Structural Problems Underpinning Systemic Violations of Economic, Social and Cultural Rights in China

February 13, 2023 Comments Off

By The Network of Chinese Human Rights Defenders and Rights Defense Network

Table of Contents

Executive Summary………………………………………………………………………..p. 1-3

Lack of Independence and Impartiality of the Judiciary………………..…p. 3-5

Intimidation of Lawyers Who Take up Cases of ESC Rights………….…p. 5-8

Restrictive Environment for ESC Rights Defenders…………………….…..p. 8-17

Ineffective Laws for Curbing Widespread Discrimination………….….…p 16-20

Systematic Deprivation of Free Trade Union Rights………………………..p 20-21

Obstructing Human Rights Due Diligence …………………………………..….p. 21-22

Conclusion …………………………………………………………..……………………….…p 22-23

Executive Summary

This report addresses the questions how the Chinese government has been doing in protecting economic, social, and cultural rights in the past few years. The report examines the structural defects that underpin the problems in protection of these rights. And the report sheds light on the systematic failures that many Chinese human rights defenders have documented in the government’s failures to protect these human rights.

This critical examination has a special poignance at this extraordinary juncture of time. The world has just witnessed the spectacular collapse of the Chinese government’s efforts to protect the right to life and health of the people in China. The Chinese state’s zealous enforcement of its Zero-COVID control and its abrupt dismantling of this approach in December 2022, in such a haste that little public health preparedness was made for curbing the rampant spread of the viruses among the largely insufficiently vaccinated 1.4 billion people, has led to untold – and undisclosed – number of possibly preventable deaths.

Xi Jinping, the General Secretary of the Chinese Communist Party, has claimed to have provided a new model of human rights development for the world – “the China Proposal” – which sees the “right to subsistence” and the “right to development” as the “primary” of the “basic human rights”. This view of human rights quite literally states that adherence to the Chinese Communist Party (CCP) is the most important view of the “China Proposal” on human rights.

Thus, implicit in this ideology is the dismissal or even suppression of civil and political rights when done in service to protecting the CCP’s monopoly on power, while little reference or value is given to economic, social, and cultural rights jurisprudence and practice in international laws and standards. The ideology underlying these claims has driven its ferocious suppressions of free expression and ethnic religious and cultural expressions in the Xinjiang Uyghur and Tibetan regions, and most recently, the government’s large scale arrests of young women and men, who took to the streets in November 2022 to protest draconian pandemic measures that deprived people of their fundamental rights to health, to work, to movement, and to life. This currently ongoing government campaign of reprisal against the protesters, who bravely exercised their right to peaceful assembly, aims at intimidating anybody who speaks up about the government’s failures in safeguarding social and economic rights.

In this report, we provide critical analysis of the structural problems underpinning the systematic governmental failures to protect the realization of economic, social and cultural (ESC) rights for all peoples in China. Chief among these structural problems, focused on in this report, include:

The independence and impartiality of the judicial system, without interference from the Chinese government ruled by the Chinese Communist Party (“the CCP”), in adjudicating and processing legal cases involving ESC human rights.
Intimidation – by way of administrative punishment and criminal prosecution — of human rights lawyers who took the risk to represent victims of economic, social and cultural rights violations and persecuted defenders of economic, social and cultural rights, especially, in ethnic minorities regions Xinjiang and Tibet.
The promotion and protection of enabling rights and civil society space for human rights defenders (HRDs), including lawyers, to carry out their work freely or without fear. The rapid shrinking of civil society space in China, due to years’ harsh government suppression, has negatively impacted HRDs work in promoting housing rights, health rights, land rights, labor rights, women’s rights, education rights, language rights, religious freedom rights, especially of the Uyghur and Tibetan ethnic groups, LGBTQI+ rights, and many other ESC rights.
The lack of comprehensive anti-discrimination law in compliance to international human rights treaties, such as the ICSECR. This has continued to allow persistent and widespread discrimination in education, employment, access to public services, and at the workplace.
The Chinese state’s categorical deprivation of free trade union rights. This has systematically obstructed the efforts of Chinese workers, migrant laborers, labor organizers, and civil society to protect labor rights. And the government has subjected labor activists to arbitrary detention, forced disappearance, and torture.

This report’s release is timed for the UN Committee on Economic, Social and Cultural Rights (hereafter, Committee) review of the Chinese government’s implementation of its treaty obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), on February 15-16, 2023.

To whitewash its track records and evade accountability from this international scrutiny under the ICESCR, the Chinese government has made misleading, irrelevant, and utterly false claims in its report and replies to the Committee. Strong and well-documented responses from civil society to these claims are necessary and key to defend ESC rights protected under the treaty, so is setting the records straight and seeking accountability for the Chinese government’s dereliction and violation of its international treaty obligations.

