The US and China on International Human Rights Instruments

China and the United States met on 30 and 31 July in the capital of Yunnan Province, Kunming, affectionately known as the city of eternal Spring, to hold the 18th US – China Human Rights Dialogue. The US press statement noted, ‘The Human Rights Dialogue provides an important opportunity to elaborate on our concerns about China’s human rights record and to encourage progress, building on engagement on this topic throughout the year.” According to Voice of America, “The U.S. State Department says the U.S. side will bring up the rule of law, freedom of religion, freedom of expression, labor rights, and the rights of ethnic minorities in China…The Chinese foreign ministry says the talks will include ‘candid and in-depth exchanges on the basis of equality and mutual respect in order to promote human rights development in both countries.'” Human Rights Watch has warned, “The US government should press the Chinese government to adopt concrete and clear benchmarks, and evaluate the progress in subsequent dialogues. Without these benchmarks, the human rights dialogue risks serving as a perfunctory diplomatic exercise, rather than a genuinely useful advocacy tool.”

The other day, coincidentally enough in a Yunnan restaurant, a friend made a comment about the United States’ status of ratification compared to China on several key international human rights instruments. International human rights instruments are key documents in international law and the promotion and protection of human rights. They are divided into two categories, declarations (which are not always legally binding) and conventions (which are legally binding under international law. In light of the present US – China human rights dialogue I felt it was relevant to highlight a few of those conventions and explore a little behind exactly how the US and China compare in terms of their respect and implementation of international human rights norms.

International Covenant on Economic, Social, and Cultural Rights (ICESCR)

United States Status: Signed 5 October 1977; NEVER RATIFIED

China Status: Signed 27 October 1997; Ratified 27 March 2001

Others Countries Failing to Ratify: Belize, Comoros, Cuba, Palau, Sao Tome and Principe, South Africa

According to Global Policy Forum “The US maintains that economic, social and cultural rights are “aspirational,” not inalienable or enforceable.” The Chinese government issued the following statement upon ratification of the treaty, “The application of Article 8.1 (a) of the Covenant to the People’s Republic of China shall be consistent with the relevant provisions of the Constitution of the People’s Republic of China, Trade Union Law of the People’s Republic of China and  Labor Law of the People’s Republic of China.” And what is Article 8.1 (a) that China is so concerned with?  “The right of everyone to form trade unions and join the trade union of his choice…” An odd reservation for a purportedly Communist nation to be concerned that the right to form unions may stand in conflict with the constitution. This is understood because it would threaten the supremacy of the All China Federation of Trade Unions, a national entity not known for siding with labor when party or elite interests are involved. More can be read about the AFCTU here.

So, what are some of the economic, social and cultural rights that the US feels are merely “aspirational,” rather than inalienable? Article 7 (a)(i) begins, “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work…” Article 8.1 (d), “The right to strike, provided that it is exercised in conformity with the laws of the particular country.” Article 9 states, “The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.” Article 12.1 notes, “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

International Covenant on Civil and Political Rights (ICCPR)

United States Status: 5 October 1977; 8 June 1992

China Status: Signed 5 October 1998; NEVER RATIFIED

Others Countries Failing to Ratify: Comoros, Cuba, Nauru, Palau, Sao Tome and Principe, St. Lucia, 

When ratifying the Covenant the United States made a number of statements clarifying its expectations and responsibilities under the treaty. Here are a few of the statements the United States felt necessary to clarify regarding its implementation of the treaty. “(2) That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age… (5) That the policy and practice of the United States are generally in compliance with and supportive of the Covenant’s provisions regarding treatment of juveniles in the criminal justice system.  Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 and paragraph 4 of article 14. The United States further reserves to these provisions with respect to States with respect to individuals who volunteer for military service prior to age 18.” The United States would also be in contravention of Article 6.5, which states, “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” We will return to the US position on the rights of children momentarily.

