To strengthen digital security for human rights defenders, behavior matters

Article originally appeared on 9 May 2017 as part of the Data and Human Rights discussion at Open Global Rights, and is available here.

Most conversation about digital security for human rights defenders (HRDs) tends to focus on privacy and data protection. This is necessary, but what good is a strong passphrase or Virtual Private Network (VPN) when you are at risk of enforced disappearance and torture by the police? In such situations, even the most seasoned HRD is likely to give up access. A strong digital security strategy adds to protection from physical threats, but for many HRDs operating in hostile environments such threats are sadly inescapable and protection strategies need to be more practical.

The typical emphasis on privacy and data protection means that conventional digital security thinking often stresses technical advice for communication security to prevent detection and HRD detention.

The typical emphasis on privacy and data protection means that conventional digital security thinking often stresses technical advice for communication security to prevent detection and HRD detention. But technical tools only extend so far after an HRD is detained or subjected to torture by police intent on gaining access. I know very tech savvy HRDs who have quickly given over their passphrases at the threat of torture. No one can judge them. In such horrific, and sadly common, scenarios, a more holistic approach to digital security is needed.

Through ongoing support for local initiatives that take a practical approach to digital security, the hope is that more secure behavior will develop in tandem with technology for the authentic holistic security of HRDs in hostile environments.


The United Nations Special Rapporteur on the situation of human rights defenders, Michel Forst, addressed these multiple insecurities in a February 2016 report, calling for HRDs to foster a culture of ‘holistic security’ that interlinks physical security with digital security and psychosocial well-being. The notion of ‘holistic security’ has been gaining traction in HRD protection frameworks since before 2016 but often in otherwise compartmentalized ways.

On the ground, however, this often means transplanting digital security tools from one context into another alongside other physical or psychosocial strategies, and thinking less holistically about the physical and psychosocial realities of digital security.

This problem is crucial for HRDs operating within authoritarian regimes and shrinking civic spaces, where absent the rule of law there are no such legal protections as habeas corpus, the right to counsel, or freedom from torture. And, as Zara Rahman recently articulated, “technologies are sometimes mentioned or adopted not because they are the most strategic or necessarily useful tools for the job,” but due to uninformed pressure.

Take the most common technical advice offered for enhancing digital security: encryption. Most digital security literature recommends, among others, encryption tools like Protonmail, Signal Messenger, or Vera Crypt. Such tools are necessary but insufficient. Yes, encryption done right ensures that only the intended parties have access, protecting data from third-party monitoring, except the most sophisticated and time-intensive intrusion efforts. But this only offers short-term security in authoritarian regimes.

For several years, I have been working with rights defenders in China, and elsewhere, to develop practical approaches to various protection challenges, including digital security. The project I’m part of is based on the active participation of local feedback groups among the target beneficiaries, and is ongoing with support from Reporters Without Borders and others. Initial conclusions of this project arguably offer transferrable value for HRDs in other repressive environments.

After considerable reflection, my collaborators and I have found that more attention to behavior is critical in providing digital security for HRDs in hostile environments. This means addressing how HRDs relate to and act with the digital security tools they choose to use, how HRDs understand local realities, and how HRDs are supported (or not) based on their specific contexts and threats. This can be called localizing a behavioral approach to digital security.

Here are a few examples for securing behavior from our work so far.

For practical purposes, relying on secure communication tools is important under authoritarianism but, once in detention the concern is less about preventing access than limiting what is accessible. HRDs should adopt dedicated emails for work and maintain a Zero Inbox Policy—that is, always deleting content, either manually or through automatic destruction such as offered in Protonmail, or Signal and Telegram for chat-based communication. This should be standard HRD communication behavior.

Another, often-overlooked behavioral issue, is how HRDs delete sensitive information. Encrypting sensitive data from intrusion is meaningless if it is left easily accessible after deletion through file recovery programs. Several HRDs I spoke with recounted that during police interrogations they were questioned based on whole or partially recovered documents they had thought they had deleted. In short, the way we usually ‘delete’ something does not necessarily delete anything.

Ultimately, any approach to digital security must combine increasing security with a realistic understanding of what behavior is practical. For example, realistically, most people aren’t going to remember the login information to sign into every account they hold, including for shopping or friendly chatting. They would be happy for some passphrases or account details to be saved, and would quickly abandon a procedure that requires otherwise. As such, one of the most practical behavioral approaches is maintaining a dual browser strategy. HRDs should keep one browser, say Firefox, for all rights defense work. Here they use the relevant browser extensions and conventional best practices, with automatic erasure upon exit. On the other hand, they should keep a separate personal browser for entertainment, say Chrome or Opera, in which, for example, non-sensitive passwords can be saved for easy use.

The approach should also be local. This means language localization, as far too many technical tools remain available only with English language interfaces, but above all it means contextualization and regionalization. This is in line with a recent piece by Danna Ingleton, on the importance of recognizing agency and centralizing the experiences of HRDs in their own protection.

In this sense, developing practical digital security strategy requires extending a greater degree of agency to the HRDs who are most affected and who will most benefit. One way to achieve this is for donors to support the creation of local feedback groups, which has been the foundation of the project I have been involved with, whether to inform the creation of new versions of existing digital security guidebooks, identify the most practical behavior for how technology is used, or devise bottom up advise for institutional support.

Through ongoing support for local initiatives that take a practical approach to digital security, the hope is that more secure behavior will develop in tandem with technology for the authentic holistic security of HRDs in hostile environments.

