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”.

Now a bit of Social, a bit of Political and a bit of Economic (post 1989)

The leadership in the period we are now considering was as follows:

General Party Secretary Premier

1989-1997: Jiang Zemin Li Peng

1997-2002: Jiang Zemin Zhu Rongji

2002-2011: Hu Jintao Wen Jiabao

Jiang was the key to much of the social and economic happenings immediately following on from the events of 1989. Deng Xixian (another of Xiaoping’s names) had limited ongoing influence until his death in 1997. Firstly, Jiang engaged in economic restructuring and the impacts were predominantly felt by the new unemployed and the new migrant workforce. Zhu was also a particularly strong promoter of growth and reform and the current leadership has continued the process. Privatisation of housing was also continued.

Foreign trade and investment, rapid private sector expansion and state restructuring continued to be increasingly on the agenda. Integration with the global economy also proceeded and China finally joined the World Trade Organisation in December 2001. Utilised foreign direct investment that had been in the region of 5 to 10 billion US dollars at around the time of Tiananmen was in the region of 50 to 60 billion before the next decade had ended (it appears that only the 1997 Asian Financial Crisis kept it from being greater). Trade (both imports and exports) followed a similarly exponential-style trend as did GDP (it grew at 9.4% per annum in the period 1980 to 2004 and hasn’t really slackened since).

With that growth there was also increasing income inequality along several dividing lines. The greatest beneficiaries in terms of income growth and absolute income were the employed urban workforce and rural workers in the eastern provinces. Western province rural workers and the unemployed benefited least relatively and central province rural workers were somewhere in the middle on these relative and absolute income measures.

At 2004 the UN-determined poverty line was 3,000 Yuan (Renmin Bi – People’s Currency (RMB)) per annum and while urban workers were averaging nearly 10,000 Yuan rural workers averaged just under the 3,000 nationally at 2,936 (the Chinese government’s official poverty line was 650 Yuan). Shanghai had the highest average rural income of the thirty traditional mainland provinces at 7,066 and Guizhou had the lowest at 1,722 RMB.

China’s Gini coefficient (an indicator of inequality) was 0.30 in 1980 and in 2004 it had grown to 0.45 (a coefficient over 0.4 is considered dangerous inequality for social stability by some authorities – Sweden’s is around 0.2, Australia’s is around 0.3 and the US’s is also around 0.45). The UN Development Programme concluded in 2004 that China was the 90^th highest level of equality of 130 countries assessed.

Now let’s consider what happened to the labour force especially in the SEZs and cities. With foreign direct investment came foreign management practices, knowledge and technologies. This was also guided, however, by what was deemed acceptable to the government so a new composite labour relations system developed. On the negative side was the inadequacy of the legal system and weakness of regulatory regimes.

It’s fair to say that enterprise managers came to have greater power over their workforces (with the power to hire and fire) and operational decisions along with discretion in setting wage rates and bonus rates and criteria. This, CCP acquiescence in it and the new labour contract system severely weakened the CCP-based trade unions. Also weakening the bargaining power of workers was the massive volume of retrenchments announced by Zhu from the state system (in preparation for the new competition from other sectors) and the large numbers of migrants from rural areas now competing for city jobs. The iron rice bowl (guaranteed life-time employment and the cradle-to-grave employment-based welfare system) unravelled especially from the mid 1990s.

On the plus side for workers able to demonstrate their value, the new competition among all the sectors (the state sector, the new Town and Village Enterprises (TVE) sector, the private sector and the foreign sector) for the now large pool of job seekers in a new job marketplace was quite fierce, regions and local governments competed strongly for the best workers, as well (though also for the best price possible as they also competed for investment) and the market was fairly free. On the whole, it was a major bear market, however, in the circumstances.

The state sector restructuring was overdue with local work units overburdened by over-employment, overly high wages and excessive and ongoing further iron rice bowl type obligations. It had been delayed as long as it had for fear of the political consequences. One third of all State Owned Enterprises (SOEs) were in debt. Only workers in some key sectors were able to avoid retrenchments. Some 60 million workers were laid off in the period from the mid 90s to 2001 in order to ‘save’ the sector.

The timeline below shows the development of the new urban and regional sectors:

1979: joint Chinese and foreign enterprises allowed;

1981: small-scale (less than 8 employees) private business;

1986: 100% foreign ownership of businesses allowed;

1988: limits removed from size of private businesses;

2001: in joining the WTO China agreed to progressively open banking, insurance, telecommunications and media sectors to foreign direct investment.

