Chinese Law, International Law and Relations and Human Rights

So to condense the history of the above as it concerns modern Chinese history. Under the Qing dynasty the law was quite basic but serviceable and this law was basically continued by the first republican government and the Guomindang.

On arriving at power the CCP basically dismissed all of that law as a ‘tool of the ruling class’ and therefore as invalid and proposed to begin from scratch. Before the party could promulgate any law (and proposed laws weren’t prepared before they came to government) the early years of the PRC were effectively lawless as a result. The first two laws promulgated were the 1951 Marriage Law and the 1952 Land Reform Law and that was basically it. There was still no more general law beyond some nebulous concepts never clearly promulgated (except that what Mao said ultimately went). So obviously there was no possibility of a rule of law.

With the CR, even the law such as it had developed up until it began was swept aside by it.

Deng’s accession finally saw some systematic attention to this apparent deficiency. This was held to be (and was) vital to encouraging foreign relations and investment within China. A Criminal Code was enacted in 1980, various closed cases were re-opened, legal powers were formalised and centralised, more international involvement occurred and there was more local public education concerning the law. Finally in 1999 the ‘rule of law’ was formally explicitly enshrined in the Chinese law. Even then the reality was something different in practice.

The Chinese law is now in seven parts: the Constitution, fundamental laws, laws and administrative rules and regulations, other national regulations, provincial rules and regulations and local rules and regulations.

The Constitution is formally the product of the National Congress and the Congress also enacts and modifies fundamental laws. Regular laws may be enacted and amended by the Standing Committee of the Congress and administrative rules and regulations may be enacted and revised by the State Council. The other national regulations can be made by ministries or committees of the State Council, local rules and regulations are made by the National People’s Congress or its Provinces Standing Committee and provincial rules and regulations can be made by the People’s Governments of the Provinces themselves.

The law continues to have many grey areas (and guanxi relations (‘connections’ – if necessary fuelled by bribes of various kinds) continue to have the potential to override the law as ‘favours’ are done and repaid. In fact this kind of corruption is rampant especially at the local level). The definition of what used to be called the crime of counter revolution and now going by another name remains murky.

Harsh punishments are traditional in Chinese legal systems, Mao’s security system is not completely dismantled and Soviet models for the punishment of counter revolution in particular from the 1930s were also adopted and those factors all continue to have influence on the criminal law today. The Maoist prison system and the idea of ‘reform through labour’ also continue to influence the current penal set-up.

In the absence of effective legal remedies or opportunities to vote in an opposition in these circumstances, then, what remains is protest, boycotts and media publicity (both local and foreign). Courts are not independent either and effective lawyers have also been in short supply and so these other forms of shining a harsh light on corruption or unfairness are really the only true protections for the rule of law.

So China naturally in these circumstances has a rather bad human rights record and one of the major aspects of this is the large number of executions. The 1999 Observer Human Rights Record Index gave China’s as the 9^th worst record mainly due to the volume of executions. This is despite China having signed the 1986 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In 1990 the Deputy Chief Prosecutor admitted to 2,900 cases of perversion of justice or confession obtained through torture.

The massacre of 1989 is called an ‘incident’. China has signed further human rights agreements and also given further undertakings.

The earliest international human rights agreement China signed or at least voted for was a UN one on non-discrimination among other things. Although it was voted for by the Guomindang government in 1948 it has never been repudiated by the PRC government in any formal way. The declaration states that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (UN Universal Declaration of Human Rights)

The CCP still discusses human rights but now with the overlay of the Asian Values debate. The stress is on the collective right to speedy economic development over ‘individualistic’ freedoms and rights. The CCP also continues to remind others of the state of China’s and other states’ own rights of national sovereignty as it opposes the development of new international ‘responsibility to protect’ doctrines. This was first asserted internationally as an issue of international mutual respect and non-interference by Zhou at the Bandung Conference of Non Aligned Nations of 1955. If pressed by a government like Australia’s concerning its internal human rights record, however, China will happily discuss Australia’s record with respect to Australian aborigines. The 1991 White Paper on Human Rights states China’s current position.

China’s government is sensitive to how others view its record and to international pressure. Western political leaders for their part raise human rights issues to avoid being seen as “soft on China” and the recent US “Axis of Evil” view of the world has challenged China. Consequently the CCP prefers dealing with foreign companies to concerned foreign governments but China’s economy is expanding rapidly and consequently resource hungry so dealing with international concerns may be regarded as vital to China’s interests. It is now also able to use both its economic power and beneficence to get what it wants internationally more than ever. In return for assistance to some poor African countries, for example, China has been able to secure valuable contracts for many of the resources of those countries. Consequently, there are now no shortages of suitors attracted by the novel power of China especially among the poorest nations.

Since 9/11 China has been willing to discuss the issue of international terrorism internationally (partly as it is dealing with long-standing mainly Muslim Uighur and sometimes violent separatism movements mainly in Xinjiang some of which have international elements). The CCP government has agreed to support the US against terrorism hoping this support will be returned by the US overlooking China’s suppression of its Muslim Uighur minority. Internally, the CCP also likens various movements to international terrorist movements for propaganda purposes.

