1. Greg Austin, Cyber Policy in China
2. Jeroen de Kloet and Anthony Y. H. Fung, Youth Cultures in China
3. Steven M. Goldstein, China and Taiwan
4. David S. G. Goodman, Class in Contemporary China
5. Stuart Harris, China's Foreign Policy
6. William R. Jankowiak and Robert L. Moore, Family Life in China
7. Elaine Jeffreys with Haiqing Yu, Sex in China
8. Michael Keane, Creative Industries in China
9. Joe C. B. Leung and Yuebin Xu, China's Social Welfare
10. Hongmei Li, Advertising and Consumer Culture in China
11. Orna Naftali, Children in China
12. Eva Pils, Human Rights in China
13. Pitman B. Potter, China's Legal System
14. Pun Ngai, Migrant Labor in China
15. Xuefei Ren, Urban China
16. Nancy E. Riley, Population in China
17. Judith Shapiro, China's Environmental Challenges 2nd edition
18. Alvin Y. So and Yin-wah Chu, The Global Rise of China
19. Teresa Wright, Party and State in Post-Mao China
20. Jie Yang, Mental Health in China
21. You Ji, China's Military Transformation
22. LiAnne Yu, Consumption in China
23. Xiaowei Zang, Ethnicity in China

Copyright © Eva Pils 2018

The right of Eva Pils to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.

First published in 2018 by Polity Press

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I would like to thank the two External Readers for their most helpful and encouraging comments on the draft manuscript, Helin Laufer Gencaga for her excellent research assistance, and Jonathan Skerrett and Neil de Cort at Polity for the excellent work on the book's production. I am greatly indebted to the Law School at King's College London for giving me an academic home to work from and for its generous support for my fieldwork research through the 2015–16 PC Woo Fellowship. I am also deeply grateful for conversations about the issues discussed in this book while I was working on it, with many colleagues and friends in academia, the media, and human rights NGOs. Among them are – with apologies for any negligent omissions – BjÖrn Ahl, Stéphanie Balme, Jean-Philippe Béja, Jérémie Béja, Mayling Birney, Michel Bonnin, Alain Bouc, Chris Buckley, Albert Chen, Chen Weitseng, Chen Yongxi, Alvin Cheung, Jerry Cohen, Elena Consiglio, Rogier Creemers, Jeremy Daum, Jacques DeLisle, Matthew Erie, Harriet Evans, Octavio Ferraz, Corinna-Barbara Francis, Fu Hualing, Guo Yicong, Stephen Guest, Terry Halliday, Kathrin Hamenstädt, He Weifang, Jane Hendersen, Marie Holzmann, Jiang Jue, Perry Keller, Tom Kellogg, Katrin Kinzelbach, Ben Liebman, Sida Liu, Darius Longarino, Elizabeth Lynch, Nicola Macbean, Aruna Nair, Elisa Nesossi, Will Partlett, Tom Phillips, Tim Pringle, Kathryn Rand, Sophie Richardson, Stein Ringen, Joshua Rosenzweig, Flora Sapio, Ewan Smith, Marina Svensson, John Tasioulas, Teng Biao, Frank Upham, Sebastian Veg, Sophia Woodman, Zeng Jinyan, and Zhang Yihong. Some of those whose contributions have been particularly important unfortunately cannot be named, including the anonymized interlocutors quoted here. I am deeply grateful to them, too. All errors are of course my own.

In 1991, the Chinese government published a White Book on Human Rights which declared its commitment to the ‘lofty goal’ of human rights, as well as support for the United Nation's treaty framework.¹ Two years after its violent suppression of the June Fourth movement for democracy, and at a time of major political transitions around the world, China found itself under some pressure to overcome its global image as a dictatorship prepared to murder its young. It needed to reconnect to the international community.² This community, in turn, expected it to change and, eventually, conform to a liberal model. China was already then a signatory to some United Nations (UN) human rights treaties and was to sign (and in most cases ratify) several more in years to come.