In the rural sector, Decollectivisation led to surplus labour of from 200 to 300 million people. The rural economy also became diversified as a result of the Decollectivisation. The Mao era hukou household registration system which had attempted to regulate migration and particularly to limit rural-to-city migration was relaxed from 1978 as it had to be in the circumstances but it was a gradual relaxation. Migration to cities was a rational decision for many because of the ‘pull factor’ of rural/urban income disparities.

Major changes had occurred in the macroeconomy in the first twenty years post-Mao. In 1980 the rural economy had produced 30% of China’s GDP and that percentage had halved by 2003 to 15% while the percentage produced by the services sector increased from around 20 to around 46 percent and the industry share reduced from around 50% to around 39%. That 15% rural production in 2003 was produced by 49.1% of China’s 744.23 million workers. The services sector was the most efficient in this sense requiring only 29.3% of the workers for its 46% percent contribution while industry was the next most efficient requiring 21.6% to produce its 39% share.

Non-agricultural employment trends show the speedy development of the rural-to-city-or-regional migrant labour market and TVE sectors between 1978 and 2004. The five other sectors that existed in 2004 were state, collective, small business, foreign and private and only the last three had increased employment numbers compared to 1978 though the state sector still employed around 60 million people and the collective sector nearly 10 million. In 2004 the small business, private and foreign sectors employed similar numbers adding up to a combined total of nearly 80 million and the migrant labour and TVE sectors each employed around 140 million.

So by 2003, only 20% of the 378.8 million actual non-agricultural workers remained in the labour sectors considered regulated, meaning exploitation was likely to be occurring at a high level. Figures of welfare insurance participation rates in the private sector weren’t especially encouraging. Those covered by aged pension insurance amounted to 33.7%, unemployment insurance 10.3%, medical care insurance 21.6%, occupational injury insurance 31.8% and maternity leave insurance 5.5%.

As far as unions were concerned at least 100 million (30% of the non-agricultural workers) were not even represented by the toothless tigers that were the officially approved trade unions. Independent unions were illegal and the official union director was frequently also the enterprise manager or party branch secretary (after the 4 June massacre around Tiananmen, people who had tried to form independent unions had actually been treated much worse than the student leaders of the demonstrations had been (and that’s saying something)).

In response to some of the issues that the restructuring raised mentioned above and others, Chinese people have recently taken to protesting en masse. Official Chinese statistics of ‘mass incidents’ show a trend rise in such incidents since 1993 from a base of under 10,000 incidents and almost exponential growth since 1997 so that by 2005 there were around 75,000 such incidents noted. So the social protest movement is keeping pace with the recent economic growth.

With all this, provincial differences and prejudices have remained a feature of the Chinese landscape in the new world of regional growth to the extent that recently provinces such as the central province of Henan have found it necessary to advertise throughout China to the effect that the province and its people aren’t so bad after all.

The 80s and early 90s (an overview of Deng Xiansheng's later years)

In the 80s the children destined for the universities had been moulded by their schools to be ‘red’ and yet increasingly they were being influenced by Western ideas and dissatisfied with their low potential incomes in this period of a China in as much flux as in Mao’s time (if in the opposite direction in a sense). They began to question the idea of Communism itself, in these conditions. They began, too, to seek the changes that they wanted.

This is really what produced such a ‘culture fever’ (along with the stultification brought about by the so-called CR). Now was clearly the time to examine the culture. Now it was really possible, as free from repression as the Chinese had ever really been in China.

This was really, of course, mainly a phenomenon of the university system and this was still the system of the ruling classes. Fang told the students what they really thought they already knew (that the Communist system and Marxism were out-of-date) but he drew a wide following for doing it, all over China. He lectured on freedom and democracy all over. Meanwhile in the relative party centre Hu Yaobang proved to be a man of the people in a way most senior CCP officials of the time were not. He also sympathised more with both the plights and ideas of the masses than the others did.

In December 1986 many of the students of Hefei, Beijing and Shanghai declared in demonstrations that they had had enough and demanded freer elections (remember the 1980 experiment and its roll-back in 1986). This resulted in a number of incidents of beatings by police. In Shanghai alone, more than 30,000 students had protested with the support of many of the local population and this probably should have given someone a clue.

In defiance of the threat of beatings, students in Beijing continued their protests until 1 January 1987 and marched on Tiananmen Square where the police were ready. They had apparently watered the square so that the resulting ice would be treacherous for the students and make it easier for the police to knock them over.

They duly knocked them over while Hu publicly defended them. For his trouble he in turn was duly (and publicly) ousted by means of a specially advertised Chinese Central Television (CCTV) announcement. The repression of others including Fang soon followed in an orchestrated campaign. At the centre Zhao, the other Deng ‘puppet’, took over Hu’s lead party role, then, leaving his premiership to Li Peng.

