Credits: OHCHR
By Michael Liu
Introduction
On the last day of the 49th session of the Human Rights Council (HRC) in 2022, a resolution entitled “Promoting and protecting economic, social and cultural rights within the context of addressing inequalities in the recovery from the COVID19 pandemic” (ESCR Res.) was adopted by 31 to 14 votes, with 2 abstentions. This resolution was initially tabled by China and joined by Bolivia, Egypt, Pakistan, South Africa. Per China’s own count, 66 States in total subscribed to it as the sponsors.
Even after 7 or 8 (per U.S. and China’s count respectively) rounds of informal consultation, the final text adopted was not that different from the zero draft tabled. Only two unsubstantial amendments were introduced: it added the hybrid format of a workshop that the resolution envisioned and at the request of European Union member States, deleted the request for the Office of the High Commissioner for Human Rights (OHCHR) to work “in consultation with the expert” for being vague. Lack of heavy editing in a not so short drafting history which ended a non-consensus resolution might suggest there was some fundamental divergences among negotiation parties.
All in all, this ESCR Res. looks like just another effort from Global South countries to call for emphasis on economic, social and cultural rights, championed by the “Like-Minded Group” led by China. Yet the fact it was passed with a vote along geopolitical lines signals that it is perceived as more than an innocent effort.
As Foot has noted, the Chinese government has come to articulate a world view that reflects a strong commitment to a triadic model that it believes is superior to the UN’s three-pillar structure. That UN structure is designed to promote the interlinkages among development, peace and security, and human rights in order to provide protection for individuals. Beijing’s triadic model, on the other hand, connects economic development, the strong state, and social stability on the understanding that having these three components in place better guarantees international peace and security and thus human protection. For those 14 countries (all EU countries plus UK, USA, Honduras, Marshall Islands, Montenegro, Japan and Korea) that were voting against this resolution, it was a time to counter China’s systemic challenge.
The “illegitimate” inequality?
Immediately after the resolution was adopted, the US Ambassador Ms. Michèle Taylor affectionally registered her discontent.
The Core Group failed to define “inequalities” throughout the seven informal negotiation sessions and numerous bilateral consultations.
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Unfortunately, we believe the absence of definition is an attempt to redefine our shared understanding of human rights law so that states are held to different standards for upholding their human rights obligations dependent on their levels of economic development. This notion is antithetical to the foundational principle of universal human rights.
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OHCHR is charged with promoting and protecting the effective enjoyment by all individuals of all civil, cultural, economic, political, and social rights, but this resolution seeks to divert OHCHR’s focus from the promotion of human rights to addressing economic differences between states.
In short, Ambassador Taylor’s discontent focuses on the reframing of the concept “inequalities” as both “inequalities within and among States” [emphasis added]. Inequalities appears in this resolution 20 times, four times of which is framed as such “within and among”. Since there is little doubt inequality itself is a human rights concern, in particular in the COVID -19 pandemic context, the question is whether an inequality among states is an “illegitimate” human rights concern?
The term “inequalities within and among States” in fact is not an invention by Beijing. In the zero draft tabled, China made reference to a few Human Rights Council and General Assembly resolutions and ECSR committee reports. Among them was a resolution titled “Eliminating inequality within and among States for the realization of human rights” passed by the HRC on 6 Oct 2020 (2020 Res.). That resolution was tabled by Bangladesh, Nepal, Pakistan, Sierra Leone, South Africa and Turkey and passed with a narrow victory of 25 to 8, with 14 abstentions. By then, some Western countries like Australia counted no and voiced the same objection as Ms. Taylor, but some chose to abstain rather than to object. There was no unified EU position among EU states who were members to the HRC. Follow this resolution, on 28 September 2021, a half-day panel discussion was convened at the 48th session of the HRC, in which the High Commissioner herself and the former Prime Minister of UK were present.
In fact, “[r]educe inequality within and among countries” is Goal 10 of Sustainable Development Goals (SDGs), which were adopted by all UN Member States in 2015 and a 15-year plan to achieve the SDGs was made to coordinate the efforts, including those of different UN agencies. Given the broad consensus basis as well as the overarching nature of the SDGs, it is inconceivable to argue its appearance in the work of the HRC and the OHCHR is completely illegitimate and should be avoided as suggested by Ambassador Taylor. Rather, the contradiction or hypocrisy underlying this argument has long been noted by researchers and succinctly summarised by Prof. Alston, a former UN Special Rapporteur on extreme poverty and human rights (2014-2020):
It is telling that, when economic and financial issues are raised in the Human Rights Council, someone invariably makes the argument that it is not the appropriate forum and these matters should be dealt with elsewhere. And when efforts are made to raise human rights in the economic forums, the same governments insist that these issues be addressed in the Human Rights Council.
