[Joint House and Senate Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
  THE UN HUMAN RIGHTS COUNCIL'S REVIEW OF CHINA'S RECORD: PROCESS AND 
                               CHALLENGES 

=======================================================================

                               ROUNDTABLE

                               before the

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            JANUARY 16, 2009

                               __________

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                             C O N T E N T S


                              ----------                              
                                                                   Page
Opening statement of Charlotte Oldham-Moore, Staff Director, 
  Congressional-Executive Commission on China....................     1
Gaer, Felice D., Director, the Jacob Blaustein Institute for the 
  Advancement of Human Rights and Chair, the U.S. Commission on 
  International Religious Freedom................................     2
Feinerman, James V., Professor of Asian Legal Studies, Georgetown 
  University Law Center, Co-director, Asian Law and Policy 
  Studies Program................................................     5
Li, Xiaorong, Senior Researcher, Institute for Philosophy and 
  Public Policy, University of Maryland..........................     8
Bork, Ellen, Senior Program Manager, Freedom House...............    11

                                APPENDIX
                       Submission for the Record

Article from the New York Review of Books, entitled ``China's 
  Charter 08,'' translated by Perry Link, dated January 15, 2009, 
  submitted by Xiaorong Li.......................................    24


  THE UN HUMAN RIGHTS COUNCIL'S REVIEW OF CHINA'S RECORD: PROCESS AND 
                               CHALLENGES

                              ----------                              


                        FRIDAY, JANUARY 16, 2009

                            Congressional-Executive
                                       Commission on China,
                                                    Washington, DC.
    The roundtable was convened, pursuant to notice, at 10:02 
a.m., in room 628, Dirksen Senate Office Building, Charlotte 
Oldham-Moore, Staff Director, presiding.
    Also present: Douglas Grob, Cochairman's Senior Staff 
Member; Steve Marshall, Senior Advisor and Prisoner Database 
Program Director; Andrea Worden, General Counsel and Senior 
Advisor on Criminal Justice; and Lawrence Liu, Senior Counsel.

 OPENING STATEMENT OF CHARLOTTE OLDHAM-MOORE, STAFF DIRECTOR, 
          CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

    Ms. Oldham-Moore. Good morning. I'm amazed at this turnout, 
given this cold weather is more like Harbin's or Lhasa's and 
not Washington, DC's. Thank you so much for coming.
    My name is Charlotte Oldham-Moore. I'm Staff Director of 
the Congressional-Executive Commission on China. I'm joined by 
my colleague, Doug Grob, who is Staff Director to the 
Cochairman.
    This is the first event of the Commission in the 111th 
Congress. The Commission is chaired by Senator Byron Dorgan, 
and co-chaired by Representative Sander Levin.
    For those of you who are new to the Commission's work, I 
want to draw your attention to our 2008 Annual Report and also 
to our Web site: www.cecc.gov, which is an invaluable resource 
on China, and I urge you to visit it.
    Today we will examine the UN Human Rights Council's 
upcoming review on China's human rights record. We have a very 
distinguished panel.
    I will first introduce Ms. Felice Gaer. She is the Director 
of the American Jewish Committee's Jacob Blaustein Institute 
for the Advancement of Human Rights, and she is also the chair 
of the U.S. Commission on International Religious Freedom. Jim 
Feinerman is the James M. Morita Professor of Asian Legal 
Studies at Georgetown University Law Center, where he is also 
the co-director of Law Asia. He is a widely published expert on 
Chinese law.
    Dr. Xiaorong Li is a senior research scholar at the 
Institute for Philosophy and Public Policy at the University of 
Maryland, where she also teaches. Her primary research areas 
are human rights, democratization, and civil society 
development. She is the author of a book titled ``Ethics, Human 
Rights, and Culture,'' and many articles.
    Ellen Bork is the Senior Program Manager for Human Rights 
at Freedom House. Before joining Freedom House, she was Deputy 
Director of the Project for the New American Century. She is 
widely published on China in the Washington Post, having done 
op-eds in Washington Post, Financial Times, among others, and I 
urge you to take a look at those pieces.
    Ms. Gaer?

  STATEMENT OF FELICE D. GAER, DIRECTOR, THE JACOB BLAUSTEIN 
 INSTITUTE FOR THE ADVANCEMENT OF HUMAN RIGHTS AND CHAIR, THE 
       U.S. COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM

    Ms. Gaer. Thank you very much, and thank you for the 
invitation to be here. I'm delighted that you're doing this.
    The UN Commission on Human Rights has often addressed 
country-specific issues. That Commission was mentioned in the 
UN charter in 1945, the only subsidiary commission so 
mentioned. The commission started out by never mentioning 
countries, working only on identifying the norms of universal 
human rights, but by the 1970s, it had begun to address some 
country situations, and by the 1980s, there were visits to 
countries and more.
    After the events at Tiananmen in 1989, the UN Subcommission 
on Human Rights adopted a resolution calling for an examination 
of the situation and criticism of the government of China. That 
went up to the Commission on Human Rights, and thereafter began 
a rocky period. There were attempts to address the human rights 
situation in China, and various countries stepped forward to 
present a resolution but they were always met with what was 
called a ``no-action motion.'' They were met with a lot of 
opposition. This procedural ``no-action motion'' was only 
defeated once, and that was in 1995. But even then, on a vote 
on the substantive issue of human rights in China, Russia 
changed its position. No surprise; it was in the midst of the 
first Chechnya conflict.
    This effort to try to address Chinese human rights by 
virtue of a country-specific resolution in the Commission on 
Human Rights continued apace. The United States often presented 
a resolution alone because other countries that presented it 
were harassed and suffered various kinds of sanctions, threats, 
et cetera.
    In the last years of Kofi Annan's Secretary Generalship at 
the United Nations, he drew attention to the fact that the 
Commission on Human Rights had become increasingly 
dysfunctional, increasingly politicized, and that governments 
were running to be members of this Commission in order to 
protect themselves from criticism rather than to be there to 
help advance human rights. That was his analysis.
    As a result of this, there was a discussion to create a new 
body to replace the Human Rights Commission. The original idea 
was to upgrade it to create a Human Rights Council so there 
would be a Security Council, an Economic and Social Council, 
and a Human Rights Council, and these would have a certain 
significance: security, development, human rights, the three 
pillars of the UN.
    What that Human Rights Council came to look like and how it 
came to be created became a subject of intense negotiations. 
But in that process a number of states decided that the most 
important thing that they could do was to de-politicize the 
Commission's atmosphere, and they thought the way to do this 
would be to professionalize it with a process that didn't rely 
on an annual resolution, but that instead relied on what they 
then called peer review. Peer review is usually conducted by 
peers and it is not uncommon in international organizations. 
The World Trade Organization, the Organisation for Economic Co-
operation and Development, a variety of other international 
organizations, the Organization of African Unity, all have peer 
review procedures.
    The idea was that this peer review would be universal, that 
every state would be reviewed, and would be reviewed by their 
peers, and that it would provide accountability, it would 
provide transparency, it would not be selective--the claim that 
only a few countries were being singled out wouldn't take 
place--and that it would actually help assess human rights, and 
that there would be followup. The intensive peer review 
procedures that do take place in other international bodies 
have followed that formula.
    The problem is that in the negotiations to create a human 
rights peer review in the United Nations, everything was up for 
grabs. So there was an intense effort to simplify it. Instead 
of restoring credibility, professionalism, and fair scrutiny to 
the main UN Human Rights body, which was the original concept, 
it seemed at times that this procedure was going to be 
toothless.
    And, in fact, the initial review procedures on other 
countries consisted of so many states getting up and 
complimenting countries for their adherence to human rights, or 
their promises to adhere to human rights, that some of us in 
the nongovernmental organization [NGO] community began to call 
it not the Universal Periodic Review, but the Universal 
Praising Review.
    Now, the change in the word from ``peer review'' to 
``periodic review'' clearly had as much to do with the bad 
English of the members of the negotiation groups as it did with 
the idea of moving away from having peers review peers. One of 
the big controversies over this process was whether, in fact, 
it would be an expert body or a body where countries examine 
other countries. It's gone in the direction of countries 
examining other countries because there's a parallel process in 
all of the UN Human Rights treaty bodies, whereby independent 
experts examine states on their human rights performance.
    The Universal Periodic Review that is scheduled for China 
is scheduled in a way that I believe shows that there is life, 
and there is human rights after the Olympics. The Olympics were 
scheduled to open on August 8, 2008, and the periodic review of 
China is taking place on February 9, 2009, at 9 a.m., so 
perhaps this sequence is deliberate, going from the 8s to the 
9s, and I'm looking for somebody to tell me the significance of 
that in Chinese orthography.
    In any event, the way the process works, is that there are 
three documents that a State presents. First, a State presents 
its own report, or anything else it wants to hand in, as an 
indication of what it has done. Second, the United Nations 
Secretariat, in the High Commissioner's Office, prepares a 
summary of what the UN procedures do and have said about that 
country, what the treaty bodies have said, what the special 
rapporteurs have said, and other UN bodies have said and 
recommended.
    And then, finally, the Secretariat summarizes the 
information it received from stakeholders--stakeholders are 
NGOs and anyone else appropriate. The original documentation 
that is sent in by NGOs is posted on the Web site. It's an 
extraordinary source of transparency.
    The State's representatives come in for an interactive 
dialogue and it takes three hours, so it will be from 9 a.m. to 
12 noon on the 9th of February. The government speaks for half 
an hour, the States ask questions. If you're a member State you 
get three minutes, if you're not a member State you get two 
minutes, and then the government concerned can respond, but 
cannot speak for more than a total of an hour in the whole 
three-hour period.
    After this, the States can then make recommendations. 
There's a working group. It negotiates recommendations. No one 
has seen the negotiations, which are not transparent. The 
recommendations have to have the approval of the government. 
The State's representatives have to say ``yes, I accept that'' 
or ``I don't accept that,'' and then the whole thing gets 
adopted--usually unanimously by the UN Human Rights Council.
    There have been 48 of these reviews to date. There will be 
192 by 2011. China is up for review now because it was a member 
of the council, and the members were supposed to come first, 
more or less. Like everything else in the UN, it was more or 
less. What I would say is, we're not quite sure whether this 
procedure is a foundation for the future or whether it's a 
battle station. One NGO has asked if this is building 
foundations or trenches? We're not sure. The point is, it's 
very much at a beginning.
    We have some lessons from the early stages of this 
procedure with other countries, and I'll give you a really 
quick rundown of what that has amounted to. China engages all 
of the other countries. It asks questions. The questions are 
almost always about economic and social rights, women's rights, 
or children's rights.
    Now and then they'll raise some other question. There have 
not, however, been recommendations, by and large, that are 
attributed to China, but China does ask questions. A question 
can be as minimalist as, ``Oh, I see that you've promised to 
ratify a treaty. What are you doing about it? '' Questions come 
in all shapes and sizes. I think that the prospects in this 
universal review will depend on the quality of the questions. 
The documentation is good.
    What needs to be done at this point in time, is that States 
have to be convinced to ask serious questions. Because they are 
government representatives standing up and asking the 
questions, they have to have authority and approval from their 
home governments. This requires a lot of advance planning. I'm 
glad the CECC is looking into this question in terms of the 
United States. The United States has been active in this aspect 
of the Human Rights Council, unlike other areas.
    Thank you.
    Ms. Oldham-Moore. Thank you, Ms. Gaer, for providing us a 
guide through this process.
    Professor Feinerman, please.

