (5)

   This hypocrisy and conflicting passion suggest that until the western world prioritizes whether to follow its virtue or vice, China's human rights violations will not cease, but in fact, prosper. This paper will not attempt to vilify either the virtue or vice, but will examine why, in the past and present, human rights and economics in China is a battle between the individual and state with western forces intervening.

   Part I of this paper will create a working definition of human rights that includes an analysis of the universalist and cultural relativist perspective and the Chinese definition of human rights. Part II, will discuss what is of utmost concern to many in the international arena; the CCP's silencing of the opposition. (6) Through a historical examination of various intellectual dissident movements, Part II will show that the pro-active and successful stance of the Chinese government in silencing the opposition and thus disregarding any notions of human rights is a direct result of the CCP's perception that the opposition poses a viable threat to stability.

   Part III will address the problems of definition, priority, jurisdiction and enforcement of human rights in China in the context of both conventional and customary international law. Part IV will also address the impact international trade and China's economy has had on the western world's enforcement of human rights in China. Finally, Part V will provide certain recommendations to the international legal arena that will put China's predicament in an objective legal perspective according to international law norms.

2. PART I: A WORKING DEFINITION OF HUMAN RIGHTS

   1. Historical Overview of the Development of Human Rights

      Traditionally, the international legal system was a law of nations. (7) It was interested only with the rights and duties of states, not of individuals. (8) Therefore, the various domestic legal systems remained completely free to regulate the lives of their own citizens. (9)

      The American Revolution and the French Revolution of the late eighteenth century, however, declared the first generation of human rights. (10) They focused on individual, civil, and political rights that attempted to guarantee both private liberty and democratic participation. (11) Both the American Declaration of Independence (1776) (12) and the French Declaration of the Rights of Man and of the Citizen (1789) (13) articulated natural or human rights. (14)

      The second generation arose with the Industrial Revolution of the nineteenth century. (15) The focus of the Industrial Revolution shifted to social rights. (16) The Industrial Revolution created poverty and increased the size of the working class. These changes demanded economic and social rights to help overcome the adversities associated with the change. (17)

      The universalization of human rights developed during the twentieth century. (18) Post World War I Wilsonian idealism opined the notion of people's rights and universalization with the creation of the League of Nations. (19) Article 22 of the League of Nations articulated that peoples whose government failed as a consequence of war, would be put under the protectorate of advanced nations as mandatories of the League. (20) These mandatories were to guarantee freedom of conscience and religion and prohibition of such abuses as slave trade. (21) Article 23 created an elaborate system for the protection of minorities. (22) The demise of the League of Nations did not lead, however, to the demise of idealism. (23)

      Post-World War II, the establishment of the United Nations carried on the idealism. (24) The world, left with the consequences and aftermath of the atrocities of war, needed some sort of order for the future. (25) Through this desire, the United Nations set forth its Universal Declaration of Human Rights [hereinafter The Declaration]. (26)

   2. Human Rights as Defined by Western Values

      1. Human Rights as Defined by International Treaties and Covenants

         The Universal Declaration of Human Rights has been described as "a transitional instrument somewhere between a legal and moral ordering." (27) The Declaration contains thirty articles that proclaim standards of achievements for all people and all nations regarding human rights. (28) This declaration established the foundation for a universal human rights regime. Since, the promulgation of the Declaration, the UN has drafted many international covenants that aim to protect civil, political, cultural and economic rights. Amongst these are: the International Covenant on Civil and Political Rights (29); the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (30); the Convention on the Elimination of Racial Discrimination (31); Convention Against Torture and other Cruel; Inhumane or Degrading Treatment or Punishment (CAT) (32) and Convention on the Rights of the Child. (33)

      2. Western Definition of Human Rights

         Many reason this desire to promote and protect human rights on a universal standard as a Western value. (34) From a Western viewpoint, basic human rights have three correlative duties: to avoid depriving (negative rights); to protect from deprivation; and to aid the deprived (positive rights). (35) With these three duties, human rights raise questions about the essential values of society. (36) That is, the Western World places emphasis on the individual whereby the societies of the East value the community. (37) Human rights also raise questions about the relationship between the individual and the state. Based on a particular government's definition of human rights, the treatment of citizens within will differ. (38) In addition, human rights raise questions between international and domestic law. (39) Discrepancies arise between state constitutions and international covenants. (40) Moreover, discrepancies arise between the actual practice and behavior of states and the practice and behavior as defined through international covenants (41).

         Western values state that human rights apply to individuals across the board. (42) They are not earned or based upon merit. Human rights, consequently, are limitations on what a government might do to the individual and what society is obligated to do for the individual. They are the rights to be free from, but the rights to be free to, as well as the right to be. The ability to be free, to have one's own thoughts, is the most fundamental of all human rights. (43) The freedom of thought, the freedom of being free constitutes being human, being what and who one is. It is, "being this particular person as opposed to someone else." (44) This freedom is not possible in Communist China.

         Further, from a Western viewpoint, author Stanley Cohen argues that human rights information is communicated and targeted for three audiences: (1) the official circuit of perpetration and observer governments; (2) the mass media; and (3) direct appeals to the moral public. (45) When this information disseminates to the public, the perpetrators that violate human rights standards deny responsibility as part righteousness justification. (46) Part of this justification rationalizes that there are no universal human rights values and, hence, any society can act according to its own morality. (47) The other claim is that there are alternative sets of values that, under certain circumstances, take precedence over any universals. (48) Confucianism is one of these alternative sets of values that, historically, China has used to justify its human rights practice.

   3. Historical Overview of Human Rights in China

      What are human rights? They are the rights of how many people, of a majority, a minority, or of all the people? What the West calls human rights and what we call human rights are two different things, with different standards and points. Deng Xiaoping (49)

      1. Confuscian Impact

         Society in China bases its thoughts and ideas upon Confucianism. Confucianism, a major system of thought in China, developed from the teachings of Confucius and his followers. (50) Confucianism influences the attitudes, pattern of living, standards of social value of the Chinese. (51) Confucianism has served as the backbone of Chinese political theory including that of human rights. (52)

         Confucianism details four analects that deal with human rights: the paths of benevolence (ren dao); tolerance (shu dao); justice (yi dao); and government (zheng dao). (53) These Confucian thoughts articulate ideas about human dignity. (54)

         For instance, benevolence in Confucian theory is the maintenance of personal dignity and a love of mankind. (55) Benevolence depends upon the actions of individuals, not the collective whole. (56) Tolerance is the analect that includes the right of...