The legitimate concern
Having said all of the above, it would be a hastily made conclusion to suggest that the West has employed a double standard for geopolitical reasons and tends to judge a resolution more harshly if is tabled by China. The extra negative votes from the 2020 Res. to the ESCR Res. and the coordinated EU position on the later actually come with a good reason.
Reading from the text of the ESCR Res., one can immediately tell it places its accent on “States”, thus echoing the statist approach to human rights that China has long championed. Roughly one third of the operative paragraphs of the resolution is centred around “States”. In paragraph 5, it calls for joint and concerted response and recovery efforts to be “people-centred”, an euphemism for statis approach of China as it is the States who represent “the people”. In paragraph 7, it even blatantly encourages all stakeholders simply “to take into consideration of the needs of States”. When speaking on behalf of the EU member States that are members of the HRC, France accurately concluded that the “draft resolution presented States as rights holders” rather than duty bearers, hence meriting the objection to such terminology.
Putting into context, this ESCR Res.is not a coincidence or a sporadic effort from China to ontologically alter the rights holder of human rights from “human” be it individually or collectively to the “States” represented by the central authorities. In fact, as observed by Oud a seasoned researcher who followed on this issue for years: “[t]his statist, authoritarian twist on international human rights law as protecting the rights of sovereign states” has long been a prevailing feature in China’s human rights discourse. The difference is “in contrast to China’s human rights discourse in the 1990s and early 2000s, China’s authoritarian governance model is presented no longer merely as different from but as superior to the Western liberal democratic model” and its policy including those of human rights “is presented not only as encapsulating Chinese values with domestic relevance but as international norms with universal applicability.”
This ESCR Res. is one of the most recent examples of this effort to “export authoritarian human rights”. It illustrated China’s vision when it comes to human rights norms and governance and when that vision hits the reality of today’s world. China can harness a large amount of traction and followers with its rising economic and discursive power, in particular from the states in the Global South and count on its allies in the Like-Minded Group, but it will also encounter fierce challenges. Even with the divisions it creates and followers it gathers, the jury is still out when it comes to evaluating whether Beijing can successfully triumph as a norm entrepreneur in the fields of human rights.
An epilogue
Despite the controversy caused by the ESCR Res., the 3-day workshop requested by this resolution took place in February 2023. In this quite high-level event where both the High Commissioner and his deputy as well as the president of the HRC made interventions, not only did China and its allies make an appearance, but also some of their nemesis in the HRC, namely the USA and “hostile” NGOs like Amnesty International and Human Rights Watch who made an effort to appreciate the urgency of this subject matter and the timely effort of putting together a workshop thereon in Geneva. Given the unambiguous objections when the ESCR Res. was adopted, OHCHR staff who was tasked to organise this workshop shared with the author that diplomats from China (the pen-holder of the resolution) apparently was very much caught in surprise by the come-out of this workshop.
This series of run-outs from the adoption of the ESCR Res. to the workshop shows the complexity of human rights engagement with China, a country designated by the EU as a systematic rivalry and competitor as well as partner. In this case, the truth is that States on the other side of the geopolitical divide do recognise the importance of Economic Social and Cultural rights, even though they might not be placing rights as a priority the same way as China does. The risk of polarisation and politicisation would be alarmingly high if China is the only influential player pushing Economic Social and Cultural rights and other agendas that echo profoundly with States from the Global South.
For the West (or the North), cooperation or at least engaging with China is still feasible as long as it is within the well-recognised premises of human rights e.g. ESC rights are indispensable. And when that line is crossed, e.g. when China attempts to frame States as a rights holder, a vigorous push back should be expected.
Bio
Michael Liu is a lawyer and civil society activist from China. The NGO that he founded in 2012, "Chinese Initiative on International Law" (CIIL) has been actively engaged in rule of law training, refugee relief and gay rights advocacy in and out of China. The organization has also been granted a consultative status with the United Nations (ECOSOC). Previously, Michael was a victims’ counsel at the Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal) and worked at the International Criminal Court, the International Committee of Red Cross and a private law firm (Fangda Partners) under various capacities. Michael taught international law and other subjects at the Royal University of Law and Economics in Phnom Penh Cambodia (2013-2015), jointly supervised a legal clinic with Renmin University of China and Chinese University of HongKong, and had visiting professional affiliations with the Paul Tsai China Center of Yale Law School and another institution in Taiwan. He was invited speak at a TEDx event to commemorate the centenary of the Peace Palace in 2013. For his PhD research at Leiden, he wants to research on The rise of China as a norm shaping force in the global human rights discourse.