 

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Donald Trump’s proposal to slash UN funding: a threat to international peace and security

Originally published on 24 March 2017 at Open Democracy. Here.

On April first the United States assumes the rotating monthly presidency of the United Nations Security Council amid widespread alarm over talk from US President Donald Trump that his government is considering drastically reducing its financial contributions and involvement in the UN. This could pose a serious blow to the global body tasked with international peace and security.

In mid March, the Trump administration released its “America First” budget proposal. The full budget will not be released until May and will still need to be approved by congress. While the budget proposal has met with bipartisan criticism, longstanding mostly-Republican hostility toward the United Nations and tough talk from the administration gives rise for serious concern. In nearly Orwellian vocabulary, the Trump budget calls for the pursuit of ‘peace through strength,’ while attacking the very institutions working to preserve peace.

In nearly Orwellian vocabulary, the Trump budget calls for the pursuit of ‘peace through strength,’ while attacking the very institutions working to preserve peace. It calls, inter alia, for the elimination of funding for the United States Institute of Peace and a 28 percent reduction in funding to the Department of State. This despite a letter from over 120 retired military leaders addressing the security imperative of diplomacy and development. The budget also calls for unspecified reductions to the United Nations and a cap on US contributions, to not exceed 25 percent of the total peacekeeping budget.

Taken as a reflection of the administration’s priorities, this budget proposal might as well be the pyre upon which peace is sacrificed to strength.

At present, the United States contributes around $2.5 billion, nearly 29 percent of the total $7.87 billion peacekeeping budget. The other top five contributing countries are China (10.29 percent), Japan (9.68 percent), Germany (6.39 percent), and France (6.31 percent).

The UN regular budget for 2016-2017 is $5.4 billion, of which the United States pays 22 percent, around $1.2 billion.

Voluntary contributions cover the humanitarian, development, and human rights work of the United Nations. This includes the Office of the High Commissioner for Human Rights and the High Commissioner for Refugees. These are vital functions for the preservation of peace and security and yet a draft executive order leaked in January 2017 hinted at a 40 percent cut in US voluntary contributions.

The “America First” budget proposal is vague in exact reductions to the UN. However, in what Colum Lynch at Foreign Policy describes as an unprecedented retreat from international operations, State Department officials have reportedly been instructed to slash up to 60 percent of all assessed and voluntary contributions, including a $1 billion reduction in peacekeeping contributions.

Meanwhile, in a clear signal of priorities, the Trump administration has called for a $52 billion increase in defense spending, the United States already spending nearly as much on defense as the next 14 countries combined.

Explain that

The Trump administration is attempting to legitimize its unprecedented retreat from the UN with claims that its present contributions are disproportionate, a hollow argument. As Rosa Freedman, professor of law and conflict at Redding University, argues, “given that the US makes up more than 24 percent of the world’s total GDP, it’s actually contributing less than it should.”

Member State contributions, established by the UN Charter, are apportioned by the General Assembly based on a formula taking into account such things as the size of economy and per capita income. The five permanent members of the Security Council (US, UK, France, Russia, and China) are furthermore required to pay additional shares for peacekeeping given their responsibility for maintaining international peace and security. However, as pointed out by Anjali Dayal at Political Violence at a Glance, “an existing Congressional cap already sets the US’s annual contribution to the peacekeeping budget below the assessed contribution the US is required to make as a UN member.”

Budget cuts on the magnitude threatened by the United States will have the biggest impact on voluntary contributions, particularly important for supporting humanitarian and development efforts. But what is also at stake is the impact on needed reforms already under way, including the mainstreaming of human security, which will require leadership and diplomatic support alongside financing.

An imperfect system

The UN is not perfect. Perhaps two of the most damning examples of recent UN failure are negligence by Nepali peacekeepers in Haiti in 2010 – over 700,000 people were infected and more than 8,500 died from cholera – and a pattern of sexual exploitation and abuse by peacekeepers, especially in the Central African Republic since 2013.

In large part, the pattern of sexual exploitation and abuse by peacekeeping forces across missions has been prolonged by the past hesitation from the UN to name and shame countries whose forces are guilty of such crimes. This, of course, has been a product of political expediency. But this is slowly changing, as the UN is increasingly likely to publically name countries whose troops perpetrate such atrocities and to send guilty contingent commanders or whole contingents home. It is moving to encourage troop-contributing countries to conduct trials in domestic courts, although this remains a challenge, and to refuse future peacekeepers from those countries that fail to uphold human rights obligations. Scholars are also contributing great work to tackling such peacekeeping failures, for example Sabrina Karim and Kyle Beardsley propose a comprehensive gender-sensitive approach to reform in Equal Opportunity Peacekeeping.

There are real concerns but they require reform and leadership by powerful Member States, not abandonment.

Improving the UN now is especially needed in the face of what some UN officials are describing as the worst humanitarian crisis since the end of World War II. The threats of terrorism, the destabilizing effects of climate change, poverty, and gross discrimination that trigger conflict and drive mass displacement, are all serious tests to the preservation of peace and security. But they require more than engorging military budgets.

To tackle such challenges, the new Secretary General, Antonio Guterres, has pledged comprehensive reforms of UN strategy to build and sustain peace. Guterres has also pledged management reform, including accountability, the protection of UN whistleblowers, and gender parity at higher-level positions.