This report aims at further falsifying such self-serving claims made by the Chinese government with our documentation of cases and the critical analysis we provide of the trends and situations on the ground. Such government claims that we aim to refute include, for instance, that “discrimination is prohibited” and “China implements gender equality;” that all “ethnic groups have the freedom to use and develop their own spoken and written languages;” that the Chines courts operate “independently” and the country’s legislative body, the National People’s Congress, ensures the “implementation of legal provisions on citizens’ basic rights;” and that there is “no so‑called intimidation of human rights lawyers,” etc.

The Chinese Communist Party has been the only arbitrator and enforcer of who could operate legally and who could operate for any causes that the CCP wishes to discredit or promote. The Chinese state, meanwhile, has taken steps to limit the ability of legal researchers to empirically review criminal verdicts in order to analyze any trends, which might help with deciphering any such implicit “guidelines.” In 2021, it was widely reported that the government had removed many “sensitive” cases from China Judgements Online, a government website that had at one point hoped to publicly and transparently store almost all of the verdicts issued by Chinese courts and operate on “the principle of complete openness.”

This, unfortunately, did not come as a surprise. The CCP has tightened its control over ideology on “human rights” and has radically redefined the concept as a result. The General Secretary of the Chinese Communist Party, Xi Jinping, has urged Party members to “promote the correct human rights view.” This “view”, also labelled the “Contemporary Chinese Human Rights View,” has been authoritatively expounded upon in the People’s Daily, the CCP-controlled state media. It does not make any reference to implementation of China’s human rights treaty obligations. Instead, it makes “maintaining the Communist Party leadership” as its core priority.

1. Lack of Independence and Impartiality of the Judiciary

The Chinese government has claimed that“the [Chinese] Constitution stipulates that people’s courts and people’s procuratorates exercise judicial power independently in accordance with the law” in its response to questions from Committee on Economic Social and Cultural Rights.^[1]

But this claim is utterly misleading. By deliberate design, the judiciary in China remains neither independent nor impartial, and the CCP, rather than taking any concrete measures to guarantee judicial independence, has further entrenched its position over the legal system.

Since 2014, the CCP has taken steps to ensure its controls over the judiciary and has explicitly signaled its hostility towards the concept of “judicial independence” on numerous occasions. For example, in October 2014, the CCP Central Committee held its Fourth Plenum to discuss its vision of “ruling the country according to the law” and issued a Decision addressing some major questions on governing the country according to law, which served as a blueprint for China’s legal, judicial, and prosecutorial bodies to enact changes that, in fact, have further undermined the rule of law in China. Most importantly, the Decision rejected the concept of an impartial or independent force within China’s legal system, and it instead re-emphasized the CCP’s supreme leadership over and above any law, legal or judicial processes.

In 2017, then-President of the Supreme People’s Court Zhou Qiang rejected the principle of judicial independence in a speech, and similar sentiments have become commonplace among senior Party leaders. The Chinese leaders’ attack on constitutionalism, including judicial independence, was perhaps best showcased in an internal CCP document that was leaked to the press, known as “Document Number 9.” In the classified document, which was circulated widely among CCP elites, “constitutional democracy,” “independent judiciaries,” and “universal values,” a synonym for human rights and democracy, were singled out as “false ideological trends” to be rejected.

The Chinese government has prosecuted Chinese citizens who advocated for constitutional governance and rule of law, including judicial independence. A few notable cases since 2014 illustrate this perverse yet increasingly common practice:

(a) The government detained Yang Maodong (pen name Guo Feixiong) on August 8, 2013 and sentenced him to six years in prison on November 27, 2015. Though the court convicted him of the charges of “gathering a crowd to disrupt order of a public place” and “picking quarrels and provoking troubles,” the “evidence” used against him included organizing a rally in front of the newspaper Southern Weekend, where the editorial team was being purged by newly appointed Communist Party censors after it had attempted to run an editorial in favor of “Western-style” constitutionalism, implying a separation of powers. The government’s crackdown on a newspaper once known for its investigative journalism and edgy opinion proved to be an important milestone in the first year of Xi Jinping’s reign.

(Detained dissident intellectual Yang Maodong promoted constitutionalism)

Authorities detained Mr. Yang again in December 2021, and the government prosecutors indicted him by citing his website where he discussed constitutionalism as the main “evidence” for the charge against him of “inciting subversion of state power.” Yang Maodong has been the subject of eight urgent appeals by UN experts over the years.

(b) The government detained prominent legal advocates Ding Jiaxi and Xu Zhiyong on December 26, 2019 and February 15, 2020, respectively, after they attended a private gathering of civil society advocates in the coastal city of Xiamen in December of 2019. They were then held in prolonged incommunicado detention, which the UN Working Group on Arbitrary Detention found to be “arbitrary.”