As of today, China takes an active part in some of the United Nations based mechanisms, notably the Universal Periodic Review (UPR) process.³ It has written ‘respect and protection of human rights’ into its Constitution, and produced two five-year Human Rights Action Plans (the most recent one for 2016–20).⁴ It also argues that it has greatly furthered human rights goals by ‘lifting millions out of poverty’⁵ and that, anyway, there is no universal idea of human rights.⁶

These claims have met with criticism from many quarters. The catalogues of Chinese human rights violations are long. They include torture and other abuses in the criminal justice system, the lack of media and internet freedom; land rights, labour rights, ‘birth planning’ policies; and various kinds of discrimination, including against the physically or mentally disabled, the persecution of dissidents, communities of faith and minorities.⁷ The news media, reports by non-governmental organizations' (NGO), reports generated by UN bodies and processes and foreign governments' commentary on human rights in China⁸ testify to a strong interest in how and why human rights in China are violated, and how they can be defended and protected. Their comments on human rights issues in China are complemented by scholars, domestic and international, journalists, artists, and so on; and these comments often draw attention to the bleak and dire.⁹

Yet, even the bleakest comments tend to be framed in a language of reform, of potential, expected, and on the whole likely, albeit sometimes obstructed or thwarted, improvement. There has long been a widely held belief that China is – must be – on a path of slow transition towards improved rule of law.¹⁰ The magic word appeared to be ‘engagement’ – through engaging China at governmental and non-governmental levels, it would be possible to bring the relevant actors round to the ideas inspiring rule of law and human rights, thus preparing the ground for a liberal transition. Complementing and, arguably, nurturing this expectation, a large industry of governmental and academic programmes led by NGOs or government-organized NGOs (GONGOs), working with Chinese institutions to promote rule of law and civil society, sprang up.

Some versions of the ‘incremental reform’ argument went even further, asserting that Party-State leadership was in fact best suited to achieve the difficult transition towards rule of law.¹¹ The continued violation of certain human rights seemed to be a regrettable but necessary evil attendant on China's slow, incremental transformation. It required acceptance of certain domestic taboos around ‘sensitive’ human rights topics, such as the topic of persecuted ‘enemies of the People’. ‘Economic reforms first, political reforms later’, in the words of one of the Chinese scholars of the ‘Chinese model’.¹² The claim that China was undergoing a gradual, incremental reform process appeared to solve some problems of engagement, allowing transnational actors to stay clear of downright political issues,¹³ and domestic ones to stay safer. In some ways, it might be said to suit everybody.

Almost everybody. In the earlier years, the victims of human rights violations did not have much of a voice; and the more ‘sensitive’ their cases, the less they could be discussed domestically. But throughout the post-Mao reform era, and especially from the 1990s onwards, victims – or survivors – of rights violations grew more vocal. The ideas, the vocabulary, arguments and techniques of rights advocacy these programmes disseminated reached those who needed them through oblique and serendipitous channels. Networks inside and outside of China developed and overcame some of the divides induced by control and self-censorship; and gradually, they also changed how victims saw themselves, and how advocates related to them and to the system surrounding them. They started disrupting the ‘incremental reform’ narrative.

Both the paradigmatic claim that China is transitioning to better rule of law through top-down reform and human rights protection, and the arguments for authoritarian governance call for a critical assessment. This book discusses human rights in China in the light of this need. It challenges the paradigmatic, predictive expectation of transition through top-down reform as increasingly untenable. But it also argues that human rights' enduring importance and vibrancy is demonstrated by human rights advocates who challenge the system's authoritarian practices and principles.