In February 2017, Guterres announced the creation of an internal review board that will move forward with reforms to UN peace and security strategy. The result of this review is expected in June and will produce recommendations that may have financial implications, the implementation of which could be severely limited by the withdrawal of US funds and other support.

The new US Ambassador to the UN, Nikki Haley, has issued similar calls for reform, especially over corruption and accountability for sexual abuse. But her government’s hinted reduction or ending of support for “international organizations whose missions do not substantially advance US foreign policy interests” risks holding the global body hostage to the nationalist interests of “America First” that prioritize American military might over multilateralism and human security.

Rather than approaching peace through strength, as the Trump budget shortsightedly proposes to do, the new administrations’ approach to peace and security must be peace though prevention.

Peace through prevention

In April 2016, the General Assembly and Security Council adopted a joint resolution establishing the concept of ‘sustaining peace.’ The resolution is a reflection of four reports, including the High-Level Independent Panel on Peace Operations and the report on the implementation of resolution 1325 women, peace, and security. Arguably, in drawing together a variety of concepts the year before both the new Secretary General and US President were to assume office, the resolution served as a placeholder for a conversation about the future of the UN in peace and security.

Seeking to operationalize prevention, the resolution calls for “activities aimed at preventing the outbreak, escalation, continuation and recurrence of conflict, addressing root causes… and emphasizing that sustaining peace is a shared task and responsibility…[that] should flow through all three pillars of the United Nations.” The three pillars are human rights, peace and security, and development. They are interconnected and interdependent.

It emphasizes the importance of a comprehensive approach through the prevention of conflict and its root causes, poverty eradication, social and sustainable development, inclusive dialogue, rule of law, transitional justice, gender equality, and the protection of human rights.

Such comprehensive measures by definition require more than the strict reliance on military might and narrow national interest-based approach to international peace and security as put forward by the US Government.

Speaking at the annual high-level panel discussion on human rights mainstreaming in February 2017, Oscar Fernandez-Taranco, assistant secretary general for peacebuilding support, highlighted the need for inclusive cooperation between Member States.

The problem with the US fetish for a bloated defense budget, threatening to retreat from international diplomacy, or constrict funds to the UN is what that would mean for cooperation toward more comprehensive peacebuilding approaches. It could well lead to the opposite, limiting peace operations to stabilization and a minimal approach to peace and security that disregards governance, human rights, or development.

The other big factor, says Ian Johnstone, professor of international law at the Fletcher School of Law and Diplomacy, is countering violent extremism (CVE). If this becomes the principle motivator to establishing peace operations, we are likely to only see significant political support for new missions where there is the threat or perceived threat of terrorism. CVE needs to occur but, again, narrow military solutions and unilateralism are ultimately self-defeating.

The threat of violent extremism presents a dilemma for traditional peace operations, because CVE is generally outside of established mandate parameters. But, as Johnstone writes at Peace Operations Review, drawing from the 2015 Plan of Action to Prevent Violent Extremism, addressing the challenges of CVE within peacebuilding efforts calls for adaptability and creativity. This is precisely where a peace through prevention approach has value, to not only address insecurity but also its root causes through poverty reduction, inclusive dialogue, and the mainstreaming of gender and human rights concerns. Unfortunately xenophobic rhetoric from the Trump administration signals in the opposite direction.

Ultimately, the impact of the Trump administration on the ability of the UN to develop a more comprehensive and preventative approach to peace and security will be based as much on signaling as on financial constraints.

Looking forward

President Trump’s “America First” budget proposal, in name and stated financial commitments, reads as an indictment of multilateralism. The alarming reduction of budgetary contributions to the United Nations will certainly be amended in congressional review, although general hostility toward the UN among the Republican controlled congress indicates some reduction in US contributions is almost certain. However, whatever the ultimate figure it is less likely to derail reform or have as devastating an impact as the signaling of a US no longer interested in the UN.

Cooperation and support from powerful Member States is vital for the UN to serve its function of preserving international peace and security, promoting development, and protecting human rights. This requires diplomacy. Of course, this is not to completely discount the significance of being a membership-based body reliant on dues to hire personnel and support aforementioned peacebuilding efforts.

With the United States assuming the April presidency of the Security Council, notably before the White House issues its formal budget proposal in May, it presents an opportunity for the US to reevaluate its priorities and leadership role in line with the trend of peace through prevention. How the US uses its Security Council presidency, what thematic meetings it convenes in New York for example, will offer further clarity on administration priorities and may provide chances for the other members of the Security Council to negotiate those priorities. Arguably, it also provides non-Security Council government and non-governmental representatives the opportunity to lobby the United States regarding peace through prevention.

A US withdrawal now stands to upset the reforms in theory and practice currently underway and to potentially derail the future of international peace and security.

Campaigning for a Woman UN Secretary-General: A Conversation With Shazia Rafi

I spoke with Shazia Rafi of the The Campaign to Elect a Woman UN Secretary-General, about the selection of a woman Secretary-General to take over for Ban Ki Moon. Below is the interview, originally published at the Fletcher Forum of World Affairs on 16 May.

Before joining The Campaign Rafi served as Secretary-General of Parliamentarians for Global Action, a nonprofit organization of elected legislators in over 140 countries that works to promote peace, democracy, the rule of law, human rights, and gender equality. Rafi is a 1983 graduate of The Fletcher School.

Michael Caster: The previous process for selecting a Secretary-General came under criticism for a lack of transparency in how the Security Council made a decision in private and forwarded a single recommendation to the General Assembly for approval. How transparent do you expect the new process to be? Will it still defer to the same power players even if it’s done more in the open?