China’s main foreign policy aims may be seen broadly as preservation of national integrity, promotion of national economic development and promotion of security interests (especially in the Asia-Pacific Region). Among China’s current international concerns are Taiwan and the South China Sea and its territories. China claims Taiwan, various South China Sea island groups and much of the Sea itself as territory of China and much of the claim is in dispute internationally. China demands that countries that have diplomatic relations with it recognise its claims and especially its ‘One China’ policy that affects Taiwan in particular and regard its actions in the region as a matter internal to China (with mixed success). Oil found in the South China Sea region complicates this situation (as it is prone to do to situations). Water is becoming valuable in China and an international issue as evidenced by China’s recent willingness to trade land in its West (with, I think, Kazakhstan) for certain local water rights (in a little publicised move).

Asia (China’s neighbourhood) has been relatively peaceful for some time now and China recognises this relative stability is in its current interest, however, and generally strives to promote this. Nevertheless nationalism tends to provoke incidents with Japan (and to an extent with Taiwan). The worst recent incident involved the Senkaku Islands in 1996 and resulted from popular pressure on the Chinese government. The dispute continues to occasionally flare as both Taiwan and Japan also lay some claim to the islands. Again, oil reserves are possibly involved beneath the surface of this tripartite dispute.

The so-called ‘overseas Chinese’ have also played a major role in China’s international legal relations as China develops. Up to two million Taiwanese now reside on the mainland and China manages its relations with the Chinese-language press throughout the world. Some of the ‘overseas Chinese’ have also acted as agents for China in its ‘aid-for-resources’ business in Africa and there are also many Chinese in Australia, of course.

Australians dealing with China should beware! China is no longer in the mood to be patronised by the West and, as our second most important trading partner already and soon to be relatively more important, Australians must understand China. The China that can say No is a worthwhile text that reveals how far China’s self esteem has recently come. China now has wealth and self confidence. Australia moreover is capable of finding grounds for cooperating with China in multilateral forums.

Jocelyn Chey of the University of Sydney has spoken of how easily Chinese can be accidentally insulted by cultural insensitivity and how she has personally noticed examples of this since the late 1970s in organising film maker and student exchanges when memories of the CR were fresh in many minds.

A loss to Hong Kong in soccer was also apparently capable of provoking serious popular outrage in China in that era. China was surprisingly dangerous for foreigners for a few days after the loss including Professor Chey.

Professor Chey also remembers being told during wool trade discussions she had attended in China only six days after the event that evidence of the Tiananmen massacre that she mentioned having seen live on Hong Kong TV was a fabrication.

Her suggestion for dealing with the Chinese in commerce is to first remember the Chinese saying “the commercial field is a battle field”. She says Chinese people will respect you if they know which side you’re on and you remain loyal to that side and once again if you “don’t patronise them”.

Late Zhou Political, Legal (and Moral) History

When Jin (晉) was partitioned and the ruler of Qi (杞) was also challenged this led to the Warring States period but this was the end of an historical era that I must now examine. The Warring States period may be seen as a failure of the ideas men but many of the ideas persist into and greatly influence both the ancient China that came out of the Warring States period and modern China. The Warring States were in fact involved in a contention essentially of ideas that political contention had produced. But how?

An initial innovation occurred in Qi under the Prime Ministership of Guan Zhong (管仲) (in the mid 7^th Century BCE so well before the Spring and Autumn period began). For war purposes, PM Guan divided Qi into divisions of five households each. Serfdom was being eradicated in the name of promoting the loyalty of subjects and the later 7^th Century saw the ruler of Jin making formal grants of land. Appointment of administrators was one of the necessary corollaries of instability (a meritocratic method of appointment to a public service was first formally promoted especially by the Mohists (followers of Master Mo, a 5^th Century BCE political thinker) but it was really only natural and was actually a fait accompli by the 5^th Century).

A further innovation of the Spring and Autumn period was the idea of law in many of the realms. This effectively provided a ruler with a means of establishing authority over (generally) his realm by his provision of legal remedies in local events of conflict. One well established early example was the promulgation of laws in Zheng (鄭) in 543 BCE. Commerce and a degree of mass production in industry were also expanding with the instability in the Spring and Autumn period perhaps counter intuitively but produced by the efficiency and innovation that instability and its corollaries wrought. Much of the commerce was in implements of warfare, though.

All of the above ran rather counter to any idea of totalitarian rule as wealth and ideas tended to destabilise traditional roles and motivations. Crudely, the reasons scholars and meritocracy became so vital and pervasive were at first all of the military conquests. A king would conquer new territory and feel the need to divide his territory for administrative purposes due to the extra requirements of administration, taxation, etc. The divisions came to be called Xian (縣) and the chief administrators came to be called Shi (士) or Ru. We call the Shi (or Ru) knights in most English translations (Ru emphasises the scholarship more). The knights tended to be well-educated in order that they might do their quite sophisticated jobs well and so a scholarly tradition was born.

