The United Nations Universal Periodic Review on China’s Human Rights Geneva, February 9 and 11, 2009 What Questions to Ask, What Recommendations to Make

February 6, 2009       Comments Off on The United Nations Universal Periodic Review on China’s Human Rights Geneva, February 9 and 11, 2009 What Questions to Ask, What Recommendations to Make

The United Nations Universal Periodic Review on China’s Human Rights

Geneva, February 9 and 11, 2009

What Questions to Ask,

What Recommendations to Make

An Easy Guide for Participating Member-States, Other Stakeholders and the Media

Chinese Human Rights Defenders (CHRD)

Directions:

For participating diplomats and delegations of UN member states

This guide facilitates your participation in the “Interactive Dialogue” with China during the Fourth Session of the Human Rights Council (HRC)’s Universal Periodic Review (UPR) of China on February 9, 2009. It is prepared on the basis of documents compiled by the Office of the High Commissioner for Human Rights (OHCHR) and CHRD’s own submission to the UPR Working Group. In this guide, we also try to respond to China’s National Report submitted to the HRC (A/HRC/WG.6/4/CHN/1, hereafter referred to as the National Report) for the purpose of the UPR. We have included in this list some of the most concerning areas of human rights, where improvement is wanting, and in which the Chinese state has reported “progress” in its National Report. We have tried to make each set of questions and recommendations concise and brief so they can be presented within the two minutes allocated to each delegation willing to speak during the three-hour session.

For NGOs and other stakeholders

This list can assist you in your efforts lobby the delegations from your own countries or delegations from other states, to make sure that they ask good questions about the human rights problems in China and make useful recommendations.

For the media

Reporters can ask the Chinese delegation attending the UPR in Geneva, or the spokesperson for the Ministry of Foreign Affairs in Beijing, to answer some of these questions. Reporters can also ask press secretaries or spokespersons from their own governments whether they are going to ask some questions or make recommendations from this list.

The questions and recommendations presented in this memo do not reflect the serious concerns of CHRD alone. They are the result of a synthesis of relevant UN documents compiled by the OHCHR, those produced by UN treaty bodies and special procedures and from other stakeholders, as well as CHRD’s submission to the UPR working group. They are organized under 16 areas of serious concern about violation or lack of protection of human rights.

Areas of Serious Concern:

1. Respect to human rights principles and integrity of human rights

2. Protection of social and economic rights

3. Protection of freedom of the person and administrative detention

4. Torture prevention and complaint procedures

5. Right to life and the death penalty

6. Administration of justice and the rule of law

7. Workers’ rights, including right to just and favorable conditions of work

8. Discrimination against women and female children

9. Violence against women and human trafficking

10. Freedom of speech and information

11. Freedom of religion, freedom of association and peaceful assembly

12. Right to social security and to an adequate standard of living

13. Health rights and environmental rights

14. Right to adequate housing

15. Right to education

16. Minorities and indigenous peoples and the right to participate in the cultural life of the community

1. Respect to human rights principles and integrity of human rights

Question 1: In China’s National Report, China re-affirms that it “respects the principle of the universality of human rights,” and asks the international society to “respect the principle of the indivisibility of human rights and attach equal importance to civil and political rights and economic, social and cultural rights as well as the right to development,” (para. 6, as well as para. 9, which mentions that the Chinese Constitution protects the full range of civil and political rights).

  • Why has China not ratified the International Covenant on Civil Political Rights (ICCPR) ten years after its ratification of the International Covenant on Social, Economic and Cultural Rights (ICSECR)?

Recommendation 1:

  • The first step that China can take towards “paying equal attention” to both sets of human rights is to consider ratifying the ICCPR and its two protocols.

2. Protection of social and economic rights

Question 2: In China’s National Report, China re-affirms that it “respects the principle of the universality of human rights,” and asks the international society to “respect the principle of the indivisibility of human rights and attach equal importance to civil and political rights and economic, social and cultural rights as well as the right to development,” (para. 6, as well as para. 9, which mentions that the Chinese Constitution protects the full range of civil and political rights).

  • Why did China withdraw its declaration on Article 8, Paragraph 1, of the ICESCR, protecting “the right of everyone to form trade unions and join the trade union of his choice”?
  • Why has China refused to ratify Optional Protocols or taken reservations on key articles in other treaties concerning social economic rights such as the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child?