   STATEMENT OF JAMES V. FEINERMAN, PROFESSOR OF ASIAN LEGAL 
 STUDIES, GEORGETOWN UNIVERSITY LAW CENTER, CO-DIRECTOR, ASIAN 
                 LAW AND POLICY STUDIES PROGRAM

    Mr. Feinerman. Well, I'm grateful to Felice, particularly 
for providing that overview of the Universal Periodic Review 
[UPR] process, because I can go then into deep background and 
some of the history as far as China is concerned, which is, I 
think, the role I can best serve on this panel.
    I have tried to divide my remarks up in four parts: a few 
prefatory remarks, some discussion of the practice of the last 
20 years or so before the UPR, then switch quickly to China and 
the UPR process and what we might expect in the future, and 
conclude.
    But I just want to make a comment at the very beginning 
about the importance of the ``universal'' part of the UPR. We 
already heard about the ``periodic'' as opposed to ``praise'' 
part of the UPR. I think that a significant development--and 
this is important in what I'm going to say about China's 
practice up until the last couple of years or so since the 
unfortunate events of June 1989 in and around Tiananmen 
Square--is that China has finally come to accept the idea that 
there are universal human rights and to use the discourse of 
international human rights in a way that was not anticipated 
before, say, 1991 or so.
    I think that it's important that China now feels that there 
is this universal system that it's a part of too, and it can't 
go back to the old rhetoric of claiming that these are Western 
ideas, that the idea of human rights isn't genuinely global or 
universal, or that it's something that people outside of the 
formative factions that created the UN Declaration of Human 
Rights in the late 1940s can stand aside from and claim isn't 
really of their creation.
    Even then, I'm reminded of Ghandi's famous quip, when he 
was asked about Western civilization. He said he thought it 
would be a good idea. The implication was that Westerners 
believe themselves already to be uniquely civilized, and the 
rest of the world had to come along. China and the rest of the 
world have come along with regard to international human 
rights, and that's important.
    But very quickly, to give you my prefatory remarks, I have 
divided China's experience in the UN into three periods. 
China--the People's Republic of China [PRC], that is--after 
all, resumed the China seat in 1971. For the first 20 years of 
the last 40 years, it was pretty much a non-participant in the 
international human rights discourse, in the human rights 
institutions of the UN. It began to take more of a role after 
1980, as China became more of a participant in the 
international community generally.
    But I think it really was the shock of being censured by 
various UN-related bodies that had a human rights mandate after 
Tiananmen in 1990 and 1991 that somewhat shocked China into 
realizing that it wasn't going to be able to rely on the old 
shibboleths--that this was unwarranted interference in China's 
internal affairs--and that there were consequences, some of 
them quite embarrassing and problematic, for the PRC Government 
in not playing on the human rights field. So, it began to 
participate.
    Some might say that this is not necessarily a good thing. 
It also has some bad aspects in that, as a more involved 
participant, China wants to be part of the making of the 
standards and the rules. As, I think Felice Gaer has already 
suggested, it can be part of a large coalition that waters them 
down and makes them less powerful, less meaningful for the 
global community than they would be if countries that were 
somewhat more committed to the ideal standards of human rights 
were left alone to develop the standards on their own.
    But it's the trade-off for having China as a full 
participant, along with other countries that have had human 
rights problems in their past, to get them into the tent, and I 
think it's worth the bargain.
    So for the last 20 years or so, I think that China has been 
a participant. It's important because, to move on to that area, 
I think it's significant to note that China has been involved 
in both responding to criticisms of Chinese practices in the 
human rights area. There's a very useful book that is now 
unfortunately about 10 years old, but still one of the best 
things on China's human rights diplomacy in the UN by Ann Kent, 
that talks particularly about China's stance with regard to 
things like the Convention Against Torture, where--shades of 
the Bush Administration--it is basically argued that there is a 
question of definition about ``torture.''
    What it is claimed that China is doing, what NGOs 
especially claim that the Chinese are doing is torture, doesn't 
fit the definition of ``torture,'' at least as it exists in the 
Chinese criminal code, and therefore China can't be held up for 
violating that standard.
    This is true as well with the International Labor 
Organization [ILO] and international labor standards, where 
it's somewhat embarrassing for China claiming to be a Socialist 
country with a Communist Party that's the vanguard of the 
proletariat for the largest population in the world, for China 
to be targeted as violating fundamental standards of 
international labor rights and being censured by the ILO and 
some related international labor rights bodies.
    I think what Ann Kent's study proved, and this still tends 
to be Chinese practice up to today, is that China has learned 
to play the game. It's learned to criticize in the forms of the 
standard discourse. But on the other hand, it hasn't really 
internalized the standards that most would agree are the spirit 
behind these international agreements.
    It is engaging somewhat in a kind of persiflage, where it 
argues about what the definition of torture is, whether or not 
these labor right standards are in fact universal, whether 
there are other elements of China's economic, cultural, and 
social rights which better protect the interests of workers 
than the standards that are proposed by those who are reading 
more carefully the international labor rights documents.
    So to get us up to the UPR and what it promises for China, 
I guess there are three questions that I would ask us to think 
about. One, is whether the Human Rights Council, as it's now 
constituted and transformed from the previous Commission and 
Subcommission on Human Rights, is genuinely an improvement and 
promises to do better than the old system did in the United 
Nations. As I've already indicated, I rather like it on the 
score of universality.
    But I think that the experience of countries, going back to 
almost the founding days of the United Nations, who were able 
to twist the standards of human rights and use, for example, 
the United States' non-signature of various international human 
rights standards against us. Where we would say that we were 
just taking seriously the implications of implementation and 
compliance if we 
actually did accede to these agreements, the former Soviet 
Union, for example, was perfectly happy to sign them all and 
then tweak the United States for not having signed the 
documents that it was itself honoring in the breach.
    So, we need to think about whether this is going to make a 
significant difference, a genuine improvement in the enjoyment 
of human rights as opposed to just a lot of legal hair-
splitting as to whether or not we've signed an agreement and 
whether the agreement is being properly implemented under the 
standards that most people would recognize.
    I think also we need to worry about this question of peer 
review and what other nations perceive as their peers. It's 
interesting that China, which has done a review already of 
India, pulled its punches with regard to its closest peer, at 
least in terms of population, complexity, and a series of human 
rights issues that are on the table there, partly out of a 
sense that there's a kind of honor among thieves, and that 
we'll do this for you and you'll do that for us, and this is 
the standard that we can now expect in this process of peer 
review.
    It may be that not only China, but the United States and 
other major countries really see themselves as having no peers 
that can effectively criticize them, no matter what they or 
this UPR process produces. I'm reminded that when I was an 
undergraduate at Yale then-President Kingman Brewster was asked 
by a news commentator about his peers in Cambridge, and he 
seemed to ignore the question. So the questioner pressed him 
again and said, ``Your peers in Cambridge, President Brewster? 
'' And he looked at him and said, ``We have no peers in 
Cambridge,'' which may show a kind of Ivy-League hauteur. But I 
think that there are implications as well in the international 
community for powerful nations that really feel they have no 
peers, at least no peers that could meaningfully do anything to 
them or sanction them.
    Finally, I would just worry about--and I know that Felice 
and her counterparts are in the forefront ofthis--the real 
ability of NGOs, as opposed to governments, to have a serious 
impact on the process. I'm a big fan of what they do, and I 
think it's absolutely necessary to get the information out and 
to have it be as transparent as it is in this new process.
    But ultimately we want to be able to do something. We want 
to be able to have an impact on the actual enjoyment of human 
rights on the ground. I have no magic wand; I don't believe the 
NGOs have been able to produce one either. The meaningfulness 
even of government-to-government sanctions seemed to be fairly 
limited, if we just look at the United States' own experience 
in trying to bring other nations into line on human rights. So, 
I'm worried.
    The last thing I would mention before I conclude is that I 
think it's also worth noting, and I published a recent op-ed 
piece in the Washington Post which I think is going to be 
provided as part of the material for this hearing, that says 
that in the last four or five years, one of the things that I 
think needs to be noted in this process is a real retrogression 
in the enjoyment of human rights in China.
    I've been coming here to the Hill now for almost 20 years, 
since the early 1990s, and in hearing after hearing, saying 
that even though there are still problems with human rights in 
China, the major fact that we need to take note of--and give 
the Chinese Government some credit for--is that more people in 
China enjoy more human rights than they have at any time 
previously in Chinese history.
    I think since about 2002 or 2003, that's not true any more. 
I'd actually key it somewhat to the accession of Hu Jintao and 
Wen Jiabao and the transition from the Jiang Zemin and the Zhu 
Rongji regime previously. I think that it's something that 
really is quite shocking, if we look at what's happened to 
legal defenders, for example--and I mean not only lawyers, but 
other people who are trying to protect the individual rights of 
Chinese citizens. I think it's shocking, if you look at what's 
happened in the area of religious freedom, which I know is a 
big concern to members of this panel. I think it's shocking as 
well in terms of the bald-facedness with which China is willing 
to stand up and announce that it is doing these things, and 
what can the rest of the world do about it?
    There is a story just in today's New York Times about the 
punishment of someone who was trying to make a protest during 
the Olympics, and the dire consequences that he suffered in 
following the rules that the Chinese Government itself set down 
for doing a legitimate government-sanctioned protest during the 
Olympics. If you can't even play by the rules and hope to 
escape punishment, it suggests that things have seriously 
deteriorated.
    So in conclusion, I would say that I really want to worry a 
bit more about what the process is going to provide at the end 
of it. I agree that it's important to do it. I'm glad that it 
promises a greater universality and that China is going to be 
an early participant in both ways in the process, as an object 
of study and as a participant in the studies of other nations.
    But I think that we want to keep our eye on the ball and 
see what it actually does in terms of enhancing the enjoyment 
of human rights in China, which had been proceeding apace 
pretty well, or as well as could be expected, for decades, up 
until the last few years.
    Ms. Oldham-Moore. Thank you, Professor Feinerman, for those 
insightful remarks.
    Now we're going to turn to Ms. Xiaorong Li, please.

