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”.

Mao in the Balance - Developing Issues of Concern

The problem for the more educated city youth of the era was that having inspired them Mao completed his reform process by sending them to learn from the peasants. The problems for the PRC included that ex Red Guards began to feel used (and abandoned in the countryside). In addition they really did learn from the peasants (that Mao’s China was not working for them well at all) so began to lose faith in the promise of socialism there and had the free time to discuss all of this far enough from the centre of power in Beijing to be dangerous. They had been told by Mao to think for themselves and chose to take it literally. They were now radicalised in ways that Mao had probably not anticipated. They began to genuinely question not only the CCP but also Maoism itself and in fact the whole system. The CR would also have echoes in the culture fever that the people of China would experience later in cinema and other art forms. It was a potent revolution.

While this was going on in the countryside the lifestyle created by the urban work units would produce its own issues. Two ownership models for work unit businesses developed: state ownership of larger enterprises and collective ownership of smaller concerns. In the period from 1952 to 1975 the urban workforce increased from 28.6 million to 82.2 million. The percentage of this group employed in a work unit also increased in the same period from 56% to 99.8%. The number of those workers employed in state owned enterprises as compared to collective businesses also increased from around two to around four times the numbers over the period.

So that was quite a transformation begun by the massive urbanisation and guided by the danwei system devised to facilitate the latter’s success. The work unit one belonged to was usually one of the first questions one was ever asked by a new acquaintance or the authorities. These workers, of course, might be older siblings or cousins of the newly questioning students for the time being banished to the countryside. In a sense they were also under a punishing regime as they weren’t permitted to travel without the written permission of their work units.

In theoretical terms the danwei was supposed to be the correct socialist form of the traditional family (replacing the clans, guilds and gangs) with the ganbu as the family head (and also pastor of the socialist flock). The mass line process was still supposed to operate at this level and also the danwei was a unit for planning purposes promoting productivity and its own self-sufficiency. It was responsible for social security in the form of employment provision, healthcare, housing, childcare, benefits and pensions among other things. The term used for this cradle to grave welfare function was the ‘iron rice bowl’. The danwei was also the policing authority, the mobiliser for political campaigns and work efforts, the issuer of identification documentation, the producer of personnel files and the actual provider of the identity of workers. The policing authority’s role also went to policing of politics and population policy among other things. The provision of sporting and cultural events was included in this conception of the functions of the danwei.

So was this collectivisation the beginning of utopia? No, it probably wasn’t. People were too politicised and factionalised by the nature of the system which was a system of Marxist hermeneutical navel-gazing and propagandistic spin. Bureaucracy flourished despite all of Mao’s sincere efforts and corruption was consequently in part endemic. ‘Connections’ had to be relied on to gain access to adequate resources. Then too there was little real material incentive to work hard and people consequently generally didn’t (once the glamour of Communism began to wear out) with productivity and therefore wealth consequences. The use of ‘connections’ also inevitably led to well-connected but inefficient managers rising to management positions and in turn allocating resources based on ‘connections’.

All this was reformed to some extent later (after Mao) and I’ll discuss the problems further later when I refer to those reforms. In the next post I’ll review a few of the overall assessments made of Mao over the last few decades before properly getting into the post-Mao era.