(Detained lawyer Ding Jiaxi and legal advocate Xu Zhiyong promoted rule of law reform)

In August 2021, Ding Jiaxi and Xu Zhiyong were indicted. The prosecution’s case against Ding Jiaxi and Xu Zhiyong demonstrated how the government has criminalized freedom of speech, freedom of association, and peaceful advocacy for an independent and impartial legal system. Specifically, the main points raised by the prosecution related to Ding and Xu’s involvement with the “New Citizens Movement,” which had attempted to popularize a new form of civic engagement, encouraging citizens to build community and take practical steps to address issues like educational disparities related to hukou discrimination. The government accused the two of pushing for a “transition to constitutionalism.” Xu and Ding were put on trial in secret on June 22, 2022 and June 24, 2022, respectively. As of January 15, 2023, no verdict had issued. Both Ding Jiaxi and Xu Zhiyong remain in detention.

One very basic precondition for any concrete steps that the Chinese government must take toward even a resemblance of judicial independence is to immediately release all detainees or prisoners who advocated for judicial independence and rule of law reforms and cease its persecution of rule of law reform advocates and lawyers.

At the very least, a credible assessment of the Chinese government’s behavior honoring its treaty obligations must insist that the Chinese authorities take all necessary legislative and administrative measures to guarantee the full independence and impartiality of the judiciary.

2. Intimidation of Lawyers Representing Victims of ESC Rights Violations or Defenders of ESC Rights

The Chinese government has also claimed that“there is no so-called ‘intimidation’ [of lawyers and law firms]” in addressing questions from the UN ICSECR Committee.

What we have documented shows that the Chinese government launched an unpresented assault on China’s human rights lawyers in 2015 and has forced at least 46 lawyers out of legal practice in the years since – largely in retaliation against their legal representation of victims of economic, social, and cultural rights violations.

Starting on July 9, 2015, the Chinese government launched an unprecedented nationwide crackdown on human rights lawyers, which has infamously been dubbed the “709 Crackdown”. In the next few months, police interrogated and detained over 300 lawyers and paralegal assistants and raided three law firms. Dozens of lawyers and legal assistants and activists were detained, and 15 were eventually convicted. These lawyers and law firms were involved in defending criminally prosecuted human rights defenders of ESC rights and defenders of the cultural rights of ethnic minorities.

Since 2015, the government has continued to intimidate lawyers and law firms who take up cases involving violations of ESC rights. According to research compiled by CHRD:

20 human rights lawyers had their law licenses cancelled;
4 human rights lawyers were unable to renew their law licenses;
4 human rights lawyers did not pass the “political appraisal” needed to obtain a law license;
18 human rights lawyers were forced to leave their law firms, often due to official pressure on the law firm, and then were unable to find another law firm willing to hire them due to their previous history of taking on cases that involved human rights abuses.

In total, the Chinese government has, without any legitimate basis, forced at least 46 lawyers out of law practice since 2015. Although this may seem to be a relatively small number in relation to the size of China’s legal community and general population, it is important to stress that due to the government’s tight control of the legal profession, there have been only a dwindling small number of lawyers willing to take on politically “sensitive cases,” including cases involving human rights, including ESC rights.

Among the preciously small number of lawyers with great courage, those who have suffered from government reprisals and lost their licenses to practice law include:

Liu Zhengqing had his law license revoked on December 25, 2018. Liu was accused of using words that endangered national security and maliciously slandered others in the defense of a Falun Gong religious practitioner and in the defense of Zhang Haitao, an ethnic Han man who had expressed sympathy online for Uyghurs facing human rights violations and who was subsequently sentenced to 19 years in prison. Liu had also been accused of having breached rules in a detention center where his client Huang Qi, a defender of human rights including ESC rights, was held.

(Imprisoned Huang Qi, a defender of human rights including ESC rights)

Chang Weiping had his law license cancelled on January 13, 2020. Chang had previously taken on pioneering cases of gender discrimination, such as that of Gao Xiao, a female chef who won a lawsuit against a restaurant who would not hire her after restricting their potential applicants to males only.

(Detained lawyer Chang Weiping had taken on pioneering cases of gender discrimination.)

Lin Qilei had his law license revoked by the Beijing Municipal Bureau of Justice in 2021. Lin had represented Tibetans, members of the “Hong Kong 12,” activists who were intercepted at sea by China’s Coast Guard while trying to escape from Hong Kong and who were subsequently detained in mainland China. Lin had also defended human rights and democracy activists, like the aforementioned Guo Feixiong and Qin Yongmin, who was the founder and leader of China Human Rights Watch and used social media to advocate for the rights of victims of housing, land, and health human rights violations.