  STATEMENT OF XIAORONG LI, SENIOR RESEARCHER, INSTITUTE FOR 
      PHILOSOPHY AND PUBLIC POLICY, UNIVERSITY OF MARYLAND

    Ms. Li. Thank you for this opportunity to address issues 
related to the upcoming UN Human Rights Council's [HRC] 
Universal Periodical Review [UPR] on China. As the previous 
speaker, Ms. Gaer, has expertly described, the UPR is a brand 
new, thus very little known UN human rights tool. For an 
organization like the UN, the establishment of UPR is 
remarkable. Only a few years ago, it would have been 
unimaginable to put China under international spotlight to 
scrutinize its human rights record in a comprehensive manner. 
Since 1989, almost every year, China had successfully blocked 
any vote on motions at the now-demised UN Human Rights 
Commission to put on its agenda to examine China's human rights 
behavior! This once seemingly insurmountable hurdle now 
suddenly vanished!
    However, UPR can be abused by UN member states, especially 
those who are unfriendly to human rights and the process can be 
highly politicized, its effectiveness minimized. The UN is an 
inter-governmental organization, where member states lobby, 
bargain, and position themselves to advance their own national 
interest. China in particular has demonstrated its skillfulness 
to mount impressive efforts to lobby its ``friendly'' countries 
at UN venues.
    Some common tactics that member states have used to 
undermine UPR in order to prevent a critical report on their 
performance are: (1) using ``national human rights 
institutions'' and government-organized ``non-government 
organizations'' [GONGOs] to submit rosy reports to dilute the 
10-page compilation by the Office of the High Commissioner for 
Human Rights [OHCHR] of stakeholders' submissions; (2) filling 
the 3-hour ``interactive dialogue'' with praises or irrelevant 
remarks by delegations from ``friendly'' countries; (3) using 
the opportunity for state party response to dismiss critical 
questions or independent NGO submissions as ``slandering'' or 
``fabrications.''
    So why does China bother to buy into UPR or become a member 
of the HRC? That is a much larger question than I could address 
here. There are some interesting hypotheses on the table: (1) 
China wants to be treated as a member in good standing in the 
international community; China could not have opposed UPR while 
keeping a straight face because, when China rebutted critics of 
its human rights, it has accused them to be ``selectively 
targeting China'' or ``politicizing human rights''; UPR applies 
to all countries. If you look at China's National Report, it 
refers to its own position on human rights as based on ``equal 
respect,'' ``fairness,'' ``objectivity, non-selectiveness''; 
(2) UPR has been structured in such a way that the pain for a 
state to undergo it is minimized, a point that I will come back 
to soon.
    China's own ``National Report'' to the UPR Working Group is 
a typical affair. It follows a pattern, as we have seen in 
China's reports to the Committee Against Torture or the 
Committee on Economic, Social, Cultural Rights, by presenting a 
positive assessment of its ``great progress,'' reiterating its 
commitment to promoting human rights, and highlighting 
legislative and regulatory steps, while glossing over ongoing 
violations and omitting the fact that many good-sounding laws 
are impossible to implement and officials who failed to 
implement them face little consequence.
    One way to reduce UPR's vulnerability to politicization and 
abuse is to facilitate active participation of civil society, 
or NGOs. One remarkable thing about UPR is its built-in 
openness, no matter how limited, for civil society 
intervention. To sufficiently explore the opportunity is the 
only way available to make UPR have any impact. So when the 
schedule to review China was set, the UPR Working Group called 
for NGO submissions last summer. Forty-six ``stakeholders''--
national human rights institutions and supposedly NGOs--
submitted reports, each restricted to five pages. The UN OHCHR 
has compiled a file summarizing ``credible and reliable'' 
information from stakeholder's submissions.
    Other than national human rights institutions, there are at 
least three types of organizations on the list: International 
NGOs, including Chinese, Tibet, and Falun Gong groups overseas, 
Chinese--including Hong Kong--NGOs, and GONGOs. Two things are 
interesting: (1) Most of the groups from China are GONGOs, with 
few exceptions. The GONGO reports generally present 
``progress'' and recommend legislations that are already being 
drafted or proposed. (2) Groups that working on children, 
women, migrants, or HIV/AIDS did make submissions. Yes, there 
is no independent human rights NGOs like Amnesty International 
or Human Rights Watch from the mainland who made submissions, 
though some loose networks of activists/dissidents participated 
in the submissions with international groups.
    The missing of Chinese domestic, openly operating, or 
``legally registered'' human rights NGOs has to do with 
restrictive regulations and official crackdowns on independent 
NGOs.
    So we can be almost certain, no mainland Chinese human 
rights activist will attend the UPR session in Geneva in 
February, even though they might be invited to go by 
international NGOs. There is the risk factor: fear of being 
intercepted on the way out or retaliated against going back--
one activist was recently interrogated several times, his home 
was raided and personal belongings confiscated. The policemen 
said they acted on the order from above to do anything to stop 
anyone from preparing a human rights report for the UPR. But 
additionally, there are also obstacles such as travel costs, 
and UN Economic and Social Council [ECOSOC] accreditation, even 
for any legally registered groups.
    Ironically, problems such as restriction on freedom of 
association, assembly, and speech, which the UPR is intended to 
examine and, hopefully, find solutions, play a key role in 
undermining UPR, diminishing its impact.
    Another way to make UPR work is that human rights-friendly 
member states should actively participate. The three-hour 
``interactive dialogue'' on February 9--from 9 a.m. to 12 
noon--is open to all 192 countries--for example, the United 
States is not an HRC member, but can participate. The February 
11 session is when the record of the State reviews are 
considered, which lasts for 30 minutes--12-12:30--where China 
can respond or reject some recommendations. Then, there is an 
HRC plenary session several months later where the report is 
adopted. Only NGOs with ECOSOC accreditation can attend these 
sessions and can make statements only in the HRC session.
    It is important to get into the final report of the UPR 
working group a concrete list of substantive recommendations 
with measurable results. This document will go in the record as 
a testimony to China's delivery after it has made pledges to 
promote human rights and signed numerous treaties, covenants, 
and declarations on protecting human rights. All stakeholders 
in the next four years can refer to this document as a 
yardstick to measure any progress China may or may not make. 
China will be in an awkward position to denounce such a 
document as ``interference in its internal affairs'' by ``anti-
China forces'' with ``ulterior motivations''--because China has 
gone through the process and participated in setting the rules 
and in reviews of other state parties. It can't quite dismiss 
the process as ``selective'' or ``unfair.''
    What could the U.S. delegation or any other human rights-
friendly countries do in the UPR process? The United States is 
not a member of HRC, but has observer's status.
    They can prepare one good question about an area of serious 
rights abuses and make one substantive but feasible 
recommendation.
    For instance, given the importance of free speech as a 
fundamental human right, the U.S. permanent delegation could 
ask the question about the detention and harassment of 
signatories of Charter 08, who merely exercised their freedom 
of expression by endorsing a declaration on human rights and 
democracy. Ask for the release of detained signatory writer/
intellectual Liu Xiaobo on suspicion of ``inciting subversion 
against the state,'' which is a crime frequently used in China 
to persecute free speech.
    The U.S. delegation could recommend that China release Liu 
Xiaobo, and, for the longterm protection of free expression, to 
clarify and precisely define the meaning of the terms 
``incitement,'' ``subversion,'' and ``state power'' in Article 
105(2) of the Chinese Criminal Code as well as the specific 
conditions under which a peaceful act of expression may 
constitute ``inciting subversion against state power.'' Such 
conditions must explicitly exclude any non-violent activity in 
the exercise of the right to freedom of expression, including 
expressions critical of political parties and government 
authorities.
    In connection to this last point, I should mention that I'd 
like to submit the English translation of Charter 08 by Perry 
Link that appeared in New York Review of Books for the record.
    Thank you.
    Ms. Oldham-Moore. Thank you. We will include the 
translation into the official transcript. And thank you so much 
for your remarks.
    Ms. Bork, please begin.
    [The Charter 08 translation appears in the appendix.]