RAFI: There is a reality in the world now: everybody is constantly on social media, everyone is a known category, there are no hidden players anymore and everything else is taking place in a sort of fishbowl.

So when it comes to the UN Secretary-General, it has been the only one out of every inter-governmental institution where there haven’t been open candidates campaigning. The change to a more open process was long overdue. The push has come from everybody. Even the P5 have become increasingly uncomfortable with their role as the ones producing the candidates.

The player who has played quite a role in making this transparent has been the president of the General Assembly, former speaker of the Danish parliament [Mogens Lykketoft]. He wanted to give the General Assembly more power under something called the Revitalization of the General Assembly, a sort of rebalance of the UN power system.

He took the reins in both hands and insisted on holding hearings in April 2016 in which the candidates were forced to send in their nominations with their written vision statements and had to come to a meeting with members of the General Assembly.

I don’t know how transparent it really is. While Member States could ask questions from the floor, civil society managed was forced to put questions prerecorded by people they had preselected and it wasn’t clear half the time who these people were. I wasn’t too pleased with that because those of us with civil society are capable of asking from the floor as well. Also, each male candidate had two questions from civil society; each female candidate had three. This difference in treatment didn’t make any sense.

The decision will still be made by the Security Council and they haven’t set themselves a hard deadline. There’s a soft deadline, that by July they hope to open all dossiers that have been received, which means that those who want to be Secretary-General of the UN should have indicated their interest by July.

MC: What happens in September?

RAFI: The process itself is going to take a few months. Their deliberations will start in July, which is when Japan is president of the Security Council.

Then it goes back to the same process as has been previously used. The Security Council will do their internal straw polls as always. The P5 have different color coded-cards from the E10 [elected members of the Security Council] to indicate “encourage,” “discourage,” and “no opinion.”

The winning candidate has to have at least no “discourage” votes from the P5 meaning that they have not vetoed the final candidate. They need four to five of the rest because it still has to be a majority of the Council that agrees with the candidate and sends that name to the General Assembly. Even though there’s a push to try and get two names, so far the Council has said they will send one name.

New Zealand has the presidency of the Security Council in September and then Russia in October. Russians want to see the decision done in October.

MC: With Ban Ki-moon’s selection, when it was Asia’s turn in the regional rotation, most of the negotiations took place between the United States and China. Now with Eastern Europe under review, is it likely to boil down to negotiations between the U.S. and Russia?

RAFI: The region that is up this time is the Western European and Others Group (WEOG), but within that Eastern Europe has never had a Secretary-General. They have made it very clear that this time it’s their turn, which is why you see so many Eastern Europeans among the candidates.

Yes, this time it will be between the U.S. and Russia. I would not read too much into [the current Russia-U.S. relationship in terms of how much it will affect the process]. Countries are capable of having different compartments for their dialogues with each other. So they may not be on good terms related to some part of the world in which they are clashing right now but there are other things they can talk to each other about. These negotiations are a lot about, “If I agree with you on X, what am I going to get on Y?”

MC: How much resistance would you expect from Russia if the regional rotation system were abandoned?

RAFI: I don’t know what the final position of the Russians will be but so far it is very clear that they are still pushing for it to continue to be an Eastern European. The problem with the Eastern Europe group is that unlike the African Union Group or the Asian Group they are a region that is both within the European Union and not, which confuses the matter for the Russians. They may cherry-pick within the Eastern European region which countries they are willing to go for and which countries they are not. I think there’s a lot of fine negotiation that will take place on that basis.

MC: What about the so-called Group of Four (G4)? How have Brazil, India, Germany, and Japan weighed in on the process as part of Security Council reform and other structural issues in the UN?

RAFI: If you listen to the hearings, the question did come from the G4 to every candidate as to whether the candidates were willing to take up Security Council reform, which has kind of been a dead elephant. Candidates were very cagey, all of them, in terms of answering this one because obviously none of the P5 want to give up their power. This is unlikely to go very far.

MC: Your organization has held events and done a lot of advocacy. What have been some of the most valuable or results-oriented activities so far?

RAFI: I think the most important thing that we’ve achieved is that when we started out last year in the spring people were still referring to the next Secretary-General as he and then they started saying he or she and now they are saying she or he. So there is quite an expectation that, all things being equal, the Council will go for a woman. And we intend to continue to push that.

MC: Women in positions of power, either in the private sector or in political roles, are generally burdened with gendered double standards in which the same qualities that are seen as positive attributes in their male colleagues earn them negative perceptions and scorn. How do you see this playing out with a female head of the United Nations?

RAFI: These negative perceptions are the hurdles that we have. If we are strong, we are seen as, pardon me, bitches. If we are not, we are seen as too weak. I think this race is one where the women who are currently going for the job are already at the head of the agencies, foreign ministries, or whatever. They’ve already crossed certain parts of these burdens where their mettle has been tested. The issue here is going to be much more for Member States as to whether they can cross that mental hurdle when finally there are two candidates at the end that meet all criteria. Can they bring themselves to say this time they will weigh in favor of the woman? Because in an institution that’s never had a woman in the job you need that mindset.

It doesn’t mean the woman is less qualified. It means you have to cross that hurdle in an affirmative action mindset as an institution. And that requires a cross-regional coalition. Now there is a coalition of 56 countries, lead by Columbia, that is a General Assembly group of friends in favor of a woman Secretary-General. Some of them are from the Council but none of the P5 are members because they don’t want to commit one way or another yet.