Recommendation 2:

  • China should consider withdrawing its reservation on the article governing workers’ right to organize independent trade unions in the ICSECR.
  • China should also consider supporting other social and economic rights treaties, such as ratifying the Optional Protocol to the CEDAW, which establishes an individual complaints mechanism for CEDAW and recognizes the competence of the CEDAW Committee to consider complaints from individuals or groups who claim their rights under CEDAW have been violated.

3. Protection of freedom of the person and administrative detention

Question 3: The Chinese constitutional provision (Article 35) adopted in 2004 declares the inviolability of citizens’ freedom of person. Furthermore, China’s National Report asserts that the Criminal Law and the Criminal Procedure Law seek criminal accountability of all government officials for illegal deprivation of freedom of the person, and that these laws provide that arrests of criminal suspects must be approved by the People’s Procuratorate or the People’s Court. (paras. 45 and 46)

  • But how does China explain the existence of a large system of administrative detention, including Re-education through Labor, Shelter for Education, forced detoxification, and other methods under which police or government officials can deprive citizens of their freedom without due process?
  • How does the Chinese government explain the widespread use of extra-judicial and unofficial detention facilities known as “black jails” (heijianyu) and psychiatric institutions to detain individuals, especially petitioners?

Recommendation 3:

  • China should set a timetable to abolish the Re-education through Labor system and other forms of extra-legal, extra-judicial detention facilities.
  • Any punishment that involves deprivation of liberty must be subsumed under the Criminal Law system where some procedural guarantees exist.
  • China should also consider abolition of all other illegal facilities and provide information about the detention of petitioners, human rights defenders and dissidents in these arbitrary detention facilities.

4. Torture prevention and complaint procedures

Question 4: China’s National Report highlights national legislations to prohibit and punish acts of torture as well as provide channels for victims’ complaint and compensation, and the National Report claims that incidences of torture used to force confession and mistreatment of prisoners have dropped (paras. 49 and 50).

  • Could China provide cases and nationwide statistics to show how these laws are being implemented and to support the claim that the use of torture to force confession has decreased, as requested by the Committee against Torture in its “Concluding Observation and Recommendation” (CAT/C/CHN/CO/4) after reviewing China’s 4th reporting?
  • Why does China still refuse to ratify the Optional Protocol of the Convention Against Torture (CAT) and still have reservations about Article 20 of the CAT? These provisions allow the Committee against Torture to verify whether anti-torture laws have been implemented and whether the use of torture in collecting evidence has decreased.

Recommendation 4:

  • China should ratify the Optional Protocol of the CAT, withdraw its reservation on Article 20 of the CAT, and provide the Committee against Torture with the requested data or statistics.
  • Additionally, China should recognize psychological abuse as torture under Chinese law and take specific measures to prevent torture and ill-treatment in all known types of detention facilities.
  • China must address two over-arching problems that stand in the way of ensuring legal safeguards for the prevention of torture: the 1988 Law on the Preservation of State Secrets and Criminal Procedural Law 96, which have been routinely used to deny detainees’ access to lawyers and to public trial, and the abuses carried out by unaccountable “thugs” apparently hired or encouraged by authorities or plainclothes policemen who use physical violence against specific individuals but enjoy de facto immunity.

5. Right to life and the death penalty

Question 5: Why has the Chinese government not released any statistics to demonstrate that, as China’s National Report proclaims, “the death penalty is strictly controlled and cautiously used … it is applied only in ‘extremely serious crimes'”, and that the restoration of the highest court’s authority to review and approve death sentences is a positive step towards reducing the numbers (paras. 43 and 44)?

Recommendation 5:

  • Death row prisoners should not be subjected to additional punishment; the restoration of Supreme Court review for all death sentences should be utilized as an opportunity to publish national statistics on the application of the death penalty; and the scope of the death penalty should be reduced.
  • A timetable should be set for the eventual abolition of the death penalty.

6. Administration of justice and the rule of law

Question 6: China’s National Report mentions that the newly amended Lawyers Law “safeguards the rights of lawyers in litigation, including the right to meet clients, right of access to files, right to investigate and collect evidence and the right to defend” (para. 54).

  • Could the Chinese delegation address the institutional weakness and lack of independence of the Chinese judiciary, particularly, the decision making power of the CCP Political and Legal Committee (zhengfawei) over the court?
  • Could the Chinese government explain how the rights of the lawyers can be protected when Article 306 of the Criminal Law and Article 37 of the Lawyers Law allow the state to imprison lawyers for defending their clients in criminal cases?
  • Could the Chinese government explain the many reported incidents of assault and persecution of human rights lawyers and the restrictions on lawyers’ access to their clients on the grounds of their cases involving “state secrets”,?