We can only understand the bottom-up dynamic of human rights if we are not imprisoned in too narrow and authority-driven a conception of rights, and if we are sensitive to political context. In Nickel's introductory definition – helpful as a starting point – human rights are ‘norms that help to protect all people everywhere from severe political, legal, and social abuses’.¹⁴ The discussion in the following chapters will focus on a few of these rights, here considered as central nodes in a web of interconnected human rights principles – expression and thought, liberty and life, and socio-economic and anti-discrimination rights. It will engage with rules and principles that have been created to safeguard these rights through international treaties and domestic legal norms, and use the further definitions contained in these texts. But it will not claim that these or any other definitions close down disagreement over the rights they safeguard. Treaties and national constitutions have given us a shared language and some basis of consensus, of recognition-in-principle;¹⁵ but they give rise to interpretive social practices that sustain deep disagreement.¹⁶ State governments, courts and legislatures, and international bodies may get to decide about legal human rights norms; but according to the view adopted here, they too do not have a monopoly on defining what human rights are or how they ought to be understood, just by virtue of holding power or status.

Conversely, while international human rights treaties create institutional obligations the concluding state parties did not previously have, whether the people in these states have human rights does not depend on their governments' signing of treaties – rather, there is a moral argument for ‘human rights universalism’ (such as is expressed in Nickel's definition). Once a state has acknowledged obligations under human rights law, it is generally ‘not necessary to argue the moral issues from the ground up’;¹⁷ generally – but not always. As will be seen in the chapters to come, acceptance of the authority of international human rights law can turn out to be especially weak in China's authoritarian environment, and rights defenders keep having to make the argument that human rights ought to be respected.

A non-positivist, non-voluntarist approach to human rights does not mean that human rights is a hopelessly ‘subjective’ idea that cannot be defended against criticism. It means, rather, that human rights is a contested concept;¹⁸ that the argument for human rights is persuasive rather than peremptory; that ‘the authorities’ interpreting human rights, whoever they are, may get it wrong just like anyone else; and that any textual expression of human rights or constitutional principles is not conclusive of what these rights and principles mean. As discussed throughout this book, the textual basis for a human rights argument may in fact be thin or contradictory; it may consist in no more than a sentence in the Constitution, or a clause in a treaty that is routinely ignored; and it may be buried underneath language that is in tension with human rights; or made to an institution downright hostile to the very idea of rights.¹⁹ Human rights defenders' claims here discussed as part of the social practice of human rights include many instances where the defenders cannot get access to the institutions, because the Party-State will not let them, or where even when they do get access, their human rights arguments go unheard.

The chapters to follow therefore track ways in which rights defenders in contemporary Chinese society use the concepts of human rights (renquan) and rights (quanli), as well as official or establishment discourse about rights. They draw interpretively on fieldwork,²⁰ as well as a variety of textual and audio-visual resources, including legal instruments, scholarly literature, NGO reports, media reports and commentary, conversations and documentaries. They emphasize the importance of engaging with the ‘vernacular’ human rights discourse; and they are intent on understanding the political dimensions of different human rights arguments. The idea that there is a justifying connection between rights protection and the coercive actions of the state is particularly important to the argument developed here. For example, the recognition and protection of a right to be treated as a ‘human being whose dignity fundamentally matters’²¹ can be taken to be central to any justification. A human rights violation, on such an account, violates a state's duty towards its citizens in a way that upsets the state's authority, or the political obligation of citizens to obey the law; and it is connected to a right of resistance. Other accounts are less immediately concerned with human rights' political justification;²² they might, for example, focus more on the interests that human rights are central to protecting.

An examination of how relevant actors in China discuss human rights reveals a great diversity of attitudes and arguments. The authorities sometimes – for example when employing utilitarian arguments about welfare – gesture in the direction of an ‘interest’ theory of rights; but as argued in chapter 5, they do not commit to any coherent version of the interest theory. Their claim to govern in accordance with laws that protect rights, insistence that central authorities respect the law even when local authorities do not, and the wider ‘liberal transition’ argument mentioned earlier, seem to assume that human rights will become increasingly central to the justification of its power. Yet on some occasions, the authorities advocate some version of human rights particularism or relativism, or simply reject human rights. Overall, the discussion in this book shows that it is not possible to identify one coherent position taken by the Party-State; rather, the authorities employ arguments that seem convenient in the moment without recognizing any need to provide a coherent account, and without having to adopt a coherent position in the disciplining setting of a judicial process. Rights defenders, in turn, often emphasize the political dimension of human rights;²³ they engage in advocacy whose point is to demand systemic change as a political human rights requirement.²⁴ As discussed in chapter 1, they do not always do so to the exclusion of other conceptions of justice, including some that are not compatible with rights; and the positions they advocate are not always coherent. But broadly speaking, rights defenders' arguments are based on liberal ideas of every person's entitlement to protection against abuse of (public) power.