If it turns out that the final short list is a woman and a man, then it will require that gentle push, and our organization intends to push.

MC: What do you think about the influence of having a woman as the Secretary-General on global gender inequality and women’s rights?

RAFI: The UN is the global institution of peace and security and the bulk of the victims of peace and security are women and children. Women are not a minority. They are almost 51 percent of the world’s population. If you adjust for the fact that China and India take steps to mess with the natural gender balance by aborting female fetuses, the majority of the world’s population is women. They are not reflected in economics. They are not reflected in the positions of power in the same way. But having this job in the hands of a woman I think would be a very strong message to the rest of the world.

MC: There are quite a few countries that have demonstrated their lack of willingness to address discrimination against women. Do you anticipate pushback from countries with bad records on women’s rights?

RAFI: No, I don’t think this will be reflected. For example, the United States is one country that has not ratified Convention on the Elimination of All Forms of Discrimination Against Women. It’s the only Organization for Economic Cooperation and Development country that hasn’t. I don’t think that will affect the U.S. vote. The two are not connected. This is part of their diplomacy, not part of what they do in their own countries.

MC: In terms of the escalating challenges that will confront the UN in the future, what would you like to see as the priority for the new Secretary-General?

RAFI: I want to see preventive peace making as the focus of the UN. That is an area which has been neglected in the past. I want to see the mediation role of the UN expanded because that is where we should have been putting our efforts and our funds and our best people in all of these crises that we are now scrambling to deal with.

MC: Do you have any advice for people at Fletcher who want to get involved at any level of this campaign?

RAFI: Fletcher is a leading think tank on a global basis. It’s also one that has enormous connections within the U.S. administration, State Department, and President’s office. There are Fletcher students in almost all the countries that are on the Security Council. I used the Fletcher directory when I was working in every country around the world. It led me to the right people. I think you have within both your current student body and within the alumni people who can be very influential on their government’s decisions on this. I would particularly say the ones from the countries on the Security Council should push in whatever interaction they have for there to be transparency in the process, even within the Security Council, and I would like them to push for there to be a woman.

Taiwan: Can Tsai Ing-Wen Change the Politics of Death?

This article was originally published at the Diplomat on February 10, 2016.

Following Tsai Ing-wen’s electoral victory last month, KMT lawmakers have been challenging Ms. Ing-wen, who will be inaugurated as Taiwan’s first female president on 20 May, and her Democratic Peoples Party on several issues. Among them, Ms. Ing-wen has been demanded to reveal her stance on the abolition of the death penalty. While capital punishment remains relatively popular in Taiwan, Lin Hsinyi, Executive Director of the Taiwan Alliance to End the Death Penalty, has pointed out that none of the KMT lawmakers who attacked the DPP over the abolition of the death penalty have been reelected. For her, “this congress is more friendly to human rights.” What will this mean for the death penalty in Taiwan?

In early June 2015 six death row inmates were executed at four locations around Taiwan. Their executions attracted some positive domestic attention but raised numerous concerns internationally. Taiwan has come under criticism several times by international human rights organizations for failing to adhere to procedural guidelines and the apparent use of capital punishment for political purposes. Such accusations could amount to violations under international law but this could change with Tsai Ing-wen and the DPP, which has tended to support abolition.

The Politics of Death

The Taiwan Alliance to End the Death Penalty (TAEDP) has observed that, “all the executions since 2010, when the four-year moratorium was lifted, took place when the government approval rate was low.”

Taiwan had a moratorium on capital punishment from 2006 to 2010.

In March 2010, then Minister of Justice Wang Ching-feng voiced support for the abolition of capital punishment and stated she would refuse to sign any execution warrants. This fueled a pro-death penalty social movement lead by entertainer Pai Ping-ping whose daughter had been murdered in 1997 and lead to Wang’s resignation. Tseng Yung-fu assumed the role of Minister of Justice and reinstated the death penalty. In April, negotiations surrounding a trade agreement between China and Taiwan caused high public disaproval. On 30 April 2010 the first executions since 2006 took place.

The Ministry of Justice consistently denies allegations of impropriety but has refused to provide records of its meetings on death row inmates or the criteria for deciding the timing of an execution.

There have been executions, timed around episodes of low government approval, every year since the moratorium was lifted. The executions in June are emblematic.

In March 2015 four subway commuters were killed in Taipei and in May an 8-year-old girl was killed at her school. Public outcry demanded the death penalty for the attackers. Abolitionist politicians and rights campaigners were harassed and threatened. In early June, then opposition party chairperson, Tsai Ing-wen drew considerable domestic media attention for a high profile trip to the United States, at the expense of the already unpopular KMT. Amid public outrage over the heinous murders and growing popularity for the opposition party, the timing of the 2015 executions is suspect. There were also several legal irregularities.

The initial list of those to be executed included Chiou Ho-shun, who had been sentenced in 1989 following four months of secret detention and reports of being tortured into confession. Amnesty International has repeated called for his release.

Three of the men who were executed, Huang Chu-wang, Wang, and Cheng Chin-wen, had filed special appeals on the day of their executions. This could reflect either a cursory or non-existent review. There has never been a successful case of a death row inmate filing a special appeal or commutation.