(Imprisoned defender Qin Yongmin had advocate for the rights of victims of housing, land, and health rights violations)

In addition,the Chinese government has adopted regulatory measures to restrict lawyers from doing their job in representing victims of ESC rights violations or defending persecuted defenders of ESC rights.

In 2016, the Ministry of Justice issued the “Administrative Measure for Law Firms,” which systematically undermined law firms’ independence while institutionalizing Chinese authorities’ own mechanisms of control. The Measures made the Party’s presence and leadership role in law firms’ decision-making mandatory. Article 4 stipulates that law firms must “strengthen Party-building,” “establish Party organizations,” “support Party activities,” and “perfect Party organs’ participation in the strategic decision-making of law firms.” Article 3 requires law firms to “support the leadership of the Chinese Communist Party.”

On October 15, 2021, the government-run All-China Lawyers Association issued rules titled “The All-China Lawyers Association Rules on Prohibiting the Hyping of Cases in Violation of Rules,” which restrict many activities that lawyers engage in order to draw public attention to police or judicial officials’ misconduct involved in mishandling the cases of their clients or abusing their legal rights.

The Chinese government could not possibly build an independent judiciary unless it stops interfering in the independence of lawyers and reinstates the licenses of lawyers, which were revoked in retaliation against the lawyers for representing victims of ESC rights violations or defenders of ESC rights.

3. Restrictive and Intimidating Environment for ESC Rights Defenders

Since 2014, the Chinese government has done the opposite of providing an enabling environment for human rights defenders to advocate and promote economic, social and cultural rights, particularly for ethnic minority groups, migrants and workers, as the Committee has urged. In fact, today’s environment in China for human rights defenders has become much more restrictive than the environment before President Xi Jinping came to power in 2013. The government under Xi’s leadership has practically closed off the civil society space and carried out a series of sweeping campaigns to intimidate and punish labor organizers, housing/land rights activists, women and LGBTQ rights advocates, and other defenders of ESC rights such as ethnic minority language and religious freedom rights. In this environment of hyper censorship, citizen journalists who used the Internet to disseminate information related to human rights including ESC rights, and civil society organizations that used social media to report news and publicize findings of investigations, have been subjected to severe reprisals and criminal prosecution,

To illustrate this deteriorating and harsh environment for all human rights defenders including those who focused on ESC rights, we have drawn attention to the following cases of detained or jailed or forcibly disappeared ESC rights defenders, which we have documented in the past few years:

Zhou Weilin, a labor rights activist and citizen journalist, who regularly reported on labor issues and demanded protection of workers with disabilities, is currently serving a three-and-a-half year sentence for “picking quarrels and provoking trouble.” Zhou was himself a worker with a disability due to a workplace injury.

(Labor rights defender Zhou Weilin is serving a 3-year and 6-month sentence in jail)

Chen Guojiang, a labor organizer and delivery worker, was detained in February 2021 in Beijing. Chen, a popular organizer on social media, was outspoken about the precarious working conditions of frontline delivery workers in Chinese cities and had called for delivery workers to boycott companies that allegedly withheld bonus pay for workers who could not meet high demands. Chen was subsequently detained on the charge of “picking quarrels and provoking trouble.” On January 3, 2022, Chen was seen in a video leaving prison.

(Delivery workers organizer Chen Guojiang was detained in 2021)

Li Yufeng, a housing rights defender, is serving a 4-year sentence on the charge of “picking quarrels and provoking trouble.” Her sentence in 2017 was also connected to her longstanding petitioning as a victim of a forced eviction and her solidarity with other housing rights activists.

(Housing right defender Li Yufeng is serving a 4-year sentence in jail)

Chen Jianfang, a land and housing rights defender, was sentenced to three years on the charge of “inciting subversion of state power” in 2021 for her role in fighting forced eviction and providing support to other housing/land rights activists.

(Land and housing rights defender Chen Jianfang is serving a 3-year sentence in jail)

Zhang Zhan, a citizen journalist who reported on the early outbreak of COVID-19 from Wuhan, urging the government to protect health rights, is serving a 4-year prison sentence with life-threatening health conditions. She was sentenced in 2020 on the charge of “picking quarrels and provoking trouble.”

(Citizen journalist Zhang Zhan, who reported COVID-19 outbreak, is serving a 4-year sentence in jail)

Fang Bin, a citizen journalist who reported from Wuhan and posted videos about the COVID outbreak, had gone missing since being detained by police in early 2020. In November 2021, however, a report emerged indicating he might be in a detention center awaiting trial.