As for China, despite having signed the covenant in 1998 the National People’s Congress (China’s legislative body) has continued to stall the ratification process and many believe it is the conservatives at the center of power who command this resistance. A number of analysts have assumed that China may have only signed the covenant in the late 90s to precipitate its entry into the WTO. Despite the more than a decade long standoff between reformers and hardliners, both from within the party and from the weiquan (rights defense) community, almost every year a revived push for ratification is issued. With the convening of the 2013 National People’s Congress in March, the first headed by new Chinese President Xi Jinping, a group of around 100 intellectuals, activists, and former party members issued an open letter demanding the ratification and implementation of the ICCPR. The BBC reports, “We solemnly and openly propose the following as citizens of China,” the letter begins, “that the International Covenant on Civil and Political Rights (ICCPR) be ratified, in order to further promote and establish the principles of human rights and constitutionalism in China.” The list of names on the open letter includes well known human rights lawyer Pu Zhiqiang (浦志强), investigative reporter Wang Keqin (王克勤), and human rights lawyer and scholar Xu Zhiyong (许志永), who was placed under house arrest in April and formally arrested in July. Until the Chinese Communist Party decides it is in their interest to broaden the scope of political rights the ballet between civil society and conservative factions within the PRC will continue.

What are some of the rights that are so threatening to the CCP, rights that the United States claims to uphold and implement, aside from a few qualifying statements? Article 3 states, “Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity…” This would require the drastic overhaul of China’s criminal justice system, which is not known for the independence of lawyers and judges, a particular problem with the vast majority of local rights violations are committed by local officials acting with impunity. Article 8.3(a) reads, “No one shall be required to perform forced or compulsory labour.” China still operates the notorious Reeducation Through Labour system, sentencing to which is an administrative penalty decided by the police without needing a trial and can amount to upwards of four years. Perhaps of equal concern to the United States, in light of its recent War on Terror, and China is Article 9, which reads in whole,

(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. (3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. (4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Article 14.7, the double jeopardy article, reads, “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” The most famous victim of this in recent times in journalist and activist Qi Chonghuai. And then there is Article 17.1, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” We need only look at the spate of arbitrary arrests and house arrests made against activists in China to understand the government’s hesitance to be bound to such articles. Article 25 reads, a clear no no in a non democratic authoritarian regime, but what about the implications of new voter laws in North Carolina

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

Then there’s Article 27, ” In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language,” which China would have a hard time meeting the minimum standards in the Xinjiang Uyghur Autonomous Region, the Tibetan Autonomous Region, or elsewhere. One might question the degree to which the United States upholds its obligations under this requirement as well. There are many other relevant articles in the ICCPR; these have been presented as an overview.

The International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights (both entered into force in 1976 after sufficient state parties ratified them), along with the Universal Declaration of Human Rights (adopted in 1948) form the informally named International Bill of Human Rights.

Below are a number of additional conventions and treaties that comprise the overall human rights system. As with the two key treaties above, let us examine how China and the United States compare.

Convention on the Rights of the Child (CRC)

United States Status: Signed 16 February 1995; NEVER RATIFIED

China Status: Signed 29 August 1990; Ratified 2 March 1992

Others Countries Failing to Ratify: Somalia, South Sudan

How is it that the United States is the only country in the world, beside Somalia and South Sudan that has failed to ratify the convention? Global Policy Forum explains the United States’ position as a factor of, “Conservatives who favor the death penalty for minors strongly oppose the treaty.” As noted above in the ICCPR, international law strictly forbids the death penalty for minors. However, the 2005 Supreme Court case of Roper v. Simmons overturned the long standing practice among 25 US states and ruled that it was unconstitutional to impose capital punishment on minors. That the purportedly lingering mentality among hardliners that a minor offender should receive the death penalty is shocking. But, if not for the death penalty, what are some of the reasons behind the United States’ continued failure to ratify the Convention on the Rights of Children?