Recommendation 6:

  • Abolish Article 306 of the Criminal Law as well as Article 37 of the Lawyers Law.
  • Abolish Political and Legal Committees.
  • Establish an independent committee of experts to investigate alleged persecution and harassment of human rights lawyers and hold officials accountable.

7. Workers’ rights, including right to just and favorable conditions of work

Question 7: China’s National Report states that China has passed legislation to protect workers and lists the number of members of government-organized trade unions. (paras. 23-27)

  • But why does China still prohibit individuals from exercising the rights to organize and join independent trade unions and to strike?
  • Could the Chinese delegation address deep concerns about poor and hazardous conditions of work, especially for internal migrant workers, as well as about children working in hazardous occupations, often in precarious conditions that fall short of international labor standards?
  • Could the delegation indicate how the government will effectively reduce the alarmingly high incidence of serious occupational accidents and respond to a 2006 UN Development Group report[1] regarding work safety that stated over one million individuals are killed or injured each year?

Recommendation 7:

  • China should lift its prohibition on the exercise of the rights to organize and join independent trade unions.
  • China should pass legislation as soon as possible to regulate the exercise of the right to strike.
  • China should establish a wage enforcement mechanism adjusted to the cost of living, facilitate the redress of wage claims, and take sanctions against employers who owe wages and overtime pay and impose fines and penalties on their workers.

8. Discrimination against women and female children

Question 8: China’s National Report listed recent legislation, policies and programs aimed at eliminating discrimination against women and promoting gender equality and strengthening protection of children (paras. 63-65, 67-68).

  • But why have “deep-rooted stereotypes, reflected in concerns such as son-preference, which lead to a high adverse sex-ratio and illegal sex-selective abortion and…continue to devalue women and violate their human rights”[2] persisted?
  • Why has the abandonment of mostly female children continued, which has concerned the Committed on the Rights of the Child?

Recommendation 8:

  • To address the issue of discrimination against women and female children, China should:

expand insurance systems and old-age pensions to the population at large, particularly in rural areas, while strengthening both efforts to ensure that all girls are registered at birth, again particularly in rural areas, and efforts to register children with disabilities and older children.

  • China should also strengthen efforts to eliminate discrimination against girls; children infected with or affected by HIV/AIDS; children with disabilities; Tibetan, Uighur and Hui children and children belonging to other ethnic and religious minorities; internal migrant children and other vulnerable groups by, inter alia, ensuring that these children have equal access to basic services.
  • Furthermore, China should end the de facto discrimination against internal migrants under the current hukou residency system, which often denies migrant children access to health care.

9. Violence against women and human trafficking

Question 9: China’s National Report listed recent statistics showing “progress” in promoting gender equality and strengthening protection of children (paras. 66, 69).

  • Could China address concerns about the alleged use of coercive and violent measures to implement the population policy and about reported incidents of violence against women in detention centers (including Tibetan nuns)?
  • Could China address the impact of the adverse sex ratio (which may contribute to the increase in trafficking in women and girls for sexual exploitation purposes), the problem of the sale of women and girl children, and the increase in the number of domestic violence cases?

Recommendation 9:

  • China should adopt a comprehensive law on violence against women and should provide immediate means of redress and protection to female victims of violence.
  • China should speedily complete, adopt and implement the draft national program of action against human trafficking.
  • China should also cease persecution and harassment of activists who challenge local governments in their use of violence in implementing family planning policies.

10. Freedom of speech and information

Question 10: China’s National Report reiterates Constitutional protection of free speech and provides statistics on expanding media and a new regulation on transparency of government information. (paras. 59-62)

  • Could the Chinese delegation address the deep concerns about the restrictions placed on access to information with regard to academic research, foreign and domestic publications and the Internet? Some restrictions worth mentioning include the necessity of gaining approval from the CCP Propaganda Department prior to publishing articles about government affairs (and failure to do so may place journalists at risk of imprisonment for “leaking state secrets”), the monopolization of dissemination of information about the government by the State Council Information Office, and the requirement that media workers obtain “press cards” (jizhezheng) which are only distributed by the state.
  • Could the Chinese delegation address concerns about violations of the freedom of expression, such as harassment, arrests, detention and imprisonment of individuals under Article 105 (2) (stipulating the crime of “inciting subversion of state power”) of the Chinese Criminal Code for writing articles critical of the Government, including internet bloggers and petitioners?