(Citizen journalist Fang Bin, who reported COVID-19 outbreak, has been forced into disappearance, likely under criminal detention)

He Fangmei, a health rights defender, was forcibly disappeared for nearly two years. She went missing after staging a protest in front of China’s National Health Commission in Beijing as China started to launch its COVID-19 vaccination drive in October 2020. He Fangmei went on trial in secret sometime during the spring of 2022, and the details are unclear. During the trial, although He Fangmei has difficulty hearing due to a disability and needs people to speak loudly or she must use lip reading to understand, the court would not provide her with written documents and only would allow her to listen to the trial. During the trial, she dismissed her government appointed lawyer and submitted 50 pages of her own written defense statement.

(Health rights advocate He Fangmei has been subjected to forced disappearance and detention)

Wang Jianbing was taken away by authorities in September 2021 in Guangzhou. Wang is an activist who worked to help workers suffering from the lung disease pneumoconiosis and other occupational illnesses. An arrest notice was sent to Wang’s family in October 2021 saying he was arrested on the charge of “inciting subversion of state power.”

(Labor rights activist Wang Jianbing has been in pre-trial detention since 2021)

Huang Xueqin was detained by authorities in September 2021 in Guangzhou along with Wang Jianbing. Huang, a former journalist and prominent feminist, was one of the leaders of China’s #MeToo movement. She is facing the charge of “inciting subversion of state power.”

(Journalist, women’s rights activist Huang Xueqin has been in pre-trial detention since 2021)

Huang Qi, (mentioned above, para. 13) a citizen journalist who had run a grassroots group 64 Tianwang, dedicated to publicizing human rights abuses, including those involving housing, land, health, education rights, remains in prison as of mid-January 2023. In 2019, Chinese authorities sentenced Huang to 12 years in prison on the charge of intentionally leaking state secrets” and “illegally providing state secrets to foreign entities.”

Liu Feiyue, who had founded the website Civil Rights and Livelihood Watch, which focused on human rights news stories on marginalized social groups – victims of land/housing rights and health rights violations and persecuted citizens who seek redress and justice. Mr. Liu was released upon completing a five-year term in November 2021.

(Defender Liu Feiyue, who focused on reporting on ESC rights issues, served 5 years in prison)

Cheng Yuan, Liu Yongze and Wu Gejianxiong, staff members of the NGO Changsha Funeng, were detained in 2019 and sentenced in a secret trial to five years, two years, and three years imprisonment, respectively. Changsha Funeng sought to prevent discrimination and strengthen protections for individuals living with disabilities and with HIV/AIDS and other communicable diseases. Liu and Wu were released after serving their full terms.

(Jailed activists Cheng Yuan, Liu Yongze, and Wu Gejianxiong, who campaigned against discrimination against persons with certain health conditions, disabilities, women, and LGBTQs)

Li Qiaochu, a labor rights activist who had participated in campaigns for workers’ union rights and migrant laborers’ rights, and a leading voice in China’s #MeToo movement, was taken away from her Beijing home by police in February 2021. The direct cause of her detention appeared to be an act of state retaliation against her efforts to expose incidents of torture inflicted upon Ding Jiaxi and Xu Zhiyong, mentioned above (para. 8). She was eventually charged with “inciting subversion of state power.”

(Labor rights and women’s rights activist Li Qiaochu has been under pre-trial detention since early 2021)

In January 2019, authorities targeted citizen journalist activists trying to draw attention to labor rights abuses. Three activists, Ke Chengbing, Wei Zhili, and Yang Zhengjun, who ran an online independent media platform called “iLabour” were placed in “residential surveillance at a designated location,” a form of incommunicado detention. The detentions were in retaliation for their efforts to support migrant workers sickened with pneumoconiosis, which they contracted while working in construction in Shenzhen for the past two decades.

(Three citizen reporters of labor rights issues, Ke Chengbing, Wei Zhili, and Yang Zhengjun, who were detained in 2019)

Gheyratjan Osman, a professor of Uyghur language and literature at Xinjiang University, was taken away in 2018 and sentenced to 10 years for “separatism,” although the legal details of his case remain unclear. Gheyratjan Osman was apparently jailed on the grounds that he “rejected national culture,” attended a seminar on Turkic studies in Turkey in 2008 and gave “excessive” praise of Uyghur culture in his writings, which “inculcated separatist ideology in generations of Uyghur students.” Gheyratjan Osman published more than 30 books and 200 scholarly articles on the Uyghur language, literature, and folklore.

(Gheyratjan Osman, a professor of Uyghur language and literature, is serving a 10-year sentence in jail)

Qeyum Muhammad, an actor and associate professor at the Xinjiang Arts Institute, was taken away in 2019 according to staff from the school. The staff did not know the reason he was taken away or where he was being held. According to Radio Free Asia, Qeyum Muhammad had taught young Uyghur performers and comedians, and thus contributed to passing on Uyghur culture to younger generations.