The United States had been active in the drafting of the convention; the Reagan administration (1981-1989) proposed the original language that is now used in seven of the 54 articles. Madeleine Albright signed the convention on February 16, 1995, representing the US as its ambassador to the United Nations. However, it was either never submitted to congress or congress rejected ratification during the three subsequent presidential administrations. While President Clinton signed the treaty he never submitted it to congress and Obama has indicated that he will submit it to congress, where it must receive 2/3 support before the president can ratify the treaty, but the Obama administration has made no mention of a timeline. A number of conservative groups in the United States have reportedly expressed their reservations claiming either that elements within the convention would contradict the US Constitution, a startling revelation, or that the United States already upholds and protects the standards enumerated within the convention and that therefore its passage would be redundant, a poor excuse. Organizations such as the Heritage Foundation challenge that ratification of the convention would amount to a loss of sovereignty, any amount thereof is inexcusable, they argue. Additional opposition comes from the perspective of parental rights, whose adherents believe that the ratification of the convention would subvert their rights to home school, to hold reservations about the content of public education (in the case of creationism versus evolution for example), or the rights of parents to discipline their children. Many of these and other concerns however are actually ungrounded as the convention does not technically threaten such issues.

Additional concern may come from an analysis of US labor laws. Agricultural labor laws for minors are horribly antiquated in the United States, argues labor rights organizations. According to a 2010 Human Rights Watch report, “Child farmworkers as young as 12 years old often work for hire for 10 or more hours a day, five to seven days a week… Some start working part-time at age 6 or 7. Children, like many adult farmworkers, typically earn far less than minimum wage, and their pay is often further cut because employers underreport hours and force them to spend their own money on tools, gloves, and drinking water that their employers should provide by law.” This appears to contravene, if at least in spirit, Article 32.1 of the convention, which reads, “States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.” Article 32.2 (a) continues that the state parties shall in particular, “(a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.” The resistance to ratification is not voiced in relation to the need to address an exploitative child labor industry but in the more ‘American value’ discourse of personal rights and sovereignty. This appears to indicate a further explanation for the failure of the United States to ratify the convention.

Many of the reservations common to the opposition are simply, I would argue, the vocalized animus held toward the United Nations system in general by a group of conservative members of the US population and congress. In any case, as has already been highlighted, the ratifying country can make qualifying statements or reservations at the time of ratification. Such specific complaints and perceptions against the convention are more accurately explained as uninformed and the masking of intransigence.

China, upon ratification issued the following reservation, “The People’s Republic of China shall fulfil its obligations provided by article 6 of the Convention under the prerequisite that the Convention accords with the provisions of article 25 concerning family planning of the Constitution of the People’s Republic of China and in conformity with the provisions of article 2 of the Law of Minor Children of the People’s Republic of China.” Article 6 of the convention reads, “1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child.” Article 25 of the Chinese Constitution states that, “The state promotes family planning so that population growth may fit the plans for economic and social development.” This is not to say that China’s only blotch on the rights of Children is its draconian One Child Policy, which is certainly a sizable blotch, but it is a strong indicator of the degree to which a State, even once it has ratified a convention, may act in contravention. A more timely example is provided by a recent report published by Human Rights Watch, which claims, “Children with disabilities face significant hurdles in accessing education in China, and a substantial number of them receive no education at all.” This would contravene Article 1 of the convention, which reads, “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” This would also be tested when applied to the access or denial of education among Uyghur, Tibetan, or Mongolian children, or the children of known human rights defenders, who are often persecuted along with their parents and denied education.

A note on disabilities, China has both signed (30 March 2007) and ratified (1 August 2008 ) the Convention on the Rights of Persons with Disabilities. The United States has signed (30 July 2009) but, along with 37 other UN member states, failed to ratify the convention. The United States Senate voted whether to ratify the Convention on the Rights of Persons with Disabilities on 4 December 2012 but failed to get enough votes, The Huffington Post reports. To achieve the two thirds majority support to ratify the bill the roll call needed 66 yes votes but received only 61; 38 voted against ratification.

