Human Rights from Perspective of Gender Equality:
The Significance of ICCR and Its Relation with China
Liu Wenhua
Being called equality of men and women by ordinary people in China, the term gender equality is not strange to Chinese people. Since the founding of new China, this concept has continued to develop and been promoted as an important political undertaking.
However, the role of international human rights law has long been neglected in this process. It was in 1980 that China joined the U.N. human right convention system. However, the human right research in China was initiated in the late 1980s and then gradually deepened. Therefore, it is a new practice to integrate human right perspective into domestic legal research or to solve social problems. Although there may be controversy, skepticism or deficiencies in this process, I am sure that no one will deny that it’s a correct practice and very essential to promote the rule of law in China.
This article aims to review the provisions and implications concerning gender equality in International Convention on Civil and Political Rights (ICCPR), one of the U.N. charters for human rights, and discuss its potential impact on China’s efforts for gender equality by focusing on relations between China and ICCPR.
In recent years Chinese scholars have began to introduce and apply the concept of gender equality and laws into practical use, providing convincing ideological basis and theoretical support for the research on gender equality. Therefore, in this article I will make initial analysis on the relevant issues from the perspective of laws concerning gender equality.
一、 Relevant provisions of ICCPR
Human right is universal. This partly means that the subject of human right is universal. That is to say, human right is the intrinsic right of human being, which determines importance of non-discrimination principle in international human rights laws. Both ICCPR and International Covenant on Economic, Social and Cultural Rights provide in the second article of their general clause:“ Every contracting party should respect and guarantee the right of all the people within its territory and under its jurisdiction which is recognized by this covenant regardless of their race, color, sex, language, religion, political or other opinion, nationalities or social origins, properties, birth and other identities”.
The core of this clause lies in the principle of non-discrimination and equal human rights for all. It identifies the subject of rights in the convention---all the people including native people, foreigners and people without nationalities—and emphasized that no differentiate treatment according to standards including one’s sex are is allowed. It shows that the civil right and political right stipulated in the convention are concerned with the basic right of an individual therefore can be applied universally, which is a major principle of this convention. This clause employs such terms as “ other identities”, “etc” and “any differentiation”, which shows that the provisions in the convention only roughly list some of the cases hence any standard imposing unfavorable situations on an individual should be prohibited.
This clause is a subordinate or auxiliary one, which means it can be violated only when the convention is combined with other substantive provisions concerning rights. That is to say, nobody could claim that the government and other subjects have run counter to the convention merely according to the non-discrimination principle in this clause. Given that the covenant stipulates a wide range of civil and political rights, the principle of non-discrimination plays an extremely important role and serves as basic principle responsible for interpretation and application of all the substantial clauses for rights.
二、the ICCPR and China
（一） China’s process in approving ICCPR
On Octorber 5, 1998, Qin Huasun, permanant representative of China in the U.N. signed the ICCPR on behalf of China in the U.N. headquarter, which once again domonstrated China’s asparation and dertermination to promote and safeguard human right as well as its stance to participaate in international human right cooperation and accept the international standard for human right.
On Feburary 28, 2001, the 20th session of the 9th NPC standing committee ractified the Iternational Convention on Economic, Social and Cultural Rights sighed by Chinese government in Octorber 27, 1997. The issue of approving ICCPR at an apropriate time had been put on the agender by then.
Based on the importance of ICCPR in the internatonal laws on human right and the practice of Chinese government in signing and preparing to ractify the convention, many Chinese scholars have conducted wide and profound researches and discussions on the convention. Chinese government attaches great impotance to the convention and great effort have been made to combine academic activities with popularization in society. All this shows that it is time for China to ractify the convention and lays a solid foundation for its future application in China.