(Qeyum Muhammad, a professor of Uyghur arts and culture, has been detained)

Gō Sherab Gyatso, an eminent Tibetan Buddhist scholar and educator, was sentenced to 10 years on the charge of “inciting separatism,” the Tibetan Centre for Human Rights and Democracy (TCHRD) learned in 2021. He was originally detained in October 2020 and was a victim of enforced disappearance for five months.

(Gō Sherab Gyatso, a Tibetan Buddhist scholar and educator, is serving a 10-year sentence in jail)

The Chinese government cannot protect ESC rights in any meaningful way without officially recognizing the vital role of civil society organizations and human rights defenders in protecting ESC rights and creating a safe and enabling environment for their work. As a first step, the government must immediately end its campaign of reprisals against individuals and organizations promoting ESC rights by subjecting them to criminal prosecution and release all detained or imprisoned human rights defenders.

4. Ineffective Laws for Curbing Widespread Discrimination

In China, many forms of discrimination have persisted, including discrimination against rural migrants, people with disabilities, women and LGBTQI+ individuals, in education, employment, access to public services, and the workplace.

Discrimination against rural migrants. China’s hukou (household registration) system continues to perpetuate discrimination based on social origin or a person’s “urban” or “rural” residential registration status.

During the COVID-19 pandemic, at times of heightened COVID outbreaks in cities or provinces, workers, particularly internal migrants who left their registered residential villages or small towns, were forced to work in “closed-loop” systems, where, under the pretext of minimizing the spread of COVID-19 infection, workers were not allowed to leave their workplaces and dormitory areas. Due to travel restrictions of residents under the pandemic measures, the cities where the factories are located would not allow the migrants to stay if they had left the factories’ grounds. They were forced to live, work, eat, and sleep in the factories.

Most notably, in November 2022, production at Foxconn’s largest factory in Henan was interrupted by migrant workers fleeing on foot to return to their villages from the restrictive lockdowns after an outbreak of COVID occurred at the factory. This Foxconn factory, which usually has 200,000 workers who make and assemble parts for Apple, had instituted a “closed-loop system” to prevent COVID outbreaks. This system prevents workers from leaving the factory and the dormitory compound. Workers related on social media how they had to jump over metal gates to escape the lockdown, revealing conditions that raise concerns about possible forced labor and labor rights violations inside this Foxconn facility. There was also a protest at another Apple supplier in May of 2022 over low wages and basic living conditions in a closed-loop production arrangement.

Discrimination against persons with disabilities. As CHRD highlighted in a report to the UN Committee on the Rights of Persons with Disabilities (CRPD) in June 2022, while some improvements have been made for persons with disabilities in recent years, the crucial input of persons with disabilities in contributing to positive change has been sorely lacking.

The government has tightened the space for civil society by restricting the rights to freedom of association and freedom of expression in general, including the disability rights community. This tightening has narrowed the space for advocacy. Two organizations that had worked on advocacy for persons with disabilities (Changsha Funeng and Yirenping) were shut down and other writers and citizen journalists, who had reported on disability rights were detained. And detained or imprisoned defenders of disabilities rights had experienced discrimination, violence, and particular punishments that exploited their status as persons with disabilities, such as taking away wheelchairs as a punishment.

Discrimination against LGBTQI+ individuals. In China, members of the LGBT+ community continue to face restrictions on their equal rights, and advocacy for equal rights for persons in the LGBTQI+ community has been further constrained. There is currently no right to same sex marriage in China. Anti-discrimination provisions in China’s labor laws do not cover LGBTQI+ individuals. Adoption of children is limited to heterosexual couples.

Meanwhile, the state has limited the space for advocating for the rights of the LGBTQI+ community, and even for engaging in non-political social solidarity. On July 6, 2021, nearly 20 WeChat accounts of university students in LGBTQI+ and gender study groups were suddenly deleted. In November 2021, LGBTQ Rights Advocacy China, an NGO with operations nationwide, was forced to shut down due to government pressure.

Discrimination against women. Sexual harassment and violence against women remain widespread in China, despite taking some legislative steps forward over the past 15 years, such as making sexual harassment nominally unlawful. An academic study conducted in 2021 reviewed 100 legal cases involving sexual harassment and found that victims of sexual harassment were unable to gain significant compensation or redress through litigation, although accused perpetrators were sometimes punished or fired from their jobs.

The experience of Zhou Xiaoxuan (also known as Xianzi), whose high-profile #MeToo case brought to public awareness the entrenched problem of sexual harassment in the workplace, illuminates the problem. Zhou, then an intern, in 2018 accused a former state-run TV presenter of groping and forcibly kissing her in 2014. However, she lost her court case in 2021 due to “insufficient” evidence. Zhou said the judges did not allow her to present supporting evidence, such as video footage and police notes taken from her parents. Discussion of the landmark case was widely censored on Weibo, China’s Twitter-like platform. She also lost her appeal in 2022 because of “insufficient” evidence.