Convention on Discrimination Against Women (CEDAW)

United States Status: Signed 17 July 1980; NEVER RATIFIED

China Status: Signed 17 July 1980; 4 November 1980

Others Countries Failing to Ratify: Holy See, Iran, Palau, Somalia, South Sudan, Sudan, Tonga

President Jimmy Carter signed the convention in 1980 but the United States has failed to ratify the convention. Three presidential administrations have attempted to bring the convention before Congress for ratification but have been defeated. The late Jesse Helms, republican senator from North Carolina and chairman of the Senate Foreign Relations Committee, was a long time opponent of US ratification on both CEDAW and CRC. Several powerful conservative organizations, many with claimed religious underpinnings, continue to lobby against ratification of international human rights treaties. Concerned Women for America (CWA), whose stated goal is to bring biblical principles into all levels of public policy, stated of the convention, “This so-called ‘women’s rights’ treaty was crafted by extreme feminists in the 1970s. More accurately, it is anti-woman and contradicts our Constitution.” CWA lists among its principle complaints against CEDAW the fact that it would, “negate family law and undermine traditional family values by redefining the family; force the U.S. to pay men and women the same for “work of equal value” thus going against our free-market system; ensure access to abortion services and contraception; allow same-sex marriage; and undermine the sovereignty of the U.S.” Associate Professor of Government at Dartmouth College, Lisa Baldez, an expert on the US and CEDAW writes in an op-ed for CNN that critics of CEDAW, “say it doesn’t reflect American values enough. Here’s what they are missing: The treaty takes American values of equality and women’s rights and makes them global norms.” She continues,

Opponents have a point when they note that ratifying this document has not prevented some countries from being the most egregious violators of women’s rights. When the most powerful country in the world does not support women’s rights, it gives permission for other countries to dismiss their commitment to improving the status of women. With the United States behind it, CEDAW would have even more clout than it does.

It would appear that religious principles, social conservatism, and enforced gender inequality are the principle drivers behind US congress continued failure to ratify the convention. That China has ratified the convention is no sign of its robust implementation.

China issued a reservation at the time of ratifying the convention that excludes it from recognizing the jurisdiction of an international body to investigate or mediate disputes relevant to the convention. China has proven itself as stubborn to recognize the jurisdiction of complaint mechanisms for international treaties as the United States but many women’s organizations and other human rights groups have reported serious shortcomings in China’s implementation of sexual and gender based rights and the rights of women. Many have accused the All China Women’s Federation of brutally enforcing china’s draconian one child policy, at the clear detriment of the rights of women. Furthermore, the linguistic and cultural signification of women will remain with characters like 嫁 jia (to marry / to marry off a daughter / blame etc), a combination of the characters 女 nv (woman) and 家 jia (home), it is a linguistic component of selective infanticide of female children believing them to be inferior because they will eventually leave for the family and village of the husband. China is the only country in the world with a higher suicide rate for women than for men reports the World Health Organization. The number of high level female politicians or the diminutive and misogynistic discourse used to talk about women representatives to the National People’s Congress further provides clarity on the actual social situation. Women have a far way to go before the ratification of the convention in China provides anything close to Mao’s famous adage that ‘Women hold up half the sky.’

Convention Against Torture (CAT)

United States Status: Signed 18 April 88; Ratified 21 October 1994

China Status: Signed 12 December 1986; Ratified 4 October 1988

Others Countries Failing to Ratify: Bahamas, Comoros, Gambia, Guinea-Bissau, India, Palau, Sao Tome and Principe, Sudan

Despite having both ratified the CAT China and the United States have been the documented perpetrators of acts of torture, both domestically and (more so in the case of the United States) in outside countries. The United Nations Committee Against Torture and the office of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment is tasked with monitoring and reporting on reports and complaints of torture around the world. The current Special Rapporteur on Torture is Argentinian jurist Juan Méndez. Previous Special Rapporteur (2004-2010) Manfred Nowak noted in 2008, regarding China, “that the definition of torture and the criminalization of torture in Chinese law still do not satisfy the requirements of articles 1 and 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). He also reiterates his concerns about Re-education-through-labour (RTL) camps and urges the Government to abolish the doctrine of RTL.” China’s record of torturing political prisoners is well documented by many independent human rights organizations as well as governments. Manfred Nowak also requested visitation with Bradley Manning to investigate accusations of torture. Although I recall Nowak having made a statement that the conditions of Manning’s confinement amounted to torture, I cannot find the link at this time. Juan Méndez has requested several unrestricted visits with Bradley Manning but the Obama administration has consistently denied this visitation. The litany of accusations against both governments concerning torture is of course extensive. One need only remember Abu Ghraib.