Significance of Human Rights Law
First, human rights law generates the legal obligations of the contracting parties
China’s process in joining the International Convention on Human Rights is in fact a process during which China explicitly accepts some international conventions as legal documents with legal restraint. However, relevant international convention can remain its legal validity in all the contracting parties without the participation of some country. As for which ones in International Convention on Human Rights belong to the international customs with general validity in all contracting parties, there isn’t a single standard. Most of the customary international laws related to human rights mentioned in the international authorities such as International Court of Justice are connected with collective rights such as prohibition of racial extinction, slavery, racial segregation and discrimination etc. In this sense, the rules in ICCPR which reflect the customary international laws will not lose their legal restraint without the participation of a country.
Secondly, legal researchers should not always focus on the legal restraint of the provisions while ignoring their moral impact. To some extent, the convention on human rights is resulted from moral responsibility and it will in turn, become the source of moral responsibility as legal documents.
The human rights law and the concept of human right have their own humanistic and moral foundations. Therefore, they produce not only general legal obligations but also humanitarian impact. The impact of the international convention on human rights on public opinions and moral appraisal in its implementation process has yield results beyond legal provisions. The easterners tend to add an internal moral obligation to the legal one. As eastern nations, China and Japan have a long tradition of valuing obligations in conventions. As early as ancient times, there were Chinese saying which says :“those who breach the agreement will be punished by God.”, “those who eat their words will not be trusted.” In the introduction of his book entitled Research on the International Convention on Economic, Social and Cultural Rights, Liu Hainian, a Chinese expert points out:“ the Chinese nation always keeps its promise. After joining this convention, Chinese government will carefully fulfill its due obligations…”. In recent years, Chinese government has highlighted the perfect combination of ruling the country by laws and by virtue, believing that the application of humanitarian laws may give luster to the ruling by virtue.
Thirdly, International Convention on Human Right is An Important Resource of Legal Culture
The international laws offer a legal consensus of international community, or common standard. If drawing upon legal experience from some other country is considered as learning advanced experience from some foreign country, referring to international law, especially International Convention on Human Right can be considered as drawing upon common fruits of civilization of the international community. Conventions of the international humanitarian law may be the consensus both reached by regional organizations at a regional level and by international organizations like the U.N. in the international conference. These conventions are also reached with the participation and influence of representatives from different countries and non-governmental organizations, showing the fine fruits produced by communications among different legal and cultural concepts, therefore they are always the minimum standards or common goals. Even if a country doesn’t join a convention, it will refer to the relevant provisions in the convention as a legal resource. For example, Jia Junling, a Chinese scholar specialized in Labor Law, has once pointed out that although China isn’t the participant of the relevant conventions, in making laws on social security, it should take the conventions and proposals of the ILO as a valuable reference.
3. the Impact of Provisions in ICCPR in China
The rectification of the convention will finally form a adequate system of international laws and rules on human rights, especially a comprehensive one concerning gender equality, which will provide vital support and guidance for promoting gender equality in China’s process of rule of law.
First, we can employ the provisions in the convention to review and reflect our existing legislation and guide our future legislation and revision of laws.
The Common Program approved by the first CPPCC of in 1949 and which served as the Constitution identified equality between men and women as the guiding principle. Later, the 1954 Constitution and the amended one also took this equality as one of the fundamental legal principles. The legislations related to women’s rights in China include Law on Safeguarding Women’s Rights and Interests and other special laws and lie in the basic laws such as Marriage Law and the General Principles of the Civil Law. China’s entry into ICCPR will provide us with an opportunity to reconsider whether the empowerment of women in China is adequate and effective in terms of safeguarding women’s civil and political right.
Second, the provisions in the convention can serve as guidance for our law enforcement practice.
Affected by legal instrumentalism over a long period, we have always put an emphasis on the social functions of the reference of the law, or the role of law in maintaining public order and social interests. The rights of persons may gain less attention in time of conflicts. Of course we have always acknowledged that the legitimate rights and interests should be protected. However, our understanding and consideration of human rights have once been inadequate. In this March, safeguarding human rights will be written into China’s constitution by the amendment to the constitution, enabling us to expect that the current situation will be completely changed. The content of ICCPR involves important aspects and events of all including women. Therefore, we should apply the relevant domestic laws from the perspective of human rights. To this end, the aim and principles of the covenant may serve as important guidance for us, among which the principles of non-discrimination and all being equal before the law may also render further support to the existing legislations in China.