 STATEMENT OF ELLEN BORK, SENIOR PROGRAM MANAGER, FREEDOM HOUSE

    Ms. Bork. Hello, everybody. I'm glad that Xiaorong finished 
her remarks by mentioning Charter 08, which I'm going to 
develop further for discussion with all of you.
    But, first, I just want to mention Freedom House's position 
in general on the UPR, which for very much the same detailed 
and substantive reasons that my colleagues have given here, is 
a very mixed one. We are generally supportive of engaging in 
the process, and view it as not inherently flawed, but lacking 
real political commitment from countries that could make it 
more meaningful.
    In this connection also, Freedom House is on the verge of 
releasing its annual Freedom in the World survey. You won't be 
surprised to find out that China does not come out very well in 
that survey of civil and political rights. In the preview 
that's been released, Freedom House notes that of all the 
people in the world who are assessed as being not free, half of 
them live in China.
    In the past year's review, special note is taken of the 
crackdown on Internet journalists and bloggers, restrictions on 
lawyers, the arrests of various dissidents, including Hu Jia, 
the crackdown in Tibet, and also Charter 08, which came at the 
very end of the year, and which ought to be viewed as a very 
positive development that the democratic world can respond to.
    I was invited to join this discussion because I have been 
interested very much not only in Chinese dissidents, but also 
the inspiration Charter 08 drew from Charter 77, the dissident 
initiative in the former Czechoslovakia.
    As Xiaorong mentioned, Perry Link translated it in the New 
York Review of Books. In his preface, he noted that through his 
acquaintanceship with many Charter 08 signers, he was aware of 
their ``conscious admiration'' for Charter 77. In fact, you may 
have seen that within several days of Charter 08's publication, 
Vaclav Havel himself, one of the founders of Charter 77, 
published an article in the Wall Street Journal, acknowledging 
this connection and seeking to mobilize support for Charter 08.
    This issue of the relationship between Chinese dissent and 
dissent under the former Soviet Union, and the influence each 
has had ought to be developed thoroughly as it holds a lot of 
useful lessons.
    For example, I think you are all aware that Fang Lizhi is 
known as the ``Chinese Sakharov.'' These echoes are very 
important, not least because so many Americans look at Soviet 
dissent as the model of dissent. Also, the American response to 
Soviet dissent shapes our views of what governments can do, and 
also I would say what non-governmental actors can do.
    Looking back at that era as a sort of model, it's easy to 
forget that it wasn't always so clear that the United States 
would lead other free countries in support of Soviet 
dissidents.
    In fact, the Helsinki Accords, which we often look at as a 
great lever, were not intended to impose or encourage human 
rights standards. The Accords themselves were designed to 
confirm the Soviet Union's post-war borders. The human rights 
components were something of an afterthought. In fact, it was 
several European countries that made a nuisance of themselves 
and insisted on the so-called ``third basket'' of human rights 
provisions. American leadership at the time was not especially 
open to this, that is Secretary of State Henry Kissinger and 
President Ford himself. Although I think I recall that 
President Ford later thanked people for forcing him into 
accepting these as a condition of the Accords and approving, 
ultimately, the establishment of the U.S. Helsinki Commission.
    So the United States, as a government, was not the first or 
the staunchest source of support for using the Helsinki Accords 
or for pressuring the Soviet Union and Soviet bloc countries on 
human rights.
    Instead, the strongest leadership in this regard came from 
private and independent people, like Jeri Laber at Helsinki 
Watch, and Lane Kirkland, head of the AFL-CIO who led the labor 
movement in playing such a vital role in supporting the 
Solidarity trade union movement. When official U.S. support was 
not forthcoming, Kirkland pushed ahead himself and led the 
labor movement to provide support.
    Many of us here today are part of a community that intends 
to bring about just such pressure on China to make progress on 
human rights. Yet we don't see, frankly, the fruit of our 
efforts in the way we'd like. So I've come to the conclusion 
really, and I think it's a fairly obvious one, that there is 
something else that has to change in the way China is viewed 
and treated in foreign policy. Again, my colleagues here, we 
all certainly have a view that the UPR and other mechanisms 
should lead to these things, but the question remains why they 
don't.
    At this late date, our official concept of the way China 
should evolve is based on the notion of ``engagement'' and the 
belief in inevitable progress through economic development, 
top-down reform, and the belief that Chinese leaders will come 
to see reform as in their interests. Here again, the Soviet era 
provides a lesson and a model. Although U.S. policy toward the 
Soviet Union moved from one of detente to one that viewed the 
Soviet Communism as untenable, in China same thing has not 
happened.
    Ms. Oldham-Moore. The first question will be offered by 
Andrea Worden, who is our General Counsel at the Commission, 
and Senior Advisor on criminal justice issues.
    Ms. Worden. I'm Andrea Worden, General Counsel of the CECC. 
The question I would like to ask is directed to Ms. Gaer.
    Ms. Gaer, you are the vice chair of the UN Committee 
Against Torture. In November of last year, the committee 
reviewed China's compliance with the Convention Against 
Torture. Based on your recent experience with the Chinese 
Government during that review, what should we expect from China 
during the upcoming Universal Periodic Review?
    Ms. Gaer. What an interesting question. The government of 
China participated fully in the review of the Committee Against 
Torture [CAT]. We provided a list of questions initially, to 
which they responded. We asked a lot of points of law and 
questions of fact, particularly raising a lot of specific 
cases, on the assumption that cases are what tells you whether 
the law works. We received a lot of information about the law.
    Unfortunately, we were told nothing different than what has 
been reported in the media about the cases. We raised three 
over-arching issues from the beginning. We have an oral 
question-and-answer process as well, and we raised some 
questions about how the State Secrets Act had influenced the 
information we were given, because we were given so little 
information on so many important questions that we asked. We 
were never told that the reason was the State Secrets Act, but 
we were trying to see if perhaps that was or was not the 
reason. We concluded that that was a problem.
    But we got full responses, and we got a great deal of 
courtesy. China brought a large delegation, headed by a high 
official and representatives of a wide range of Chinese 
Government bodies. That same pattern is what you will see at 
the UPR. All the countries that have been examined at the UPR 
so far have come in with reports on time, they've come in with 
prominent heads of delegations, often ministers, and with 
sizable delegations. No one has requested a delay of the 
review. So you'll see them at the UPR, on time, and they will 
respond as expected.
    Now, what also happened was that we also got responses. But 
again, some of those responses were less than we would have 
liked. When we asked for information about what had happened in 
Tibet--I personally gave the head of the delegation an NGO list 
of an alleged 800 persons who are missing--he promised to get 
information for us. It never came. We asked a second time, but 
although he promised, it never came. We produced our 
conclusions without it.
    We concluded that information was a big part of the problem 
but we did not hesitate to draw attention to cases. We thought 
that that was perhaps the best way to ensure that the process 
has some followup, because that's the best way to see what 
happens.
    So, at the UPR there will be a high-level group. They will 
follow all the procedures that Jim Feinerman talked about, and 
the only question is whether it will provide any new 
information on important cases or not. In the end, when we got 
an oral response on Tibet from the government, it was the local 
official responsible for Minority Affairs who made a response. 
It was a strident response, not a helpful response. It had a 
lot of those words that are so familiar from the media.
    Similarly, I asked a lot of questions. Article 3 of the 
Torture Convention deals with non-refoulement, non-return to 
torture. Anybody who faces a risk of torture is not to be 
returned. They're to be dealt with in the country where they're 
being held.
    I asked about North Koreans crossing into China, large 
numbers of whom are reported returned and subjected to torture 
and other forms of ill treatment. The government responded by 
saying there were no refugees from North Korea although there 
are ``illegals.'' These were the usual explanations. But in the 
written response to the CAT, the government went so far as to 
say, and the people who deal with them are ``snakeheads.''
    Now, this is not a term that we at the committee are 
familiar with or accustomed to, and I did not think that it 
helped the discussion. So there will be moments where there 
will be real engagement and there will be moments that will not 
reach it, and we 
experience both.
    Ms. Oldham-Moore. Thank you. Thank you very much.
    Now I turn to the audience, please. Anybody who would like 
to ask a question? Yes. Please stand. Thank you.
    Ms. Star. I'm Penny Star with CNS News. I'm wondering, I'm 
trying to wrap my head around how this works and what the U.S. 
representatives, whether they're government or NGO, are asking 
about specific reforms or what they want to see done about 
human rights abuses in China. The two I have in mind are in the 
population planning, forced abortions, and also religious 
persecution and people who are arrested, killed, or disappear 
for those two things. I wondered how the United States is going 
to address that in this review.
    Ms. Oldham-Moore. Great. Thank you very much. Jim 
Feinerman, do you want to take a shot at that?
    Mr. Feinerman. Well, I'll take a stab at a start. I think 
that these are two issues that, again, depending on the 
administration here in Washington, may be addressed somewhat 
differently. I think certainly for the Republican 
administrations of the last 30 years, forced abortion has been 
a real flash point and something that they've been very 
seriously concerned about. I think it's offensive to anyone, 
Democratic or Republican, and a real problem of China's 
population planning.
    But here is where you see the stock responses brought up, 
that this is China's way of dealing with an internal matter 
that China has to address before it can address any other human 
rights issue, and it gets back to a long-running debate about 
whether economic, social, and cultural rights trump civil and 
