Why China Should Unsign the International Covenant on Civil and Political Rights.

• Author: Lewis, Margaret K.

ABSTRACT

In March 2019, the United Nations Human Rights Council finalized its periodic review of China's human rights record just as human rights in China were under intensified attack. As during prior reviews, China was criticized for its human rights practices. And, once again, China was urged to ratify the International Covenant on Civil and Political Rights (ICCPR), which China signed over twenty years ago. It is time to reevaluate this approach.

This Article argues that the international community should change tack and instead call on China to remove its signature from this foundational human rights treaty. While this would be a brash and unusual strategy, it is sound as a matter of both law and politics. The anticipated upsides of confronting China about its failure to meet even the minimal obligations as a signatory outweigh the possible downsides of scaling back from the goal of universal participation.

This Article recognizes that China's signing of the ICCPR has provided a justification for domestic actors to promote human rights protective reforms. The strength of this argument has, however, faded in recent years. A better path is to pursue a forthright approach whereby the international community rebukes the Chinese leadership's retrograde motion on civil and political rights while supporting those within China who have looked to the ICCPR for inspiration.

Table of Contents I. INTRODUCTION II. CHINA'S UNIVERSAL PERIODIC REVIEWS A. 2009 Review B. 2013 Review C. 2018 Review D. 2023 Review II. THE INTERIM OBLIGATION III. THE CASE FOR UNSIGNING A. Law 1. The Interim Obligation and the ICCPR 2. The Essential Elements and Facilitation Tests 3. The Impossible Performance Test 4. The Manifest Intent and Bad Faith Tests B. Politics IV. FROM ENERVATION TO INNERVATION V. CONCLUSION I. INTRODUCTION

In March 2019, the United Nations Human Rights Council finalized its periodic review of China's human rights record just as human rights in China were under intensified attack. (1) The review coincided with the twentieth anniversary of the People's Republic of China's (PRC or China) signing of the International Covenant on Civil and Political Rights (ICCPR), a foundational treaty that sets forth a range of protections such as freedom of speech, assembly, and religion. China not only has failed to ratify the ICCPR but is instead increasingly undermining the rights it protects. (2) This Article argues that the international community should respond by calling on China to remove its signature.

This is not a recommendation that is made lightly, but it is one whose time has come. (3) Prior to its first review before the council in 2009, China reported that the "relevant departments are carrying out necessary legislative, judiciary and administrative reforms to create the conditions for the early ratification of ICCPR." (4) Prior to its second review in 2013, China again reported that the "relevant organs] [(5)] of the National government are continuing steadily to pursue administrative and legislative reforms in preparation for ratifying the Convention." (6) Prior to its third review last fall, China once again reported that the "relevant departments of the Government are steadily continuing to advance administrative and judicial reforms in preparation for [ICCPR] ratification." (7)

These repeated claims do not fit reality. Since its 2009 review, China--in this Article being used as shorthand for the governing party-state structure (8)--has tightened suppression of civil and political rights. For example, China imprisoned until death a Nobel laureate for his peaceful expression of political views and for years arbitrarily deprived his wife of freedom of movement, without any basis even in Chinese law. (9) It criminally convicted and/or extrajudicially disappeared hundreds of lawyers and other rights defenders. (10) And it expanded the ability of the Chinese Communist Party (CCP or Party) to deprive people of liberty without judicial process. (11) The worsening climate for civil and political rights is seen most starkly in the at least one million Uighurs and members of other Muslim minority groups who have been held in so-called reeducation camps. (12)

A country's failure to fulfill its human rights commitments is not surprising. (13) And perfection is far from required; for instance, numerous countries are struggling to implement the right "to a fair and public hearing by a competent, independent and impartial tribunal established by law." (14)

Nor is it unusual to have a period between signing a treaty and becoming a full party: (15) the United States took nearly fifteen years to ratify the ICCPR (16) and has yet to ratify the International Covenant on Economic, Social and Cultural Rights, despite signing it in 1977. (17) There is debate as to a state's obligations during this interim period but, (18) at a minimum, it must refrain from acts that would defeat the object and purpose of the treaty. (19) This fundamental "good faith" (20) obligation in international law preserves the sanctity of treaties and requires that states refrain from opportunistic or bad faith behaviors. China's intolerance for civil and political rights guts the core protections in the ICCPR: the trend is retrogression and repression, not progression and protection. Yet, during the 2018 review, members of the Human Rights Council once again urged China to ratify the ICCPR. (21) This semidecadal wash-rinse-repeat exercise has proved futile.