Third, through the process of submitting state report to Human Rights Committee---a treaty body under the convention --- and accepting the relevant examination, we can enhance our awareness of the provisions in the convention and promote international dialogues, exchanges and cooperations. In addition, by focusing on domestic efforts supplemented by international interactions, we will push the course of gender equality to a new stage.
China has approved the all the general conventions under the U.N. system except ICCPR. According to the requirements of these conventions, Chinese government has submitted country paper for many times so as to illustrate the achievements and problems in implementing the conventions and accepted the examination of the treaty bodies. This is an international mechanism based on countries’ good will of fulfilling their obligations and the pressure from public opinions. As the U.N. High Commissioner for Human Rights and treaty bodies have popularized and upgraded their office computer networks, the Internet has played a more important role and the participation both at home and abroad has been increased, the draft, examination and follow-up action of the country paper will give more impetus to the implementation of conventions on human rights. Undoubtedly, this arrangement of institutionalization will have significant impact on China
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Besides examining state report, the various treaty organizations including Human Rights Committee can promote international exchanges and widen their influence by other approaches such as issuing General Comments and convene a General Discussion Day.
3. the feminist criticism and guidance
The covenant came into being in the 1950s and 1960s when feminism was still in its infancy, therefore, the concept of feminism was not fully valued or considered.
According to the scholars on feminism, the international human rights laws are faced with the challenge of improving the living standards of the vast majority of women in the world. They argue that the traditional international human rights law pays no attention to women at all.
Therefore it should be emphasized that the international human rights law including the Covenant shouldn’t be viewed as a static rule, rather, it should be taken as a whole dynamic process made up by institutions, personnel, rules and actions connected with one another. During this process, the feminism perspective plays a significant role.
However, that does not mean that we will deny or weaken the roles and significance of the existing international human rights laws including ICCPR. We hope that they will be developed both extensively and intensively through the criticism of feminism so as to facilitate women to change their disadvantageous conditions.
I hope the following concerns are unnecessary. Does the feminist criticism simply mean that the existing rules should be overthrown? If so, it will result in the ignorance or improper use of the existing human rights laws which we don’t expect. We should be aware that although the existing convention on human rights has its own weaknesses, it provides a useful platform, a set of brand new terms(to most Asian countries) and an opportunity for us to strive for human rights.
This doesn’t mean we refuse feminist criticism. What I mean is that we’d better take into consideration that China has just introduced the Covenant without adequate and effective digestion and practice in social life, therefore it is unrealistic to immediately criticize its weaknesses and expect a high level of its implementation. That will only lead to difficulties in balancing the different requirements from various subjects of rights just as a Chinese saying goes:“ the high tune cannot be accompanied by others.” Just imagine that when the rule of law concerning civil and political rights in a developed country has developed to a high degree, the Covenant will always be less significant than that in a developing country with a relatively low level of rule of law. Therefore, it will strike a responsive chord in the society to review the weaknesses of the relevant domestic laws and the convention from the feminist perspective under this circumstance. However, in a developing country where the provisions in the Covenant haven’t been implemented in its social life effectively, all of its people, men or women, are faced with the problem of implementing the Covenant in recognizing and safeguarding their rights. Therefore, under this circumstance, the feminist criticism on the Covenant will find it difficult to gain positive social response.
Therefore, it is necessary for us to review, criticize and guide the implementation of the Covenant from feminist perspective. Meanwhile, we should also recognize the great significance of the Covenant in the rule of law in China and be aware that the aim of promoting human rights of women is consistent with that of promoting human rights, therefore, our criticism and emphasis on the Covenant should also be harmonious.
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Associate Professor at Institute of Law of ChineseAcademy of Social Sciences