political rights and what China needs to address first in terms 
of all the human rights of the entire China polity. It gets 
into collective versus individual rights. I don't know how far 
this is going to be pressed, either by the Obama Administration 
or by other nations as well, who seem to be rather 
uncomfortable with the idea of taking this on.
    As far as religious freedom is concerned, this is something 
that I think has greater traction and is something that a wide 
range of not only U.S. administrations, but foreign governments 
outside of China are also willing to address. The sticky issue 
there becomes this definition of what is ``religion,'' for 
purposes of protecting religious freedom.
    Of course, the Falun Gong movement is one of the prime 
issues there because, whether or not you characterize Falun 
Gong as religious practice, there's an argument that torture, 
illegal detention, even extra-judicial killing that's happened 
in some cases, can't be countenanced whether or not it's a 
violation of their religious freedom or just violation of other 
basic non-derogable human rights.
    I think there the United States should be in the forefront 
of speaking out about it, both as a religious freedom matter, 
but also defending the bare minimum of those non-derogable 
rights that we, as a nation that professes to protect the civil 
and political rights of our citizens, care about them and the 
rest of the world, really wants to make an issue.
    Ms. Oldham-Moore. Yes. Thank you. A quick followup.
    Ms. Star. What did you say about taking on the subject of 
forced abortion? I'm not sure I----
    Mr. Feinerman. Yes. I think that there's an argument that 
people who are generally pro-choice want to be careful or 
cautious about the issue of whether or not China's policy is 
coercive in that they don't want to be put in a position of 
seeming to oppose freedom of choice with regard to abortion by 
opposing something that clearly crosses the line and is a human 
rights violation in China, but might become a more explosive 
issue in the Choice versus Right to Life debate.
    The Chinese, I think, have capitalized on this. They've 
realized that they can turn the arguments that people make 
about women's rights in other countries around the world with 
respect to a right to choice in regard to abortion against 
people who criticize China for something that, whether you're a 
proponent of Right to Life or Right to Choice, clearly seems to 
me to be irrespective of your views about abortion, of course 
of violation of human rights.
    Ms. Oldham-Moore. Okay. Thank you.
    Next question. Dr. Brettell?
    Ms. Brettell. My question relates to--I have several 
questions, actually.
    Ms. Oldham-Moore. One question.
    Ms. Brettell. One question?
    Ms. Oldham-Moore. One question.
    Ms. Brettell. Oh, gosh. Okay. Has the official Chinese 
definition of torture changed over time and as a result of 
interaction with the international human rights community?
    Ms. Gaer. Well, I would say that the definition has changed 
little, but there is a recognition of torture and ill 
treatment. There's a lot of activity that's been carried out by 
the Chinese Government to criminalize torture and to train 
officials in the prohibition, because of the publicity that it 
has garnered inside and outside the country. In that context, 
the Committee Against Torture has continued to draw attention 
to the fact that the official Chinese definition does not meet 
the UN definition, that it's still about confession and 
coercion in detention only.
    So if you're on the way to detention, and things that have 
happened in Tibet and so forth may not fall within that 
definition, and in that context, if I may take the opportunity 
just to comment on Professor Feinerman's remarks, I am fiercely 
pro-choice and I have never hesitated to bring up the issue of 
the violence and coercion associated with China's population 
policy.
    You will see that issue, articulated in that way, has been 
raised by the UN Committee on the Elimination of Discrimination 
Against Women, by the Committee Against Torture in 2000 when I 
was first a member, by the Committee Against Torture last 
November. Again, it falls elsewhere. It's not a problem.
    Ms. Brettell. Is it clear we'll see it as----
    Ms. Gaer. The violence and the coercion associated with it 
establish it not only as a human rights violation, but it would 
fit into definitions of torture.
    Ms. Oldham-Moore. Okay.
    Xiaorong, did you want to comment on this?
    Ms. Li. On the abortion issue, I can also say myself, I am 
fiercely pro-Choice. But I've been comfortable to speak up 
against forced abortion in China and have written a Law Review 
article called ``License To Coerce,'' which is precisely about 
this issue.
    About the definition of torture, China has come a long way, 
as Felice and Jim pointed out. There are two problems with 
China's definition of torture. One, is a restriction of 
``torture'' to physical assault and mistreatment, but a lot of 
torture going on in China is not active assault or only mental 
or psychological.
    For example, exposed to cold for long periods of time, 
turning on the air conditioning in full blasts, and also making 
somebody sit on a very short, low stool for very long hours at 
a time. Also, the use of threats, intimidation, saying if you 
continue with this or that activity your family members might 
suffer, or you might lose your job. Also, police use the threat 
of violence against you or your family by unidentified/plain-
clothed men.
    The other limitation is to restrict ``torture'' to acts of 
torture committed by law enforcement officers or prison guards, 
with a narrow focus on officials in the criminal system. But 
there's this broad range of government officials who are 
involved in the use of violence and torture, for example, city 
management officials [chengguan], or CCP party functionaries 
who lock up and beat up their own members for ``corruption'' or 
committing other wrongs in official facilities [shuang gui] or 
government officials in charge of receiving complaint letters 
and visitors [xin fang department officials].
    Ms. Oldham-Moore. Jim, you wanted to add something?
    Mr. Feinerman. Yes. A point about torture, since I brought 
it up in my own remarks. I think that I want to underscore the 
point that Xiaorong was just making, that the definition that's 
contained in China's criminal law, and there are really only 
two provisions of the criminal law that address this, pretty 
clearly limit the Chinese idea of torture solely to physical 
punishment that takes place when people are detained in the 
official criminal process. So the list leaves out a wide range 
of things. It leaves out everything that isn't specifically 
physical torture. Any kind of mental torture that doesn't have 
a physical manifestation is not contained in the Chinese 
definition of torture.
    More important, this limitation to those who are being 
criminally detained in the official process means that people 
who are subject, for example, to police detention outside of 
the formal criminal process aren't covered by the definition 
that's in the formal criminal law.
    As I think the last few remarks Xiaorong was making made 
abundantly clear, this is something that happens more often 
than not. It's a very tiny minority. It's the molehill, the tip 
of the iceberg of the cases that are actually in the formal 
criminal process. The vast majority of things happen outside 
their formal criminal process, and there the gloves are off. 
There, there are no limits on the kind of activities that can 
be carried out. You won't be criminally prosecuted. You won't 
have violated China's criminal law in those cases.
    Ms. Oldham-Moore. Thank you.
    Anybody from the audience, question? Yes. Lawrence, please. 
Lawrence Liu.
    Mr. Liu. Yes. I wanted to ask about, you mentioned a 
followup on that portion of the UPR. I understand that states 
can make recommendations and the state under review can 
undertake voluntary commitments. I'm just wondering, to the 
extent that those can be used as levers for followup in 
ensuring that progress is made with human rights and the 
particular State under review, do those have teeth? What have 
been recommendations? What have been some of the commitments?
    Ms. Oldham-Moore. Thank you. Good question.
    Ms. Gaer. Well, the simple answer is, nothing in this 
process has teeth. It was designed as a peer review process, 
without any enforcement capacity. Now, that's true of the 
entire human rights business in the United Nations. Regarding 
the instruments and the treaties and the other things, there 
are no enforcement mechanisms that have teeth, that can be 
enforced. I suppose if you go to the Security Council and you 
get a criminal court established or something, then you will 
have enforcement power.
    But short of that, it doesn't exist, and it doesn't exist 
in the human rights area. So what kind of followup takes place? 
You build a web of commitment, you build the embarrassment of 
public exposure, the public exposure in the ``club'' of the 
peers. You have to participate. You can't just walk out. You 
want to show, as Jim Feinerman was saying, that you respect the 
rights and you accept the rights.
    But the problem with the UPR process is, because it 
includes everything in the Charter, the Universal Declaration, 
treaties signed, commitments made voluntarily, including at 
international conferences, a review of any given country can be 
completely selective about what issues it deals with.
    In the UPR, you can pick the most benign issues or the most 
severe issues--it's usually the most benign--reach conclusions, 
and then there's no enforcement. There will be a review in some 
years, if the Council continues to exist, if it continues this 
procedure, and if the procedure gets stronger. It has already 
gotten stronger from the first to the third session in terms of 
the quality of questioning and the planning by governments.
    I think if we look at all UN bodies, you find that same 
trajectory. The improvement will depend on NGOs and the input 
and the preparation, in this case, that governments give to it, 
and if they then have a means of holding governments to these 
extended and vague recommendations that are made, it would be 
quite remarkable.
    Ms. Oldham-Moore. Thank you.
    Question from a woman in the back, please. Yes, please 
begin.
    Ms. Couple. Virginia Couple, Albert Shanker Institute. 
About a year ago, we did a Chinese -- in the report -- this law 
-- participate.
    Ms. Oldham-Moore. Did everybody hear?
    Mr.  Feinerman. I follow this a little bit. Since I brought 
up the ILO and China's participation in that, I should probably 
begin addressing this question, but I welcome other comments 
that my fellow panelists may have. I think that China is going 
to say that the Chinese labor system is already the best of all 
possible worlds, and that it's only been made stronger.
    To use the model of the Cultural Revolution, the situation 
is excellent and constantly improving with regard to the 
enjoyment of labor rights in China. Of course, that's not true. 
In fact, I think that in the current economic climate, actually 
in things that have been going on in the Chinese economy for 