Lawyers for the three inmates were not notified of the rejection of appeal until after the executions. More concerning, two of the men executed in June, Wang Hsiu-fang and Wang Chun-chin, had no legal representation at their final trial before the Supreme Court.

Taiwan’s Criminal Procedure Code does not guarantee legal defense for final appeals. In 2012 a draft was proposed that would change this in cases involving a minimum punishment of three years but it has not yet become law. Many current death row inmates did not have lawyers at their final trials.

In 2012, the final appeal retrial in one death row case found the three defendants not guilty of the 1991 murder for which they had spent more than 20 years in prison.

This raises concern over the right to a fair trial, which includes the right to legal defense and appeal. If political calculations have been behind the timing of executions since 2010, it could constitute an arbitrary imposition of the death penalty, which would amount to a violation of the right to life.

International law does not explicitly ban capital punishment but places strict procedural guidelines on those countries that have not abolished the death penalty.

Taiwan and International Law

In 2009, Taiwan announced the ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Taiwan is not a State Party to the United Nations but effective ratification was accomplished through the Implementation Act, establishing that all domestic law align with the Covenants.

Article 6 of the ICCPR guarantees the right to life and protection from arbitrary loss of life. It prohibits the death penalty when it may constitute a violation of other rights, most notably the prohibition against torture.

Preventing the arbitrary deprivation of life requires that any decision to impose the death penalty must be narrowly circumscribed by clear and transparent principles in line with the Covenant.

This requires strict adherence to Article 14’s right to a fair trial. The Human Rights Committee has noted that, “the imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life.”

Anyone sentenced to death is entitled to seek pardon. This is enshrined in ICCPR Article 6(4). Number 8 of the 1984 Safeguards guaranteeing protection of the rights of those facing the death penalty adds that no execution shall be carried out pending an appeal, pardon, or commutation. The right to seek pardon carries the expectation that in some circumstances a pardon may be granted, otherwise the right is relatively empty.

Although not legally binding, UN General Assembly resolution 65/206 calls upon all states to “make available relevant information with regard to their use of the death penalty, which can contribute to possible informed and transparent national debates.” This is important for ensuring a fair trial and strict adherence to procedural rules at every stage of the process, from the initial trial to final appeal and scheduling of the execution.

Tsai Ing-wen’s Challenge

While advocates for the abolition of the death penalty have felt Tsai Ing-wen hasn’t been explicit enough in her position, KMT lawmakers have challenged her for supporting abolition. Such with Alex Tsai, for example, who was quite vocal on pro-death penalty issues during his campaign but was ultimately not reelected. Such failure for pro-death penalty lawmakers points to a possible decrease of importance for maintaining the death penalty for voters. This presents the best opening for a return to a moratorium and steps toward abolition without sacrificing political capital for the DPP.

Tsai Ing-wen is likely to face conflicting pressure moving forward, says Hsinyi of TAEDP. The new president may face public pressure to carry out an execution from those in favor of continuing the death penalty.

On the other hand, there is international pressure. In 2013, Taiwan received a delegation of independent experts to review its implementation of the ICCPR and ICESCR. The second review will take place in early 2017 and the death penalty is likely to be a high priority. If Tsai Ing-wen wants to demonstrate her commitment to human rights she will need to consider Taiwan’s implementation of the two Covenants.

Who Tsai Ing-wen appoints as the Minister of Justice is among the first key indicators. Lawyer Gu Lixiong, known for his support for abolition, was assumed my many to be a likely appointee but his election into the Legislature rules him out.

In 2009, abolition minded Justice Minister Wang Ching-feng created a working group on the death penalty, which included NGOs, lawyers, and academics. Although the working group was dismantled shortly after her resignation, Tsai Ing-wen has been advised to reestablish such a working group, which could also support public education and participate in a national dialogue on abolishing the death penalty.

Even if abolitionist minded lawmakers are able to float a bill, there’s too little understanding and support for the passage of any such law, which is where the importance of such a working group can be seen.

Moving Forward

Until a more thorough investigation into the use and potential political abuse of the death penalty, Taiwanese human rights groups say Tsai Ing-wen should announce an immediate moratorium. She should promise to more closely implement the ICCPR and encourage the Legislative Yuan to establish a National Human Rights Commission in line with the Paris Principles. Although in December the Executive Yuan granted a Freedom of Information Request filed by TAEPD last August requesting the Ministry of Justice to reveal its decision making process on signing execution orders, the system remains far from transparent. How Tsai Ing-wen responds to these issues leading up to and following her inauguration in May will matter.

In China: Rightful Resistance and the UN Human Rights Council

This article was originally published under the headline Internationalizing rights-based resistance in China: the UN Human Rights Council and the citizen at openDemocracy.net on 15 November 2013. But in light of today, UN Human Rights Day, it seems appropriate to share again.

On the morning of 22 October, special envoy Wu Hailong led Beijing’s delegation in Geneva as China began its once every four year Universal Periodic Review (UPR) under the UN Human Rights Council (HRC). On 12 November the UN General Assembly voted to fill 14 vacancies on the Human Rights Council and China was elected to a third three-year term on the council. The country served two consecutive terms from 2006 to 2012 but was ineligible to run again until this year. After Jordan announced the withdrawal of its candidacy, the four vacant seats for the Asia Pacific region left Saudi Arabia, Vietnam, The Maldives, and China uncontested. But many analysts have remarked with frustration that even before Jordan’s surprising withdrawal, China’s bid had little chance of defeat due in large part to its permanent status on the Security Council – despite strong objections from rights groups. Considering the egregious record of these four countries, their entry to the rights body could mark an atavistic turn for the council.