While the discussion in this book shows human rights in China to be a vibrant and important social practice, it also portrays it as a practice in the shadows of an authoritarian system, in which victims like the one depicted on the cover of this book may hide their face while seeking justice; in which some systematic rights violations cannot be discussed in the media, effectively challenged in the courts, or addressed by reform efforts in legislation and law enforcement; and in which many rights advocates live in peril. Even theoretical accounts of human rights produced by scholars in China, while they have their independent value and importance,²⁵ meet with directives and exhortations such as, for example, to produce accounts that will ‘strengthen China's international image’;²⁶ and the most important arguments and practices undermining human rights come from authoritarianism.

Authoritarian conceptions and practices of governance privilege state sovereignty and security over individual rights, and treat the universality of liberal and democratic values with relativistic scepticism. Such ideas and practices can also be found in nominally liberal-democratic systems; but it will be argued here that the Party-State has in recent years turned to more authoritarian positions, supporting law (or ‘legal governance’, fazhi) but opposing human rights, or rights liberally conceived. It is increasingly using claims of systemic superiority over liberal democracy, becoming increasingly repressive, and more often invoking Maoist legacies. For some, this has raised the question whether China today should be characterized as totalitarian or neo-totalitarian,²⁷ i.e. using labels that would more clearly bring out the incompatibility between the Chinese system and respect for human rights.²⁸

Yet, while the claim of superiority over other systems is arguably typical of totalitarian dictators,²⁹ characterizations as totalitarian would capture an intention more than the reality of the current system. The system hardly meets all of the criteria political scientists have come up with to describe totalitarian systems: it does not have a ‘state monopoly on information’ and a ‘concentration of all of the means of domination in the hand of the party and the state, so that finally the economy becomes subordinated to bureaucratic coordination and central control’, in Brzezinski's definition;³⁰ and it would be hard to describe it, with Juan Linz, as having ‘an ideology, a single mass party and other mobilizational organizations, and concentrated power in an individual and his collaborators or a small group that is not accountable to any large constituency and cannot be dislodged from power by institutionalized, peaceful means’.³¹ As its responses to public protest in some instances show, the current system in China is somewhat responsive to popular demands, and in that sense sometimes held politically accountable.³² It would also be hard to describe Chinese society as ‘atomized’ in the sense coined by the philosopher Hannah Arendt;³³ indeed, showing how Chinese civil society coordinates human rights based action is one of the aims of this book. Similar considerations could apply to the perhaps even more problematic term ‘fascism’.³⁴ Against the background of such taxonomical quandaries,³⁵ the term ‘authoritarian’ will be used here in consciously broad fashion: it is well suited to a language of gradation that seems appropriate to the present discussion, not only of China but also of the global trends toward authoritarianism.³⁶

The following chapters begin by situating human rights discourse within a plurality of competing justice traditions and discourses, and provide an initial examination of the chief counterdiscourses used to reject human rights (chapter 1). This provides the background for an outline of the place of human rights within the legal-political system, and an initial account of institutional avenues for access to justice (chapter 2). The next three chapters address the substantive rights of liberty and integrity of the person (chapter 3), freedom of thought and expression and cognate rights (chapter 4), and economic and social rights (chapter 5). A concluding chapter discusses human rights advocates, human rights defenders and wider civil society (chapter 6). Each of these chapters observes a current trend to reconceptualize and redesign the legal-political process in ways that further undermine human rights and, ultimately, law itself. Each chapter also tries to identify the peculiar and characteristic way in which China's version of authoritarianism shapes its systemic rights-violating practices. In conclusion, this development is briefly considered in the light of its wider, transnational implications, and of a global trend of ‘democratic recession’ and ‘authoritarian resurgence’.