the last decade or more with the evolution of a market economy 
from a state command economy, workers experience a lot of day-
to-day problems that the new labor law hasn't addressed and 
that the Chinese leadership wants to sweep under the rug.
    If you just take note of the last count, approximately 
85,000 protests annually, some of which are quite small but 
some of which are quite large in number, the larger ones tend 
to be the ones that involve violations of labor rights--
everything from unpaid wages, especially companies that are now 
going out of business, where the Hong Kong or Taiwan investor 
just skips the country, literally, and closes down the factory, 
to situations where people are given paper IOUs instead of cash 
month after month, sometimes year after year, but still 
expected to work in almost slave labor-like conditions. This is 
something that I think needs to be brought up by the 
international monitors of global labor rights, but I'm not so 
sure how much the Chinese Government is going to take that or 
respond to it.
    The one last thing that I would mention in regard to the 
labor rights question is that, as I mentioned in my opening 
remarks, China is very sensitive about this. It just won't do 
for China to be seen as falling down on the job as far as labor 
rights are concerned. But the arguments have mostly been those 
of denial and resistance rather than any promises to reform. If 
you just look back to what happened in and around Tiananmen 
Square, for example, in 1989, the hagiography of that era is 
that the valiant students were standing up to the government, 
which mowed them down.
    But I think--and I said so at the time and shortly 
afterward--what really got the government to exercise the most 
violent force was when Workers Autonomous Federations started 
organizing. They were much more worried. Twenty-two year-olds 
at Peking University have been making trouble since the early 
1900s, and that's something that they just take as a kind of 
rite of spring. What really got the leadership worried was that 
when those workers groups started mobilizing, first in Beijing, 
later in Shanghai and other places, and threatened to really 
bring down the system and completely undercut the legitimacy of 
the Communist Party claiming to be the vanguard of the 
proletariat, that's when the government called out the troops.
    Ms. Oldham-Moore. Thank you, Jim.
    Doug Grob, you had a question?
    Mr. Grob. Thank you. First, I'd like to ask our panelists 
to comment on the role of the press in this process, and the 
potential pitfalls and hazards of covering the issue. Second, 
what should the new administration, and European and other 
foreign governments as well, say or do to leverage fully the 
effectiveness of this process? Ellen, if you could speak on 
that first. Thank you.
    Ms. Bork. I think the main problem is taking--how do I put 
this--the willingness to exact consequences for abuses. Any 
particular process may have flaws or may face a certain kind of 
resistance from the Chinese leadership. What's lacking is a 
kind of sense that this is all leading to something. There's a 
very important role for the press to play.
    Again, sort of playing back on my analogy to the earlier 
era, reading accounts of Helsinki Review Commission meetings, 
it's quite extraordinary how consequential these were. At the 
time no one thought the Soviets were going to immediately react 
and agree, but they became a focal point for real pressure and 
real expectations. I don't think at this stage we have those 
expectations for China. I can only hope that that begins to 
change, that this and other things like it become less of an 
empty exercise in the engagement process. So the best thing 
that could happen for a new administration would be a kind of a 
shift in the view of China and the way it will reform, which I 
think at the moment is really very stale, very--what's the 
word? Inert.
    Ms. Oldham-Moore. Thank you.
    Any other questions from the audience? Anybody? [No 
response]. Steve Marshall, please.
    Mr. Marshall. I'm Steve Marshall and I cover Tibetan issues 
for the CECC. I'd like to address a question to Xiaorong Li and 
Ellen Bork. Article 18 of the Charter is titled, ``A Federated 
Republic.'' In the text, it endorses democracy and specifically 
mentions Taiwan, Hong Kong, and Macao. The article also brings 
up ethnic issues and says, ``We should approach disputes in the 
national-minority areas of China with an open mind, seeking 
ways to find a workable framework within which all ethnic and 
religious groups can flourish.'' This seems to be a fairly 
obvious reference to Tibetans and Uyghurs, but the Charter 
doesn't mention them by name anywhere. What are your thoughts 
on this? Would mentioning the issues specifically have been too 
detailed to suit the Charter's broader, more sweeping focus? 
Or, in the view of the drafters, in Chinese eyes, could these 
issues have been too sensitive, too divisive among Chinese 
people to bring up, but advocating for democracy and redrafting 
the Constitution were not? Thank you.
    Ms. Li. Well, nobody can speak for the mind of Charter 08 
signatories. Just from the observer's point of view, proposal 
No. 19 in Charter 08 is one of the most contentious proposals. 
There is an unconfirmed report on the Internet that President 
Hu Jintao actually made some comments on this proposal, 
expressing worries about its ``separatist'' overtone. This 
worry could have been behind all the heightened police 
crackdowns on Charter 08 signatories. I think, from what I 
gather, the thinking behind not mentioning Tibet, Uyghur, or 
Taiwan specifically was a strategic consideration--not to be 
too confrontational or provocative. The idea was to allow 
different regions to develop and democratize and then negotiate 
on the basis of mutual respect some kind of federal government 
that allows regional differences. In the proposal about 
religious freedom, there is also a reference to ``non-
government religion'' instead of mentioning Falun Gong. This is 
also a compromise. The drafters want to seek endorsement from 
as broad a range of people as possible, and those compromises 
on terminology, I think, are deliberate.
    What you get is a text that strikes a very moderate tone of 
voice, uses a very calm voice, and speaks with graceful 
language in Chinese. The views are rationally reasoned. I think 
that this explains the fact, if you look at the first batch of 
303 signatories, they're from many walks of life, with a lot of 
very prominent and well-respected figures in the Chinese 
society, both outside and inside the government. It has broad 
appeals. It mostly reiterates what is in the Chinese 
Constitution, but it does make what might strike the Chinese 
leaders as ``radical'' or ``sensitive'' ideas. For example, 
there's a reference to replacing the One Party rule. These 
things are bound to make the authorities nervous.
    Ms. Oldham-Moore. Ellen, please? Just to frame it as I 
don't know if people in the back heard: the Charter 08 platform 
or language included language on ethnic minorities, and 
pressure is being placed right now on Charter 08 signatories to 
that document.
    Ellen, please?
    Ms. Bork. I don't have much to add to Xiaorong's careful 
analysis, except to be struck that even though there are 
compromises in language, even though there are sensitivities 
that were probably taken into account in the formulation and 
the seeking of signatures, it is nevertheless moving to see the 
Chinese from all walks of life taking a courageous stand, and 
attempting to deal with such sensitive issues, particularly 
that relate to ethnic minorities and divisions of the country.
    It reminds me also that so many of the signers of Charter 
08 also signed the letter after last year's Tibetan protests 
urging tolerance and dialogue with the Dalai Lama. I see these 
sorts of efforts to deal with questions of minorities and race, 
as like a civil rights movement motivated by the courage to 
speak about things notwithstanding the consequences and 
notwithstanding the taboos in their society.
    Ms. Oldham-Moore. Thank you.
    Jim, you'll have the last word.
    Mr. Feinerman. Well, I don't know if I deserve it on this 
particular issue. But one thing that does strike me about 
Charter 08 -- and I just want to commend to you Perry Link's 
translation. He and I have worked on a number of translation 
projects over the years, starting with the work of Liu Binyan, 
the famous journalist who wrote about China in the 1950s and 
the 1970s. But I think that what struck me most about this, and 
you can see there's either a ``glass half full'' or ``glass 
half empty,'' is that on the one hand, Chinese intellectuals, 
particularly those who are not from ethnic minority backgrounds 
or from the areas of China that are still regarded as 
irredentist claims like Taiwan, have tended in the past to be 
remarkably resistant, despite their human rights positions on 
everything else, to the idea of splitting China. They've tended 
to almost parrot, the Communist Party line about the 
inseparability of the Chinese homeland territory.
    I think what's really remarkable about Charter 08--this is 
the glass half full rather than half empty--is that even if you 
find that it's not everything you would have wished for as a 
representative, say, of the Tibetans or of Taiwan as a separate 
and independent country and government, it shows remarkable 
progress toward something that at least begins to open up the 
consideration of these issues in a way that was unthinkable 
even four or five years ago. This is one area where I think 
there's really been an incredibly dynamic change.
    It also explains why the government reaction has been so 
intense. I would just ask you to remember that the dress 
rehearsal for Tiananmen in June 1989 happened in Tibet in March 
1989. Do you know who was running Tibet in March 1989? Hu 
Jintao. I think that there's a direct line that connects the 
dots here with regard to why there's such an intense negative 
reaction to the things that are contained in Charter 08, 
including this article, which suggests just how powerful the 
arguments are and what the fearful 
response of the Chinese leadership is to the thought that other 
people might be taking up these ideas and seriously considering 
them, which it sees as one of the greatest threats, other than 
the criticism of the One Party system that's already been 
mentioned, to the continued dominance and legitimacy of 
Communist Party rule in the Mainland.
    Ms. Oldham-Moore. Thank you.
    For those of you who are interested in learning more about 
Charter 08, please visit our Web site. We have a lot up on it. 
We are actually going to close on time. Thank you, Felice Gaer, 
James Feinerman, Xiaorong Li, and Ellen Bork.
    Before we shut down the house, I just want to let you know, 
February 13, in this room, we will be having a roundtable on 
China's western region, Xinjiang, and the impact of security 
measures and propaganda campaigns on human rights conditions in 
that region after the Olympics. So, please join us then, and 
thank you so much for coming today.
    [Whereupon, at 11:29 a.m. the roundtable was concluded.]
                            A P P E N D I X