Leading up to the Universal Periodic Review and China’s UN Human Rights Council election, one source of testimony has been conspicuously absent from China’s official reporting. Despite efforts by certain NGOs and international organizations, and shallow consultation by the Chinese government, input and participation by Chinese civil society in these important mechanisms for monitoring and upholding their country’s human rights obligations has been withheld. The Chinese government has acted to block civil society participation and engaged in reprisals against civil resistance geared to these international human rights mechanisms. It appears that when Wu Hailong’s delegation announced that, “The Chinese are in the best position to know the situation of human rights in China,” he wasn’t referring to the hundreds of notable Chinese citizens and groups who have been learning to frame their dissent in the language of international human rights as well as those who have been directly campaigning for broader civil participation in the drafting and international reporting on China’s human rights.

In the months leading up to the late July deadline for China to submit its official report to the HRC and the review itself on 22 October, Chinese activists organized a series of actions in multiple locations around the country culminating in a sit-in at the Ministry of Foreign Affairs (MFA) in Beijing beginning on 18 June. The organizers, who chose an area around the East Gate of the Ministry building because of its proximity to the Human Rights Division, had planned to maintain the demonstration until 22 October.

The organizers, among them Cao Shunli, claimed that the principal grievances behind the sit-in were the ongoing refusals by the ministry to respond to a series of open information disclosure requests, eventually leading the ministry to claim that the UPR process was a matter of state security. At the high point, the sit-in attracted around 200 participants, mostly women. Cao Shunli remarked to Chinese Human Rights Defenders that, “We just want to have all the participants in the sit-in to have a dialogue with officials, to know how the country’s human rights report is produced and who should be part of the process.”

On 1 July, the first of three police raids dispersed the demonstrators. Around 9 a.m., hundreds of officers descended on the gathering and rounded them up in two groups. Activists from Beijing were taken away in one vehicle, while those from outside of Beijing were removed to separate locations in four different police vehicles. After 12 hours of interrogation, with some reports of physical abuse, almost all of the activists were released. Many of them returned to the ministry to resume the sit-in. The police would clear the sit-in two more times, on 22 August and on 3 October, holding activists separately by region and subjecting them to exhausting questioning.

Similarly, seizing the spotlight of the UPR – a common tactic among Chinese activists, to capitalize on sensitive dates and anniversaries – many have campaigned against China’s inclusion in the Human Rights Council. In Hangzhou, dissident writer Chen Shuqing and fellow organizers Lu Gengsong and Gao Haibin circulated an open letter denouncing China’s entry to the human rights body. The petition received hundreds of signatures from activists in over ten provinces. The organizers of this campaign were later detained on suspicion of ‘inciting to subvert state power.’ Similar campaigns took place in other parts of the country and some overseas organizations claim to have gathered over 10,000 signatures from Chinese both inside and outside of the country. International Chinese activists also staged actions in Geneva on the opening day of the Review.

During the UPR, Human Rights in China announced, that the Chinese government had continued to detain and question individual activists who had persisted in civil resistance pegged to China’s international human rights obligations, which prompted several Special Rapporteurs to specifically criticize China’s crackdown on peaceful assembly related to the UPR. The day before, on 21 October, Guo Feixiong, an outspoken rights defender from Guangzhou, was formally placed under criminal detention in reprisal for organizing a petition in March calling for the ratification of the International Covenant on Civil and Political Rights.

The ratification of this core instrument was a major issue during China’s first review in 2009. At the time of his arrest, Peng Lanlan, a Tujia minority and human rights defender from Hunan, had already been under criminal detention for a year under charges of ‘obstructing official business.’ Reportedly tortured in police custody, Peng Lanlan was the first activist to be arrested for pushing for civil society participation in the UPR and challenging the country’s entry to the Human Rights Council. She was targeted after several years of activism. In addition to relying on open petitions such as Guo Feixiong, mentioned above, Peng Lanlan utilized China’s 2008 Freedom of Information Act, also commonly relied upon by Cao Shunli and others.

On 14 September Cao Shunli was taken into police custody at the Beijing International Airport. Meanwhile, at about the same time, over two thousand kilometers to the South, fellow MFA sit-in organizer Chen Jianfeng was apprehended by airport security in Guangzhou. The two women had been on their way to Geneva to attend a training program on the UPR and other international human rights mechanisms. Although Chen Jianfeng was eventually released after intimidating questioning, Cao Shunli remained disappeared even after the UPR had begun. Activists involved in demonstrations related to the UPR told multiple sources that during interrogations police were forceful in questioning related to Cao Shunli, apparently working to contrive charges against her. Front Line Defenders has noted that state tactics of repression are increasingly relying on the manipulated prosecutions of activists.

Like Peng Lanlan, both Chen Jianfeng and Cao Shunli had been engaged in campaigning for transparency in UN reporting and civil society participation in China’s domestic and international human rights since before the first review in 2009. In addition to collective action and open information requests, the women had previously gone so far as to sue relevant ministries over transparency issues. Unlike the majority of her fellow demonstrators, Cao, who exhibited a sophisticated understanding of international human rights, had filed a report with the HRC under the name of the Rights Campaign, based out of Jiangsu Province. Her submission, which called attention to the persecution of civil society demands for participation in human rights plans, was included in the official UPR stakeholder analysis, a fact that has very likely contributed to maximizing her reprisals by the state, which understandably seemed less concerned with acts of collective action that generate limited attention than those generating more official condemnation.