In March 2015, on the eve of International Women’s Day. Chinese police in Beijing, Guangzhou, and Hangzhou rounded up at least 10 women’s rights activists, who were planning a public event to draw attention to sexual harassment on public transit. Five of them—Wu Rongrong, Li Tingting, Zheng Churan, Wei Tingting, and Wang Man —were later criminally detained on the charge of “picking quarrels and provoking troubles.” The “Feminist Five,” as they came to be known, were in the forefront of fighting workplace discrimination, domestic violence, and advocating for gender equality in higher education and LGBTQI+ rights. They were eventually released but subjected to surveillance and restrictions afterwards.

The Chinese government must enact comprehensive anti-discrimination legislation that protects the equal rights of rural residents-migrant laborers, people with disabilities, LGBTQI+ individuals, women, and ethnic minorities. The government must take concrete measures to ensure that laws and regulations with respect to sexual harassment and domestic violence are effectively implemented and stop intimidation and persecution of human rights defenders who combat all forms of discrimination.

5. Systematic Deprivation of Free Trade Union Rights

The All-China Federation of Trade Unions (ACFTU) remains the only government body running labor affairs in the country. ACFTU branch offices in the factories are controlled by the local governments and Communist Party committees at the factories. They function as part of the factory management and they do not represent the interests of workers, nor protect their rights. China Labour Bulletin, a Hong Kong-based labor rights NGO, analyzed 102 strikes and other workers disputes across China in 2022 with the aim of assessing the ACFTU’s role and found that local ACFTU branch employees were only aware of the disputes in 40% of cases, and only positively intervened for workers in 28 of the 102 cases.

Starting from roughly 2015, the government tightened its control over labor groups and targeted labor activists and organizers of free trade union or collective bargaining. For example, in December 2015, police detained labor organizer Zeng Feiyang during a series of coordinated raids targeting labor organizers in Guangdong Province. Zeng was the director at the Panyu Migrant Workers Documentation Service Center in Guangzhou, an organization that had helped pioneer the practice of worker-led collective bargaining, and helped workers receive an estimated 200 million yuan in wages in arrears and social insurance benefits from 2011 to 2015. Two of Zeng’s colleagues – Zhu Xiaomei, and Tang Huanxing – were also taken away and sentenced to jail.

(Labor organizer Zeng Feiyang was detained in 2015)

In 2018, when dozens of young university students joined labor organizers and workers’ strike in southern China, government officials arbitrarily detained many of the organizers and the students, forced some of them into disappearance, to punish them and coerce them into silence. Among them was student leader Yue Xin. She was apprehended by police on August 24, 2018 and then disappeared. Police raided an apartment complex in Shenzhen and seized her and about 50 other students who had come to Guangdong to support Jasic Technology factory workers dismissed in late July for trying to unionize. The students had organized themselves under the name Jasic Workers Solidarity Support Group. By late September, at least 14 students and other activists remained in custody.

(College student Yue Xin, who organized to support workers’ union rights, was detained by police in 2018)

Free and independent trade unions are fundamental for protecting workers’ interest and rights. Without unions that work for labor, not for the government, workers cannot freely exercise their bargaining rights and the right to strike for labor protection. The government must recognize internationally protected free trade union rights by taking the first step to end its persecution of labor organizers immediately.

6. Obstructing Human Rights Due Diligence

The Chinese government is misleading about the UN Guiding Principles on Business and Human Rights (UNGPs) in its response to the CESCR Committee’s question about human rights due diligence. The government claims that “The Guidelines for the Compliance Management of Enterprises’ Overseas Operations have been issued and implemented, clarifying the basic norms and specific requirements for the operations of enterprises overseas, and giving full consideration to requirements in such areas as protection of labour rights as well as data and privacy.”^[2]

However, the government’s Guidelines for the Compliance Management of Enterprises’ Overseas Operations do not specifically reference the UN Guiding Principles on Business and Human Rights (UNGPs), nor do they lay out a human rights due diligence process. At times, the Chinese government has attempted to give the impression at the UN that business and human rights due diligence is required by Chinese law, such as at the last UPR session in 2018.To date, however, no Chinese laws or regulations place mandatory human rights due diligence requirements on Chinese companies.

This lack of genuine concern for the UNGPs and human rights due diligence in the regulatory framework governing Chinese enterprises’ overseas operations is mirrored domestically as well. The Chinese government has made it increasingly difficult for anyone to conduct human rights due diligence in China or gain insight from any watchdog civil society groups and HRDs on the ground, due to the overhaul of civil society organizations and persecution of human rights defenders.