=======================================================================


                       Submission for the Record

                              ----------                              


 [From the New York Review of Books, Volume 56, Number 1, January 15, 
                                 2009]

                           China's Charter 08

 (Translated from the Chinese by Perry Link, submitted by Xiaorong Li)

    The document below, signed by more than two thousand Chinese 
citizens, was 
conceived and written in conscious admiration of the founding of 
Charter 77 in Czechoslovakia, where, in January 1977, more than two 
hundred Czech and Slovak intellectuals formed a

        loose, informal, and open association of people . . . united by 
        the will to strive individually and collectively for respect 
        for human and civil rights in our country and throughout the 
        world.

    The Chinese document calls not for ameliorative reform of the 
current political system but for an end to some of its essential 
features, including one-party rule, and their replacement with a system 
based on human rights and democracy.
    The prominent citizens who have signed the document are from both 
outside and inside the government, and include not only well-known 
dissidents and intellectuals, but also middle-level officials and rural 
leaders. They chose December 10, the anniversary of the Universal 
Declaration of Human Rights, as the day on which to express their 
political ideas and to outline their vision of a constitutional, 
democratic China. They want Charter 08 to serve as a blueprint for 
fundamental political change in China in the years to come. The signers 
of the document will form an informal group, open-ended in size but 
united by a determination to promote democratization and protection of 
human rights in China and beyond.

--Perry Link
                              i. foreword
    A hundred years have passed since the writing of China's first 
constitution. 2008 also marks the sixtieth anniversary of the 
promulgation of the ``Universal Declaration of Human Rights,'' the 
thirtieth anniversary of the appearance of the Democracy Wall in 
Beijing, and the tenth of China's signing of the International Covenant 
on Civil and Political Rights. We are approaching the twentieth 
anniversary of the 1989 Tiananmen massacre of pro-democracy student 
protesters. The Chinese people, who have endured human rights disasters 
and uncountable struggles across these same years, now include many who 
see clearly that freedom, equality, and human rights are universal 
values of humankind and that democracy and constitutional government 
are the fundamental framework for protecting these values.
    By departing from these values, the Chinese government's approach 
to ``modernization'' has proven disastrous. It has stripped people of 
their rights, destroyed their dignity, and corrupted normal human 
intercourse. So we ask: Where is China headed in the twenty-first 
century? Will it continue with ``modernization'' under authoritarian 
rule, or will it embrace universal human values, join the mainstream of 
civilized nations, and build a democratic system? There can be no 
avoiding these questions.
    The shock of the Western impact upon China in the nineteenth 
century laid bare a decadent authoritarian system and marked the 
beginning of what is often called ``the greatest changes in thousands 
of years'' for China. A ``self-strengthening movement'' followed, but 
this aimed simply at appropriating the technology to build gunboats and 
other Western material objects. China's humiliating naval defeat at the 
hands of Japan in 1895 only confirmed the obsolescence of China's 
system of government. The first attempts at modern political change 
came with the ill-fated summer of reforms in 1898, but these were 
cruelly crushed by ultraconservatives at China's imperial court. With 
the revolution of 1911, which inaugurated Asia's first republic, the 
authoritarian imperial system that had lasted for centuries was finally 
supposed to have been laid to rest. But social conflict inside our 
country and external pressures were to prevent it; China fell into a 
patchwork of warlord fiefdoms and the new republic became a fleeting 
dream.
    The failure of both ``self- strengthening'' and political 
renovation caused many of our forebears to reflect deeply on whether a 
``cultural illness'' was afflicting our country. This mood gave rise, 
during the May Fourth Movement of the late 1910s, to the championing of 
``science and democracy.'' Yet that effort, too, foundered as warlord 
chaos persisted and the Japanese invasion [beginning in Manchuria in 
1931] brought national crisis.
    Victory over Japan in 1945 offered one more chance for China to 
move toward modern government, but the Communist defeat of the 
Nationalists in the civil war thrust the nation into the abyss of 
totalitarianism. The ``new China'' that emerged in 1949 proclaimed that 
``the people are sovereign'' but in fact set up a system in which ``the 
Party is all-powerful.'' The Communist Party of China seized control of 
all organs of the state and all political, economic, and social 
resources, and, using these, has produced a long trail of human rights 
disasters, including, among many others, the Anti-Rightist Campaign 
(1957), the Great Leap Forward (1958--1960), the Cultural Revolution 
(1966--1969), the June Fourth [Tiananmen Square] Massacre (1989), and 
the current repression of all unauthorized religions and the 
suppression of the weiquan rights movement [a movement that aims to 
defend citizens' rights promulgated in the Chinese Constitution and to 
fight for human rights recognized by international conventions that the 
Chinese government has signed]. During all this, the Chinese people 
have paid a gargantuan price. Tens of millions have lost their lives, 
and several generations have seen their freedom, their happiness, and 
their human dignity cruelly trampled.
    During the last two decades of the twentieth century the government 
policy of ``Reform and Opening'' gave the Chinese people relief from 
the pervasive poverty and totalitarianism of the Mao Zedong era, and 
brought substantial increases in the wealth and living standards of 
many Chinese as well as a partial restoration of economic freedom and 
economic rights. Civil society began to grow, and popular calls for 
more rights and more political freedom have grown apace. As the ruling 
elite itself moved toward private ownership and the market economy, it 
began to shift from an outright rejection of ``rights'' to a partial 
acknowledgment of them.
    In 1998 the Chinese government signed two important international 
human rights conventions; in 2004 it amended its constitution to 
include the phrase ``respect and protect human rights''; and this year, 
2008, it has promised to promote a ``national human rights action 
plan.'' Unfortunately most of this political progress has extended no 
further than the paper on which it is written. The political reality, 
which is plain for anyone to see, is that China has many laws but no 
rule of law; it has a constitution but no constitutional government. 
The ruling elite continues to cling to its authoritarian power and 
fights off any move toward political change.
    The stultifying results are endemic official corruption, an 
undermining of the rule of law, weak human rights, decay in public 
ethics, crony capitalism, growing inequality between the wealthy and 
the poor, pillage of the natural environment as well as of the human 
and historical environments, and the exacerbation of a long list of 
social conflicts, especially, in recent times, a sharpening animosity 
between officials and ordinary people.
    As these conflicts and crises grow ever more intense, and as the 
ruling elite continues with impunity to crush and to strip away the 
rights of citizens to freedom, to property, and to the pursuit of 
happiness, we see the powerless in our society--the vulnerable groups, 
the people who have been suppressed and monitored, who have suffered 
cruelty and even torture, and who have had no adequate avenues for 
their protests, no courts to hear their pleas--becoming more militant 
and raising the possibility of a violent conflict of disastrous 
proportions. The decline of the current system has reached the point 
where change is no longer optional.
                     ii. our fundamental principles
    This is a historic moment for China, and our future hangs in the 
balance. In reviewing the political modernization process of the past 
hundred years or more, we reiterate and endorse basic universal values 
as follows:

    Freedom. Freedom is at the core of universal human values. Freedom 
of speech, freedom of the press, freedom of assembly, freedom of 
association, freedom in where to live, and the freedoms to strike, to 
demonstrate, and to protest, among others, are the forms that freedom 
takes. Without freedom, China will always remain far from civilized 
ideals.
    Human rights. Human rights are not bestowed by a state. Every 
person is born with inherent rights to dignity and freedom. The 
government exists for the protection of the human rights of its 
citizens. The exercise of state power must be authorized by the people. 
The succession of political disasters in China's recent history is a 
direct consequence of the ruling regime's disregard for human rights.
    Equality. The integrity, dignity, and freedom of every person--
regardless of social station, occupation, sex, economic condition, 
ethnicity, skin color, religion, or political belief--are the same as 
those of any other. Principles of equality before the law and equality 
of social, economic, cultural, civil, and political rights must be 
upheld.
    Republicanism. Republicanism, which holds that power should be 
balanced among different branches of government and competing interests 
should be served, resembles the traditional Chinese political ideal of 
``fairness in all under heaven.'' It allows different interest groups 
and social assemblies, and people with a variety of cultures and 
beliefs, to exercise democratic self-government and to deliberate in 
order to reach peaceful resolution of public questions on a basis of 
equal access to government and free and fair competition.
    Democracy. The most fundamental principles of democracy are that 
the people are sovereign and the people select their government. 
Democracy has these characteristics: (1) Political power begins with 
the people and the legitimacy of a regime derives from the people. (2) 
Political power is exercised through choices that the people make. (3) 
The holders of major official posts in government at all levels are 
determined through periodic competitive elections. (4) While honoring 
the will of the 
majority, the fundamental dignity, freedom, and human rights of 
minorities are protected. In short, democracy is a modern means for 
achieving government truly ``of the people, by the people, and for the 
people.''
    Constitutional rule. Constitutional rule is rule through a legal 
system and legal regulations to implement principles that are spelled 
out in a constitution. It means protecting the freedom and the rights 
of citizens, limiting and defining the scope of legitimate government 
power, and providing the administrative apparatus necessary to serve 
these ends.
                         iii. what we advocate
    Authoritarianism is in general decline throughout the world; in 
China, too, the era of emperors and overlords is on the way out. The 
time is arriving everywhere for citizens to be masters of states. For 
China the path that leads out of our current predicament is to divest 
ourselves of the authoritarian notion of reliance on an ``enlightened 
overlord'' or an ``honest official'' and to turn instead toward a 
system of liberties, democracy, and the rule of law, and toward 
fostering the consciousness of modern citizens who see rights as 
fundamental and participation as a duty. Accordingly, and in a spirit 
of this duty as responsible and constructive citizens, we offer the 
following recommendations on national governance, citizens' rights, and 
social development:

    1. A New Constitution. We should recast our present constitution, 
rescinding its provisions that contradict the principle that 
sovereignty resides with the people and turning it into a document that 
genuinely guarantees human rights, authorizes the exercise of public 
power, and serves as the legal underpinning of China's democratization. 
The constitution must be the highest law in the land, beyond violation 
by any individual, group, or political party.
    2. Separation of Powers. We should construct a modern government in 
which the separation of legislative, judicial, and executive power is 
guaranteed. We need an Administrative Law that defines the scope of 
government responsibility and 
prevents abuse of administrative power. Government should be 
responsible to taxpayers. Division of power between provincial 
governments and the central government should adhere to the principle 
that central powers are only those specifically granted by the 
constitution and all other powers belong to the local governments.
    3. Legislative Democracy. Members of legislative bodies at all 
levels should be chosen by direct election, and legislative democracy 
should observe just and impartial principles.
    4. An Independent Judiciary. The rule of law must be above the 
interests of any particular political party and judges must be 
independent. We need to establish a constitutional supreme court and 
institute procedures for constitutional review. As soon as possible, we 
should abolish all of the Committees on Political and Legal Affairs 
that now allow Communist Party officials at every level to decide 
politically sensitive cases in advance and out of court. We should 
strictly forbid the use of public offices for private purposes.
    5. Public Control of Public Servants. The military should be made 
answerable to the national government, not to a political party, and 
should be made more professional. Military personnel should swear 
allegiance to the constitution and remain nonpartisan. Political party 
organizations must be prohibited in the military. All public officials 
including police should serve as nonpartisans, and the current practice 
of favoring one political party in the hiring of public servants must 
end.
    6. Guarantee of Human Rights. There must be strict guarantees of 
human rights and respect for human dignity. There should be a Human 
Rights Committee, responsible to the highest legislative body, that 
will prevent the government from abusing public power in violation of 
human rights. A democratic and constitutional China especially must 
guarantee the personal freedom of citizens. No one should suffer 
illegal arrest, detention, arraignment, interrogation, or punishment. 
The system of ``Reeducation through Labor'' must be abolished.
    7. Election of Public Officials. There should be a comprehensive 
system of democratic elections based on ``one person, one vote.'' The 
direct election of administrative heads at the levels of county, city, 
province, and nation should be systematically implemented. The rights 
to hold periodic free elections and to participate in them as a citizen 
are inalienable.
    8. Rural--Urban Equality. The two-tier household registry system 
must be abolished. This system favors urban residents and harms rural 
residents. We should establish instead a system that gives every 
citizen the same constitutional rights and the same freedom to choose 
where to live.
    9. Freedom to Form Groups. The right of citizens to form groups 
must be guaranteed. The current system for registering nongovernment 
groups, which requires a group to be ``approved,'' should be replaced 
by a system in which a group simply registers itself. The formation of 
political parties should be governed by the constitution and the laws, 
which means that we must abolish the special privilege of one party to 
monopolize power and must guarantee principles of free and fair 
competition among political parties.
    10. Freedom to Assemble. The constitution provides that peaceful 
assembly, demonstration, protest, and freedom of expression are 
fundamental rights of a citizen. The ruling party and the government 
must not be permitted to subject these to illegal interference or 
unconstitutional obstruction.
    11. Freedom of Expression. We should make freedom of speech, 
freedom of the press, and academic freedom universal, thereby 
guaranteeing that citizens can be informed and can exercise their right 
of political supervision. These freedoms should be upheld by a Press 
Law that abolishes political restrictions on the press. The provision 
in the current Criminal Law that refers to ``the crime of incitement to 
subvert state power'' must be abolished. We should end the practice of 
viewing words as crimes.
    12. Freedom of Religion. We must guarantee freedom of religion and 
belief, and institute a separation of religion and state. There must be 
no governmental interference in peaceful religious activities. We 
should abolish any laws, regulations, or local rules that limit or 
suppress the religious freedom of citizens. We should abolish the 
current system that requires religious groups (and their places of 
worship) to get official approval in advance and substitute for it a 
system in which registry is optional and, for those who choose to 
register, automatic.
    13. Civic Education. In our schools we should abolish political 
curriculums and examinations that are designed to indoctrinate students 
in state ideology and to instill support for the rule of one party. We 
should replace them with civic education that advances universal values 
and citizens' rights, fosters civic consciousness, and promotes civic 
virtues that serve society.
    14. Protection of Private Property. We should establish and protect 
the right to private property and promote an economic system of free 
and fair markets. We should do away with government monopolies in 
commerce and industry and guarantee the freedom to start new 
enterprises. We should establish a Committee on State-Owned Property, 
reporting to the national legislature, that will monitor the transfer 
of state-owned enterprises to private ownership in a fair, competitive, 
and orderly manner. We should institute a land reform that promotes 
private ownership of land, guarantees the right to buy and sell land, 
and allows the true value of private property to be adequately 
reflected in the market.
    15. Financial and Tax Reform. We should establish a democratically 
regulated and accountable system of public finance that ensures the 
protection of taxpayer rights and that operates through legal 
procedures. We need a system by which public revenues that belong to a 
certain level of government--central, provincial, county or local--are 
controlled at that level. We need major tax reform that will abolish 
any unfair taxes, simplify the tax system, and spread the tax burden 
fairly. Government officials should not be able to raise taxes, or 
institute new ones, without public deliberation and the approval of a 
democratic assembly. We should reform the ownership system in order to 
encourage competition among a wider variety of market participants.
    16. Social Security. We should establish a fair and adequate social 
security system that covers all citizens and ensures basic access to 
education, health care, retirement security, and employment.
    17. Protection of the Environment. We need to protect the natural 
environment and to promote development in a way that is sustainable and 
responsible to our descendants and to the rest of humanity. This means 
insisting that the state and its officials at all levels not only do 
what they must do to achieve these goals, but also accept the 
supervision and participation of nongovernmental organizations.
    18. A Federated Republic. A democratic China should seek to act as 
a responsible major power contributing toward peace and development in 
the Asian Pacific region by approaching others in a spirit of equality 
and fairness. In Hong Kong and Macao, we should support the freedoms 
that already exist. With respect to Taiwan, we should declare our 
commitment to the principles of freedom and democracy and then, 
negotiating as equals and ready to compromise, seek a formula for 
peaceful unification. We should approach disputes in the national-
minority areas of China with an open mind, seeking ways to find a 
workable framework within which all ethnic and religious groups can 
flourish. We should aim ultimately at a federation of democratic 
communities of China.
    19. Truth in Reconciliation. We should restore the reputations of 
all people, including their family members, who suffered political 
stigma in the political campaigns of the past or who have been labeled 
as criminals because of their thought, speech, or faith. The state 
should pay reparations to these people. All political 
prisoners and prisoners of conscience must be released. There should be 
a Truth Investigation Commission charged with finding the facts about 
past injustices and atrocities, determining responsibility for them, 
upholding justice, and, on these bases, seeking social reconciliation.

    China, as a major nation of the world, as one of five permanent 
members of the United Nations Security Council, and as a member of the 
UN Council on Human Rights, should be contributing to peace for 
humankind and progress toward human rights. Unfortunately, we stand 
today as the only country among the major nations that remains mired in 
authoritarian politics. Our political system continues to produce human 
rights disasters and social crises, thereby not only constricting 
China's own development but also limiting the progress of all of human 
civilization. This must change, truly it must. The democratization of 
Chinese politics can be put off no longer.
    Accordingly, we dare to put civic spirit into practice by 
announcing Charter 08. We hope that our fellow citizens who feel a 
similar sense of crisis, responsibility, and mission, whether they are 
inside the government or not, and regardless of their social status, 
will set aside small differences to embrace the broad goals of this 
citizens' movement. Together we can work for major changes in Chinese 
society and for the rapid establishment of a free, democratic, and 
constitutional country. We can bring to reality the goals and ideals 
that our people have incessantly been seeking for more than a hundred 
years, and can bring a brilliant new chapter to Chinese civilization.

--Perry Link, December 18, 2008

                                 
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