Recommendation 10:

  • All individuals who have been sentenced for the peaceful exercise of freedom of speech should be released. China should remove restrictions on freedom of information and expression.
  • China’s legislature should act to interpret Article 105(2) to clarify and precisely define the meaning of the terms “incitement,” subversion” and “state power,” as well as the specific conditions under which an act of expression may constitute “inciting subversion of state power.” Such conditions must explicitly exclude any peaceful activity in the exercise of the right to freedom of expression, including expression critical of political parties and government authorities.

11. Freedom of religion, freedom of association and peaceful assembly

Question 11: China’s National Report discusses the rapid increase of practitioners of religions and the Chinese Constitution’s protection of religious freedom. (paras. 55-58)

  • Could the Chinese delegation address numerous cases of persecution, documented by human rights organizations, against followers of “unofficial” Christian sects, and against Falun Gong practitioners, including arrests, detention, torture and imprisonment?
  • Please also address allegations of human rights violations, including those against human rights activists and petitioners, housing and land rights activists protesting forced evictions and seizures, defenders of the Uighur community and the Tibetan community, environmental activists, HIV/AIDS activists, and labor rights activists.

Recommendation 11:

  • All persons who have been sentenced for the peaceful exercise of freedom of assembly, association and religion, on the basis of vaguely defined political crimes, both before and after the 1997 reform of the Criminal Law, should be released.
  • Political crimes which, as currently defined, grant large discretion to law enforcement and prosecution authorities (such as “endangering national security”), should be abolished.
  • China should provide information demonstrating that human rights defenders are able to freely conduct their work, disseminate information, present a petition, criticize the government publicly, or conduct other peaceful activities without the likelihood of attracting criminal charges.

12. Right to social security and to an adequate standard of living

Question 12: Could the Chinese delegation address the deep concern that, despite the rapid economic development and increasing social security programs in recent years as referred to by China in its National Report (paras. 28-30), poverty persists?

  • While China has allocated resources to the development of poorer regions and for people living in poverty, why has poverty persisted, in particular with regard to certain regions and specific populations (including, but not limited to, rural citizens, in particular women, citizens of Western China, and members of ethnic minority groups), and why have disparities grown?

Recommendation 12:

  • The Chinese government should change its focus on the development of infrastructure over social spending, and address the impact of this focus on women and girls, in particular in rural areas.
  • China should extend social assistance to rural areas that are presently not covered.
  • The Chinese government should adopt a mechanism to measure the poverty level and monitor and evaluate progress in alleviating poverty. China should conduct a gender impact analysis of all social and economic policies and poverty reduction measures.

13. Health rights and environmental rights

Question 13: While China’s National Report notes the impressive efforts made in providing health care and addressing environmental concerns (paras. 38-41), could the Chinese delegation address concerns regarding existing disparities between rural and urban areas, eastern and western provinces, and Han and ethnic minorities relating to child health indicators?

  • Could the delegation explain why funds allocated to public health have diminished despite the overall increase of health-care expenditures over the past decade, and why maternal mortality rates remain high and there are rising costs for health care, such as user fees, which limit rural women’s access to health services?
  • What plans of action will China take to change the fact that some of China’s cities are among the most polluted in the world, that much of China’s water resource is unsuitable for human use?

Recommendation 13:

  • The Chinese government should extend affordable health care to rural areas and other areas where current health care provisions are poor.
  • China should adopt a mechanism to measure disparities in health care and monitor and evaluate progress in narrowing the gaps.
  • China should conduct a gender impact analysis of health care policies.
  • Furthermore, China should stop persecuting environmental activists and protestors who oppose the construction of polluting industries.

14. Right to adequate housing

Question 14: While China’s National Report notes the State’s effort in providing housing (paras. 31-33), could the Chinese delegation address concerns about the reports of forced evictions (including numerous documented instances of officially-sanctioned violence against residents) and insufficient measures to provide adequate compensation or comparable alternative housing to those who have been removed from their homes in the context of urban development projects as well as of rural development projects?

  • Could the delegation respond to the 2007 UN Habitat report that during the 2001 to 2008 period, it is estimated that 1.7 million people were directly affected by demolitions and relocations related to the Beijing Olympic Games?[3]

Recommendation 14:

  • The State should adopt measures to respect property rights.
  • China should also ensure that individuals removed from their homes receive adequate compensation for their property.
  • Individuals, whether they are officials or those affiliated with or working on behalf of the state, should be held accountable for using violence in evictions and demolition.
  • China should also ensure effective consultations and legal redress for persons affected by forced evictions and demolitions.