For example, in May 2017, the Chinese government criminally detained three undercover investigators who were looking into labor conditions at a factory that supplied shoes for Ivanka Trump’s shoe line. The labor investigators were connected with China Labor Watch, a US-based NGO, which had frequently conducted supply chain investigations in China with the purpose of putting pressure on brands to improve their compliance with labor laws and human rights.

The Chinese government has denied allegations of forced labor in the Xinjiang Uyghur Autonomous Region (XUAR), while at the same time, the government has made it nearly impossible for businesses to engage in human rights due diligence or for any outside actors to assess such claims. Shenzhen Verite, a firm affiliated with the US non-profit Verite that is involved in labor compliance issues for businesses, conducted a non-public evaluation of the issue of forced labor in Xinjiang. Authorities raided their office in April 2021, detained some staff members, and closed down the office.

According to a non-profit organization that works with businesses in improving their human rights and environmental protection performance, whose representative spoke to CHRD in 2020 (who wishes to remain anonymous), the group would not initiate work related to Xinjiang due to the perceived risk level and known examples of intimidation and harassment in the industry. CHRD also has information of another instance of the detention of a foreign national conducting due diligence in the XUAR. In 2020, The Wall Street Journal reported that five independent auditing firms decided that they could no longer operate in the XUAR, in part due to the heightened risk to employees engaging in due diligence.

China must enact legislation to require Chinese companies to engage in human rights due diligence according to the UNGPs. The government must ensure that businesses, auditors, and multistakeholder entities engaging in human rights due diligence in China do not face retaliation.

Conclusion

This report has laid bare that, since the UN Committee’s 2014 review of China’s implementation of the ICESCR, human rights defenders including those who devoted to promoting economic, social, cultural human rights, including lawyers, in China have faced drastically deteriorating conditions for doing their work. China’s judicial system has become further consolidated into a set of tools to strengthen its one-party ruled authoritarian state, wielded by the government to silence critics. The part-state then suppress efforts to hold government officials and CCP leaders to account for their abuses of economic, social and cultural human rights. By dismantling any systemic guardrails or its failures to establish them, the Chinese government has systematically deprived its citizens of any safe and fair avenues to defend their rights under the ICESCR.

To fulfill its treaty obligations under international law to protect economic, social and cultural rights, the Chinese government must take all necessary legislative and administrative measures to guarantee the full independence and impartiality of the judiciary. And the first step in the right direction is to immediately release all detainees or prisoners who advocated for judicial independence and rule of law reforms.

Any resemblance to an independent judiciary in China would require the government to stop interfering in the independence of lawyers and reinstate the licenses of lawyers, which were revoked in retaliation against them for representing victims of human rights violations or defenders of human rights.

No government could possibly guarantee the protection of human rights, including ESC rights, effectively without fully recognizing the vital role of civil society organizations and human rights defenders in protecting human rights. The Chinese government must create and protect a safe and enabling environment for human rights defenders to play such roles. As a first step in this right direction, the Chinese government must immediately end its campaign of reprisals against human rights defenders, stop subjecting them to criminal prosecution, arbitrary detention, enforced disappearance, and torture and release all of them from detention or imprisonment, especially in the Uyghur and Tibetan regions.

The lack of any comprehensive anti-discrimination legislation in China has contributed to the lack of effective protection of equal enjoyment of any ESC rights for rural residents-migrant laborers, people with disabilities, LGBTQI+ individuals, women, and ethnic minorities in the Uyghur and Tibetan regions. The government must take concrete measures to ensure that laws and regulations with respect to sexual harassment and domestic violence can be effectively implemented. And it must stop intimidating and persecuting human rights defenders on the forefront of combating all forms of discrimination.

The key to any effective protection of labor rights is to protect free and independent trade unions of, for, and by the workers themselves. Without unions that work for labor, organized by the workers, freely operating without government interference and intimidation, workers in China cannot effectively exercise their bargaining rights and the right to strike for labor protection. The Chinese government must recognize internationally protected free trade union rights under the International Covenant on Economic, Social and Cultural Rights. It must end its persecution of labor organizers and labor rights activists immediately.

As Chinese companies, often state-run, operate beyond its borders to engage in trade and investment in many developing countries around the world, the Chinese government must also fulfill its treaty obligations to protect economic, social and cultural human rights of the people in these countries, as well as in China. China must enact legislation to require Chinese companies to engage in human rights due diligence according to the UNGPs domestically and in countries where they do trade and business. The Chinese government must ensure that businesses, auditors, and multistakeholder entities engaging in human rights due diligence in China do not face retaliation.

[1] Replies of China to the list of issues in relation to its third periodic report, May 11, 2022, E/C.12/CHN/RQ/3, para. 2.

[2] Replies of China to the list of issues in relation to its third periodic report, May 11, 2022, E/C.12/CHN/RQ/3, para. 5