As repeatedly affirmed by the General Affairs Council of the European Union, "the dialogue is an acceptable option only if enough progress is achieved and reflected on the ground" [1] .
We therefore call on the EU to duly address our concerns on November 13, and to make clear that the EU would draw the consequences of the absence of genuine progress in those fields. In that regard, we would like to recall that, according to the EU itself, "the fact that there is a human rights dialogue between the EU and a third country will not prevent the EU either from submitting a Resolution on the human rights situation in that country (…) nor will the fact that there is a human rights dialogue between the EU and a third country prevent the European Union from denouncing breaches of human rights in that country, inter alia in the appropriate international fora" [2] . Bearing that principle in mind, we believe that the EU should play a much more active role at the next session of the UN Commission on human rights with regard to the human rights situation in China, in order to put its acts in line with its declarations of principle.
By tabling a resolution on the human rights situation in China, the EU would draw the logical consequence of the lack of progress under the dialogue. More generally, we believe that public scrutiny necessary complements the dialogue in order to make it result-oriented.
We hope that you will take the present submission into account and remain available for any additional information.
Sincerely yours.
Qiang Xiao
Executive Director of HRIC
Sidiki Kaba
President of the FIDH
EU/China dialogue of November 13, 2002
BRIEFING NOTE
1. Death penalty
The death penalty continues to be used extensively, arbitrarily, and frequently as a result of political interference. Executions are carried out for non-violent crimes such as bribery, pimping, embezzlement, tax fraud, selling harmful foods, as well as drug offences and violent crimes. By the end of the year, with the limited records available, Amnesty International had recorded 4,015 death sentences and 2,468 executions, although the true figures were believed to be much higher. Execution was by shooting or lethal injection and sometimes occurred within hours of sentencing. Many of those sentenced are likely to have been tortured in order to extract "confessions". There are also persistent allegations of organs being harvested for transplantation from the bodies of the executed without consent. In the Autonomous Region of Xinjiang, Uighur political prisoners labelled as ’’separatists’’ or ’’terrorists’’ by the authorities continue. Most are executed after secret or summary trials where convictions are based on confessions extracted under torture. Xinjiang is the only region of China where political prisoners are known to have been executed in recent years
2. torture
China ratified the UN Convention against torture in 1988 ; that ratification was a progressive move. However, torture remains systemic and widespread : it potentially affects all individuals deprived of their liberty. The government fails to address major institutional deficiencies - including an overly narrow definition of torture and the absence of effective complaint mechanisms ; torture remains widespread in Tibet and Xinjiang and prisoners of conscience, such as Falun Gong practitioners, are particularly targeted. The judiciary relies on forced confessions to obtain convictions that might lead to the sentencing of innocents.
In its last Concluding observations on China, the UN Committee against torture (CAT) expressed its concerns about "the continuing allegations of serious incidents of torture, especially involving Tibetans and other national minorities" and about "the absence of a uniform and effective investigation mechanism to examine allegations of torture" (A/55/44, 9 May 2000, para 116 and 121).
The Committee recommended notably that China " incorporate in its domestic law a definition of torture that fully complies with the definition contained in the Convention" (para 123), " consider abolishing all forms of administrative detention" (para 127) and " ensure the prompt, thorough, effective and impartial investigation of all allegations of torture" (para 128).
The EU should urge China to implement those recommendations, and to allow the visit by the UN Special Rapporteur on Torture, in full respect of the Rapporteur’s own terms. China gave its agreement on that visit three years ago but no progress has been achieved since the Rapporteur transmitted its terms of reference to concretise that visit.
3. Freedom of expression, information and association
Hundreds of people are still serving substantial prison terms for the peaceful exercise of their fundamental rights and freedoms, and many more have been sentenced administratively to Re-education Through Labour (RTL), a form of detention qualified as arbitrary by the UN working group on arbitrary detention (see below). People calling for human rights improvements, from members of the China Democracy Party to Falun Gong practitioners, are systematically silenced. Efforts to organize independently, whether around issues of religion, politics, human rights, or labour are ruthlessly repressed.
The FIDH and HRIC are particularly concerned about the situation of Li Hai, a human rights defender detained in 1995 for documenting the cases of some 900 Beijing residents sentenced to long prison terms for their role in the 1989 demonstrations. In 1996, Li Hai was sentenced to a nine-year prison term for "prying into and gathering" state secrets. Li has suffered from serious medical problems in prison, and has not received appropriate medical treatment.
China continues to crush any attempt to set up legal political parties. China Democratic Party (CDP) founding members Xu Wenli, Wang Youcai and Qin Yongmin, who tried to register their Party legally with the Civil Affairs departments are currently undergoing heavy prison sentences. Xu Wenli was sentenced to 13 years in prison and three years’ deprivation of political rights. Wang Youcai was convicted of violating Article 106 of the Criminal Code and sentenced to 11 years in prison. His "crimes," according to the prosecution, included drafting the CDP declaration; being the prime mover of the CDP; intending to hold a CDP meeting in the form of a tea party; and sending 18 CDP documents abroad by electronic mail.
Qin Yongmin was sentenced after a two-and-a-half-hour trial on December 17, 1998, in the Wuhan People’s Intermediate Court. He was convicted of, among other things, "preparing to organize the CDP, editing [the newsletter] China Human Rights Watch, reporting on human rights to the United Nations and linking up with foreign hostile organizations." He was given a 12-year prison term.
Since July 1999, the Chinese government has forbidden the movement and has launched a repression against Falun Gong practitioners. They are victims of an increasing use of torture in order to force them to renounce the group and reeducation through labour is largely used in the brutal campaign against them.