Each Xian had an educated Shi, then, but also many other educated men who missed out on becoming the local head Shi who were thus eager to become travelling scholars and teachers and prove their worth to the metropolitan or other rulers.

One well known example of a complex state of the 4^th Century BCE under the aegis of Zhou was the State of Qin (秦) under the Prime Ministership of Lord Shang (Shang Yang (商鞅)). It was divided into 31 Xian.

So Confucius (Master Kong) was one of many scholars with political ideas on offer (just as China was also ruled by many rulers). Basically he proposed that older brothers, parents and ancestors (and all other people, too) be accorded due respect as tradition dictated and did not exempt rulers from this requirement. So he was seen as and was a radical conservative harking back to tradition.

In Kong's era, the Zhou emperors were not powerful. Two of the five major states in the era (the ‘age of a hundred schools’ blossoming and contending) coincided roughly in their outlooks with two of the major developing human-as-political-animal schools of thought: Kong’s philosophy and Lord Shang's Legalism. The states were Song (宋), a remnant state of the earlier Shang (商) dynasty near Kong’s minor home state of Lu in the East (and a traditional state roughly compatible in outlook with Kong’s ideas) and the up-and-coming upstart Qin state in the West.

Kong’s radical modernizing opponents ideologically (the Legalists) had a less humanist view of rule that tended to appeal more to the Qin rulers (like Lord Shang). There were lively ethical debates but Shang came down definitely on the side of dividing his population into groups of five and ten, enslaving merchants and some craftsmen along with the unemployed, reputedly standardizing weights and measures and creating 31 Xian.

Shang was a 'law and order' ruler and didn't trust his people an inch, a wise move according to his Legalist brethren. Their ideas are usually represented today by the work of Han Fei Zi (韓非子). Conspicuous in Shang’s law book were the Draconian or Shari’ah-like punishments advocated that were Legalist heaven. A Confucian would have probably called such punishments unnecessary (not to mention overkill).

The book of the ideas of Han Fei Zi that survives suggests that people are quite simply motivated by only two drives: the drive for pleasure and the desire to avoid pain. Legalists viewed virtue as exceptional in humans (i.e. nowhere near the rule Confucians hoped it was). So Kong and his followers were seen by Legalists as idealists seeking vainly to promote (mainly) what they called benevolence among vile creatures that would rarely practice it voluntarily.

In an era before the idea of constitutional monarchy it made sense that weak or bad rulers needed to be governed in some way by laws and so Legalism sought that way. In anticipation of the inevitable unintelligent, unwise and even bad rulers (that would inevitably be produced eventually by any absolutist dynastic system) they wanted him (not likely her) to be guided by their laws. They still fell short of having constitutional ideas, however, and Kong’s ideas could perhaps be seen as possessing at least the inchoate constitutionalism they lacked.

Han addressed the wise ruler when he stressed the idea of clarity and certainty of law – a version certainly of the rule of law however imperfect in practice without actual constitutional limitations on actual regal power. Han abhorred discretionary power and complexity in law – it must contain simple rewards and punishments and no ifs, ands, buts or maybes – no exceptions - as dictated by the simple idea of human motivations that he asserted. The king was the machine operating authority that commanded obedience as of right in this mechanical legalist structure of the state as machine for dummies.

Besides those two ideas, Legalism and Confucianism, and besides the Qin and Song states, there were of course others. There were many other ideas men. I’ve already mentioned the Mohists who had ideas concerning a meritocratic public service system. Among the theorists were also military ideas men. One of the ideas concerned preferring the avoidance of actual battles in war with a putative enemy by means of intimidation. Master Sun talked about how to fight bloodless wars and Mo Zi argued against wars of aggression altogether. There were also three other major states.

Merit seemed self-evidently to trump family connections in this era of travelling ideas men and innovating rulers seeking their services. One Qi ruler even set up a kind of research institute for philosophers.

Manpower in both agriculture and warfare were equally highly valued and efficiencies in its application were especially sought for one reason – state security. The actual state of affairs for the subject was always uncertain, though, as long as one day one could have a benevolent Confucian ruler and the next a legalist one and this was the nature of a disunited China in the late Zhou Spring and Autumn and Warring States periods.

Confucians actually idealised this undoubted contention, however, as their humanism is inherently optimistic if not progressive. They promoted the education of rulers as well as others (especially in their own ideas) as a progressive force. One legalist Qin ruler on the other hand organised a burning of books rather than suffer books to exist that lacked the fulsome and unqualified respect due to the ruler.

The idea of war itself also developed in the late Zhou era from the chariot-bound aristocratic and gentlemanly pursuit it was in the Spring and Autumn period to the pursuit of relatively large conscript peasant infantry armies in the more scientific and relatively total and unconventional wars of the Warring States period. The individualist art of war had thus been replaced to an extent by the more conformist science of war (and individualism had become correspondingly less favoured). The commander’s job became to mesmerise his own troops into a fighting frenzy with bells and drums and simultaneously intimidate his opponent’s. Divination as a means of predicting the results of wars also ceased to be used over these periods.