Upon ratifying CAT the Chinese reservation stated that, “The Chinese Government does not recognize the competence of the Committee against Torture as provided for in article 20 of the Convention.” The United States issued a lengthy series of reservations, available here. A number of these reservation demonstrate the United States and China’s stated objective to claim legitimacy in its promotion of domestic human rights through the symbolic act of ratification but strips the convention of its jurisdiction to investigate either country in response to claims of abuse by civil society or independent third parties. This is further supported by the fact that while both countries have ratified CAT, neither country has signed the Optional Protocol to the Convention against Torture (OCAT), which establishes a subcommittee on the Prevention of Torture (SPT) with the

[U]nrestricted access to all places of detention, their installations and facilities and to all relevant information. The SPT visits police stations, prisons (military and civilian), detention centres (e.g. pre-trial detention centres, immigration detention centres, juvenile justice establishments, etc.), mental health and social care institutions and any other places where people are or may be deprived of their liberty.

The SPT must also be granted access to have private interviews with the persons deprived of their liberty, without witnesses, and to any other person who in the SPT’s view may supply relevant information including Government officials, NPMs, representatives of national human rights institutions, non-governmental organizations, custodial staff, lawyers, doctors, etc. People who provide information to the SPT shall not be subject to sanctions or reprisals for having provided information to the SPT.

Both China and the United States prove with this resistance that narrow and politically motivated notions of sovereignty are more expedient than the actual protection against or prosecution of acts of torture. This political will is damning to the morality of either country and particularly more so to the United States which claims to be promoter and enforcer of human rights standards but this is a tired line of argument. Hiding behind a curtain of protecting sovereign interests is a transparent ploy to shield agents of the state from prosecution for acts explicitly condemned under the convention, to which both countries are bound by international law. This is the same misplaced nationalism and arrogance to an international system that explains the position of the United States and China on the Rome Statute, which created the International Criminal Court.

Rome Statute of the International Criminal Court (ICC)

United States Status: Signed 31 December 2000; UNSIGNED 6 JUNE 2002

China Status: NEVER SIGNED

Others Countries Failing to Ratify: Azerbaijan, Belarus, Bhutan, Brunei, Cuba, El Salvador, Equatorial Guinea, Ethiopia, India, Indonesia, Iraq, Kazakhstan, Kiribati, Laos, Lebanon, Libya, Malaysia, Mauritania, Federated States of Micronesia, Myanmar, Nepal, Nicaragua, North Korea, Pakistan, Palau, Papua New Guinea, Qatar, Rwanda, Saudi Arabia, Singapore, Somalia, South Sudan, Sri Lanka, Swaziland, Togo, Tonga, Turkey, Turkmenistan, Tuvalu, Vietnam

First adopted at a conference in Rome on 17 July 1998, the Rome Statute entered into force on 1 July 2002. The primary purpose of the Rome Statute is to enumerate the jurisdiction, structure, and function of the International Criminal Court. Human Rights Watch notes, “The court was created to bring justice to the victims of gross human rights violations,” which are acts of genocide, crimes against humanity, war crimes and the crime of aggression. The ICC is given jurisdiction to act in cases of abuse of these four crimes in situations when either the host country is unable or unwilling to investigate or prosecute. A major US opposition point to ratifying the Rome Statute is that it would put the US under the jurisdiction of the ICC and allow the court to investigate and open prosecution of US citizens, potentially for actions committed on US territory. One might be more concerned about why this should even be a concern, if the US is innocent of these four crimes then no concern over sovereignty would matter, as it would never come to a point of being tested. A second line of argument that is often used is that the US already upholds such principles and prosecutes such crimes on its own and therefore its ratification to any such treaty would be redundant; however, this neglects to take into consideration the symbolic gesture of the US position on other countries.