Government reprisals against activists campaigning for broader civil society participation in China’s human rights implementation and reporting demonstrate that the Chinese government is at least somewhat concerned by the possible content of independent reviews of its internal human rights. That Chinese activists are gradually strengthening the framing of domestic grievances with the vocabulary of international human rights marks a departure from locality-specific episodes of contention. Although issue and locality-specific activism and rights defense remains the norm, activists such as Guo Feixiong and Cao Shunli are gradually turning to international norms and seeking training by international human rights experts, when unimpeded by the authorities, in addition to contained tactics like sit-ins and petitions.

Although a number of actors in civil resistance, such as at the MFA sit-in, still participate to draw attention to individual grievances or merely to express general disgust with the government, increasing exposure to concepts of international rights will have an impact on the development of their resistance in the future.

It exhibits an innovation in the framing and substance of civil resistance in China that challenges the often repeated claims of the Chinese government, when their human rights record is criticized, that universal values are incommensurate with Chinese values. On the contrary, it could be that the more Chinese activists become aware of universal rights the more they will include them in the framing of domestic civil resistance to counter attempts by the government to manipulate the discourse from within the Human Rights Council.

Fundamental Rights

The following list of fundamental human rights is taken from Jack Donnelly‘s book International Human Rights2007 p. 7. This compilation of fundamental rights is based on the key articles and substance of the three documents that make up what has become known as the International Bill of Human Rights. Namely, these are the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). While the UDHR is not exclusively a legal document, many law scholars, activists, and practitioners have argued that it has, through practice and general acceptance, entered into customary international law. Meanwhile, the two International Covenants are international legal documents. They were both adopted by the United Nation’s General Assembly on 16 December 1966. The ICESCR achieved enough ratifications and entered into force on 3 January 1976 and the ICCPR on 23 March 1976. Since the ratification of these two treaties a number of additional international human rights instruments that greatly expand on the rights here enumerated have entered into force.

1976 also inaugurated the Human Rights Committee, charged with reviewing state implementation of the ICCPR and hearing complaints and the Committee on Economic, Social and Cultural Rights, charged with the same task for the ICESCR. As noted in an earlier post, a number of states parties to both conventions have either put forth reservations stripping these monitoring bodies of jurisdiction to specific countries or failed to ratify accompanying optional protocols that allow for independent complaint mechanisms. Aside from these monitoring bodies, known as Treaty bodies because their existence is tied to specific human rights treaties, the United Nations Human Rights Council is the principal body charged with monitoring human rights among the 193 member states of the United Nations. The Human Rights Council shall be composed of 47 member countries, chosen with set distribution from certain regions around the world. It has come under significant criticism from a number of sources for bias or hypocrisy. For example, the Philippines is a current member despite censure by the Committee to Protect Journalists that the Philippines is the second most dangerous place for press freedom advocates and journalists after Iraq and the fact that China has served, and is up for election in November.

In light of such contradictions and concerns amid declarations of humanitarian and international human rights conditions as a pretext for the Responsibility to Protect (R2P), for example, a deeper understanding of the specific human rights guaranteed by international law is of paramount necessity. If the international order, composed of states most often acting in pursuit of their own interests, is to be taken seriously, far greater promotion and protection of human rights is needed. For regimes such as the United States in their support of R2P or China in their support for non-interference, both countries eliciting respect for international law, to be taken seriously their own domestic and international records have a convenient litmus by which to measure actual commitment against the rhetoric of political or economic expediency.

Donnelly succinctly outlines the following principle human rights by which we may measure state’s commitment to international law and fundamental human rights (UDHR=D; ICESCR=E; ICCPR=C):

Equality of rights without discrimination (D1, D2, E2, E3, C2, C3)
Life (D3,D6)
Liberty and security of person (D3, C9)
Protection against slavery (D4, C8)
Protection against torture and cruel and inhuman punishment (D5, C7)
Recognition as a person before the law (D6, C16)
Equal protection of the law (D7, C14, C26)
Access to legal remedies for rights violations (D8, C16)
Protection against arbitrary arrest or detention (D9, C9)
Hearing before an independent and impartial judiciary (D10, C14)
Presumption of innocence (D11, C14)
Protection against ex post facto laws (D11, C15)
Protection of privacy, family, and home (D12, C17)
Freedom of movement and residence (D13, C12)
Seek asylum from persecution (D14)
Nationality (D15)
Marry and found a family (D16, E10, C23)
Own property (D17)
Freedom of thought, conscience, and religion (D18, C18)
Freedom of opinion, expression, and the press (D19, C19)
Freedom of assembly and association (D20, C21, C22)
Political participation (D21, C25)
Social security (D22, E9)
Work, under favorable conditions (D23, E6, E7)
Free trade unions (D23, E8, C22)
Rest and leisure (D24, E7)
Food, clothing, and housing (D25, E12)
Health care and social services (D25, E12)
Special protection for children (D25, E10, C24)
Education (D26, E13, E14)
Participation in cultural life (D27, E15)
A social and international order needed to realize rights (D28)
Self-determination (E1, C1)
Humane treatment when detained or imprisoned (C10)
Protection against debtor’s prison (C11)
Protection against arbitrary expulsion of aliens (C13)
Protection against advocacy of racial or religious hatred (C20)
Protection of minority culture (C27)

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.