15. Right to education

Question 15: While China’s National Report notes the State’s efforts in providing education (paras. 34-37), could the delegation address concerns about the continued irregularities in the State’s provision of universal access to free compulsory primary education, in particular with regard to rural communities, girls in minority regions, disadvantaged families and the internal migrant population? Could the delegation explain why illiteracy and school dropout rates continue to disproportionately affect rural girls?

Recommendation 15:

  • The Chinese State should eliminate all miscellaneous and other “hidden” fees for primary education, increase the allocation of resources to education in step with increases in GDP and target those resources towards ensuring that all children complete nine years of compulsory education and have equal access to early childhood education and development programs.
  • The government should take effective measures to eliminate all discriminatory policies hindering access to education for migrant children.

16. Minorities and indigenous peoples and the right to participate in the cultural life of the community

Question 16: China’s National Report provides indicators of its efforts to protect ethnic minorities (paras. 73-76), however, could the Chinese delegation explain why China’s 55 ethnic groups account for 8.4 per cent of China’s total population, yet make up more than 40 per cent of its absolute poor?[4]

  • Could the delegation address concerns about reports relating to the right to the free exercise of religion as a right to take part in cultural life, and the use and teaching of minority languages, history and culture in the Tibetan and Xinjiang Uighur Autonomous Regions?

Recommendation 16:

  • China should take all necessary measures to ensure the full implementation of the Regional Ethnic Autonomy Act.
  • The Chinese State should make it a priority for international cooperation to ensure that children in all minority areas have the right to develop knowledge about their own language and culture and are provided with equal opportunities, particularly with regard to higher education.

______________________________

Sources:

China’s National Report to HUMAN RIGHTS COUNCIL Working Group on the Universal Periodic Review, for its Fourth session, Geneva, 2-13 February 2009, A/HRC/WG.6/4/CHN/1, 5 December 2008.

A compilation by the Office of the High Commissioner for Human Rights of the information on China contained in the reports of treaty bodies and special procedures, A/HRC/WG.6/4/CHN/2, 16 December 2008, for the HUMAN RIGHTS COUNCIL Working Group on the Universal Periodic Review, Fourth session, Geneva, 2 -13 February 2009.

A summary of 46 stakeholders’ submissions to the universal periodic review by the Office of the High Commissioner for Human Rights, A/HRC/WG.6/4/CHN/3, 5 January 2009, for the HUMAN RIGHTS COUNCIL Working Group on the Universal Periodic Review, Fourth session, Geneva, 2 -13 February 2009.

Submission to the Universal Periodic Review Working Group of the United Nations Human Rights Council, Country: People’s Republic of China, Submitted by: Chinese Human Rights Defenders (CHRD), an NGO stakeholder: /Article/Class9/Class10/200901/20090105233906_12874.html

Abbreviations used for this document:

CAT: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment

CEDAW: Convention on the Elimination of All Forms of Discrimination against Women

CCP: Chinese Communist Party

CHRD: Chinese Human Rights Defenders

CRC: Convention on the Rights of the Child

HRC: Human Rights Council

ICESCR: International Covenant on Economic, Social and Cultural Rights

ICCPR: International Covenant on Civil and Political Rights

ICCPR-OP 1: Optional Protocol to ICCPR

ICCPR-OP 2: Second Optional Protocol to ICCPR, aiming at the abolition of the death penalty

OHCHR: Office of the High Commissioner for Human Rights

OP-CEDAW: Optional Protocol to CEDAW

OP-CAT: Optional Protocol to CAT

UNDG: United Nations Development Group

UPR: Universal Periodic Review

Notes:

[1] UNDG, Resident Coordinator Annual Report on China, 2006, available at http://www.undg.org/rcar.cfm?fuseaction=RCAR&ctyIDC=CPR&P=490

[2] CEDAW, CRC/CHN/CO/2, para. 28

[3] UN-Habitat, Global Report on Human Settlements 2007, Enhancing Urban Safety and Security, 2007, Nairobi, p. XXIX, available at http://www.unhabitat.org/downloads/docs/GRHS.2007.0.pdf

[4] A/HRC/WG.6/4/CHN/2, paragraph 39, endnote 128

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