The conservative Heritage Foundation again pops up at the forefront of American opposition to international human rights instruments. The Heritage Foundation website states, “The crimes under the jurisdiction of the ICC are broadly defined and could subject individuals to penalties of up to life imprisonment for actions that never were thought punishable on the international level before.” This is an interesting statement considering the crimes (which again are genocide, crimes against humanity, war crimes and the crime of aggression) are fairly clearly enumerated (here) and to dare to claim that they are crimes that have never been thought punishable on the international level before is just false. The Heritage Foundation continues with the following specific concerns, “(1) The ICC threatens American self-government; (2) The ICC is fundamentally inconsistent with American tradition and law; (3) The ICC violates constitutional principles; (4) The ICC contradicts the founding principles of the American Republic; (5) The ICC threatens America’s ability to defend its interests through military action.” Let me repeat the fifth point, The Heritage Foundation finds fault with the ICC because it would make it possible to prosecute any “individual American, including the President, military and civilian officers and officials, enlisted personal, and even ordinary citizens” who commit acts of genocide, crimes against humanity, war crimes and / or the crime of aggression.

One might be skeptical of an organization that implicitly advocates for the impunity of individuals guilty of such actions on the sole ground that they are members of the same political nation. One could argue that if the United States is concerned with its soldiers being subjected to ‘political or frivolous’ charges of war crimes et al then it should reexamine its track record to understand why it would be primus inter pares among the advanced military forces of the world to face such accusations. To make a significant stand to prove that the United States does not engage in such activities, and demonstrate its total support of the morality of its actions, it would join with the other advanced military countries and advanced democracies and accept the legitimacy and jurisdiction of the Court to investigate and try such heinous crimes.

The majority of opposition to the Rome Statute and the ICC, from both the Heritage Foundation and others, is based on the issue of jurisdiction and sovereignty more than an actual disagreement on the morality of the crimes therein enumerated but by clinging so vehemently and obstinately to nationalistic principles the opposition is open to a number of accusations of supporting double standards and a dangerous selective moral ontology. Furthermore, it sets an international precedent and, through direct diplomatic encouragement, it promulgates these double standards and certification of exclusionary and nationalistic moral codes.

Writing on China and the ICC, Joel Wuthnow a China analyst with CNA and author of Chinese Diplomacy and the UN Security Council writes in an article for the Diplomat,

What is sometimes missing from these discussions is the reality that key states may have principled or practical reasons to oppose ICC intervention. Although this applies to Russia and the United States, China is a particular concern for several reasons: its historical reservations about international interference in states’ internal affairs;  its close economic and political ties with some states targeted by the Council for possible ICC involvement, such as Sudan, Libya under Gaddafi and Syria; the power to veto ICC referrals it holds as a permanent member of the Security Council; and the general tone of assertiveness that has colored China’s foreign policy in the last few years.

While China’s failure to ratify the ICC might have a lot to do with countering such potential problems regarding alliances down the line it is more likely that it is just part of the quite consistent message of non-intervention and the sanctity of sovereignty. It is in line with China’s intransigence to optional protocols, even of treaties it has ratifies, that permit independent investigations or provide for a complaint mechanism for civil society actors to report situations of gross abuse. Both the governments of the United States and China are vehement on these terms.

The United States and China command a tremendous percentage of the worlds attention. Despite a significant drop off since the declared endless ‘war on terror’ the United States continues to preside over vast troves of symbolic capital and soft power the world over and China skillfully positions itself in alliance with a number of the worlds unsavory regimes (North Korea, Sudan) while extending large sums of purportedly no strings attached aid to developing countries. Both nations are arguably responsible for shaping a great degree of international opinion and norms. Not only their own domestic records on implementing human rights legislation but the way they interact with the international community has an impact on shaping the development of other nation’s domestic policies and their relationships with the international community, namely the Human Rights community. For this reason, what takes place at the US – China Human Rights Dialogue is of incredible importance but in light of the two nations developments regarding the foundational documents of international human rights, we shouldn’t expect too much to come from Kunming.

About michaelcaster
Michael Caster is a human rights advocate, researcher and civil society consultant. He holds an MA in Law and Diplomacy from the Fletcher School of Law and Diplomacy at Tufts University and an MA in Conflict Studies and Human Rights from Utrecht University. He has worked in China, Thailand, Myanmar, Turkey, and Tunisia.

One Response to The US and China on International Human Rights Instruments

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