Encouraging China to retract its signature to a major human rights treaty may seem counterproductive to the goals of improving conditions within China and of fortifying human rights norms on the international level. Nor is there a mechanism for other countries actually to remove China from the list of signatories. At best, countries could create a joint statement expressing this position, akin to the June 2019 letter by twenty-two countries to the United Nations (UN) High Commissioner for Human Rights urging China to stop the mass detentions in Xinjiang. (22)

And state practice with respect to "unsigning" is exceptionally thin. (23) The United States' 2002 announcement (24) that it did not intend to join the treaty establishing the International Criminal Court (25) stands as a rare example of a state voluntarily declaring its intention not to become a party despite having signed a treaty. (26) But China's status in the zone of mere signatory to the ICCPR makes possible a strategy that is essentially off the table after ratification; ICCPR ratification makes it exceedingly difficult, and perhaps even impossible, for a state to withdraw. (27) Seizing the interim period as an opportunity to press China to admit its growing distance from the ICCPR's norms would send pointed messages to the PRC Party-state, pro-human rights audiences within China, and the international community.

First, a call for unsigning would tell the Chinese leadership that the international community condemns the worsening conditions for civil and political rights and highlight that China's signature is illusory; whatever intentions the leadership had over the first twenty years after signing, China's signature on the ICCPR today does not appear to express a true intention to be bound by the norms therein. (28)

Second, though China's signing of the ICCPR initially provided a justification for domestic actors to promote human rights protective reforms, the hope that the Chinese leadership is listening has also become illusory. (29) Advocating unsigning would emphasize that China is not a monolithic entity. The international community should rebuke the PRC leadership's retrograde motion on human rights while supporting those within China who have looked to the ICCPR for inspiration.

Third, rebutting China's "no one-size-fits-all" (30) view of human rights would be a self-affirmation by the international community of its commitment to universal values. International law scholars have long emphasized the importance of an inclusive approach to international human rights treaties. (31) The deterioration of civil and political rights inside China combined with the PRC leadership's efforts to dilute human rights norms outside its borders gives reason, however, to rethink this position. The PRC leadership's current assault on civil and political rights means that international conceptions of these rights would be better served by China remaining outside the ICCPR rather than enfeebling them via engagement in the ICCPR's interpretive and monitoring mechanisms. There is no bar to China resigning (and ratifying) the ICCPR at a future date should circumstances pivot in a rights-protecting direction.

Part II examines China's three cycles of review before the UN Human Rights Council--2009, 2013, 2018--and how these reviews coincided with periods of cautious hope, increasing uncertainty, and alarm, respectively, regarding China's approach towards human rights. The Universal Periodic Review (UPR) process is, as the name indicates, a sweeping look at a country's human rights record. (32) This Article's focus is on China's approach to civil and political rights largely because these rights are particularly under siege as the most threatening to the Party's lock on power. (33)

Part III introduces scholarship on the requirement that states refrain from acts that would defeat the object and purpose of a treaty in the period between signing and ratification. There is no consensus as to what this so-called interim obligation entails in practice, and there is a dearth of real-world examples that might provide a guide. (34) Nonetheless, there is a general understanding among international law scholars that the requirements of the Vienna Convention on the Law of Treaties and customary law demand some level of good-faith performance. (35) It is an interim obligation, not an interim aspiration. (36)

Part IV builds on the preceding two parts to argue that...