Zhao and Li then had plenty of economic problems to deal with and one measure meant to alleviate some of them, the new ‘one child’ policy, first announced in 1979, was causing problems of its own.

The policy was neither well received nor well enforced in this period in the countryside. Farmers still needed sons to provide for them in their decrepitude and it was not legal to abort girls. Nevertheless there was a degree of enforcement. Police sometimes escorted recalcitrant women (still trying for an elusive boy) to hospitals to have their fallopian tubes compulsorily tied.

With Decollectivisation and ‘opening’ had come rural unemployment together with the increase in wealth in the SEZs that furthermore were at first mostly concentrated in the south – the north was getting a somewhat raw deal. The ‘iron rice bowl’ in the cities was causing problems because it had the effect of being a disincentive for hard work. The final main issue was the inflation that became problematic in 1988.

The leaders were more frank about these problems than Mao had perhaps ever been but the people were unimpressed by mere candour. At the same time there weren’t really many legal protest avenues.

With Hu’s death in 1989 the Beijing students were finally moved to bring their concerns to the government in the only ways they knew how: demonstrating in the square and presenting a petition outside Hu’s official funeral that took place as I mentioned in an earlier post in the Great Hall of the People.

This petition idea of course hails back to the time of the emperors and is part of a centuries-old tradition. Untraditionally the petitions were snubbed although perhaps it’s reasonable to say that a funeral probably wasn’t an appropriate time or place to present a petition. Nevertheless the petitioners gave the petition-giving attempt quite a traditional flavour and the snubbing, regarded as arrogant by many, was therefore a spur to further righteous protest with more people involved.

On 26 April the party had been sufficiently irked to proclaim via a People’s Daily (Renmin Ribao) editorial that the student movement was ‘turmoil’ – there were shades of a suggested return to the CR and Red Guards in that accusation with all the attendant opprobrium hinted at. In the past this might have cowed the students but in their already heated condition this time it merely angered them. The police seemed powerless (or perhaps unwilling) to suppress this protest movement.

So protest continued and to add insult to injury, as far as Deng was concerned, the day before Gorbachev was due to arrive in Beijing to officially consolidate a ‘thaw’ in Sino-Soviet relations (and when the world’s press were gathered to record that auspicious event) some of the students began a very inauspicious hunger strike. Also students for all over China (not to mention many Beijing workers from all parts of Beijing) were beginning to descend on Tiananmen Square to amplify the public insult.

Zhao was conciliatory and in these circumstances that led to his own immediate ouster. He and other leaders had met with student leaders (including hunger strikers clearly impaired from their physical ordeals) but all of these meetings had ended up being confrontational, such was the mood of the times.

The mood for radical change never caught on in the countryside, however (however affecting the scenes of emaciated striking students undoubtedly were) and this was a key factor in allowing the party to have a free hand in dealing with the movement. The day after Zhao’s ouster, martial law was declared.

Although at first the PLA moved slowly the crackdown was ultimately heavy. It occurred on the evening of 3 June and the morning of 4 June. At least 2,000 supporters of the students were probably killed on the streets surrounding the square attempting to defend it. The students themselves were mostly able to flee and flee they did. Some of their leadership were able to flee the country and the other known leaders were ultimately arrested.

International initial reaction was quite swift. Governments around the world condemned the PRC government’s violent suppression of the movement. Many Western companies and governments scaled down their operations within China.

Deng’s reaction to the reaction was unrepentant, however. As he evidently expected, the international mood was soon able to be restored to more or less its former state quite rapidly as, internationally, China was as needed as it needed.

China was soon to enter a period of unprecedented growth with international support that Deng began to explicitly promote again as soon as in 1992 in his “Copy Shenzhen [SEZ]” campaign following from his tour of various areas he decided were worthy of being copied including the Shenzhen SEZ. His lead role indicated a return to power of the reformist faction that the events of 1989 had only briefly discredited.

The politics of Asian values were already in evidence as the government was able to draw on local prejudice and nationalist sentiment to assert that foreign human rights concerns were really disguised Western imperialism re-packaged. The added advantage was a new kind of regional solidarity now available after the end of the Cold War that was able to be nurtured based on defence against alleged Western threats (especially the threat of US hegemony in Asia) allegedly merely disguised as human rights activism.

In the meantime, Deng gave the following expression to his ongoing faithfulness to both socialist doctrine and Dengism that can serve as his last word in this history:

If we don’t persevere with socialism, don’t reform and open up, don’t develop the economy, don’t improve people’s livelihoods, then this can only be the road to death.