According to Falun Gong themselves (Falun Dafa Information Centre), on 26 September 2002, 485 practitioners are dead since the persecution of Falun Gong in China began in 1999. According to the same source, 100,000 people would have been arbitrarily detained, 20,000 would have been sent to labour camps without trial (for terms up to 3 years), 500 would have been sentenced to extended jail terms (some up to 18 years) 1,000 healthy practitioners are being held in mental institutions [3] .
The FIDH and HRIC call for the abolishment of Reeducation Through Labour. It is worth to mention that the first workshop concerning China held in the framework of the Office of the High Commissioner for Human Rights’ technical cooperation program, in February 2001, focused on administrative detention. At that time, the High Commissioner had publicly called on the government to abolish RTL, following recommendations of the UN working group on arbitrary detention. Since 1998, Chinese authorities have announced their intention to pass a law to reform RTL, but no progress has been achieved in that regard.
Another method to curb dissenting voices is the use of forced incarceration of dissidents in mental (psychiatric) facilities, without a fair trial or an independent medical evaluation of their mental state, merely because they exercised their rights to freedom of expression and association.
One of the preoccupying issues in that regard is "China’s expansive definition of the key legal determinant of involuntary psychiatric committal, namely "social dangerousness." Whereas under international standards, the applicable scope of the "dangerousness" criterion is mainly restricted to situations where mentally ill people pose a direct physical danger either to themselves or to others, in China it is applied also to those, such as certain types of dissidents, whom the government regards as posing a political threat to "social order" [4] .
HRIC has documented a list of four victims of psychiatric abuse (see annex) who are still detained. The FIDH and HRIC call on the EU to address that issue on each occasion with the Chinese authorities, and ask for their immediate and unconditional release.
According to Reporters Sans Frontières, to date at least 11 journalists are in prison for having exercised their right to seek, receive and impart information. In addition, according to the same source, thirty one cyber-dissidents are currently in prison for having published information regarded by the authorities as too critical. The last cyber-dissident arrested is Chen Shaowen, who was detained since August 2002, and formally arrested in September for having published on the Internet "a lot of reactionary articles and essays". Chen has contributed regularly to several Chinese-language websites based abroad, writing articles about social inequalities, unemployment and the pitfalls of the legal system. He has also written several essays supporting democracy [5] .
"The promulgation in 2000 of a drastic legislation on the Internet was moreover the starting-point for an unprecedented crackdown, which led to the suspension of numerous web sites and of two search engines, Google and Altavista, a wave of closures of Internet bars - more than 2000 in June 2002 - and strict surveillance of Internet users" [6] .
According to recent information, keyword filtering has not replaced the block on previously banned sites, but has been added as an extra layer to selectively screen content on other sites [7] . That new technology allows the government to block select portions of the sites. As a consequence, if Google is now back on line in China, users can only access search results that meet the authorities’ approval [8] .
The Chinese authorities continue to deny workers the right to set up independent unions and arrest systematically the leaders of workers’ protests. Labour representatives Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming, who were arrested during the largest workers demonstration in March 2002 have been detained for more than six months, and to date, they have not been formally charged (On March 11 and 12, over 10,000 workers hit the streets in Liaoyang to demand that the government ensure their right to a decent standard of living).
The FIDH and HRIC are also concerned about the health of labour rights lawyer Xu Jian, who suffers from acute hepathisis. Xu Jian was arrested and sentenced to four years for allegedly "plotting to overthrow the socialist system and state power". A registered legal practitioner in Baotou, Inner-Mongolia, Xu Jian’s only crime was to have provided legal counselling to the workers at his office and via its hotline, as well as helping in filing labour dispute cases for arbitration and litigation. Xu’s activities were open and legal.
4. Ethnic Minorities
Since the September 11 attack, Beijing has sought to link its suppression of dissent in Xinjiang to the anti-terror campaign. In the treatment of minorities, the Chinese authorities do not distinguish between peaceful expression of dissent or cultural and religious identity and violent acts. Ethnic minorities who seek to develop their own national identity run the risk of being charged with engaging in an "act of splitting the country" even if their actions are entirely peaceful.
In the Uighur Autonomous Region of Xinjiang, the "terrorist" and "separatist" labels have mainly served to legitimate the suppression of any form of dissidence through the use of unrestrained force and violence. Members of minorities who advocate their national, cultural or religious identity are most likely to be viewed as engaging in an « act of splitting the country » and therefore, to be tried under the category of crimes of endangering state security defined by the Criminal Law. Discrimination in minority areas such as Xinjiang, Tibet and Inner Mongolia has been most manifest in the government’s effort to "eradicate separatist organizations" in the name of national unity, which has resulted in a variety of human rights abuses : arbitrary arrest and execution after summary trials to restrictions on freedom of expression, association and religion.
More generally, there are wide discrepancies in terms of economic status and living standards between ethnic minorities and the dominant Han Chinese. In recent years, Xinjang, Tibet and Inner Mongolia have seen a marked decline in the welfare of their indigenous inhabitants.
Because of their generally inferior economic conditions, their predominantly rural status and the dominance of the Chinese language at higher levels of education, minorities in the PRC are doubly disadvantaged in access to education. Overall, the dominance of the Chinese language-in the education system, in official affairs and in business-affects members of minorities in all areas of public and economic life, and their right to develop and use their own languages is not respected. The huge disparity between urban and rural regions in terms of funding allocated to education, particularly in the western regions of the PRC where are predominantly ethnic minorities, is another main reason why the condition of the schools and the quality of education they provide is inferior, as indicated by the high drop-out rate among minority children or the lower literacy rate among rural children compared with urban children.
Although some posts in the autonomous governments are set aside for minorities, top positions are usually reserved for Han cadres and Party officials. Minorities are not represented in the highest decision-making levels of the PRC, like the CCP Politburo. The process of selecting government representatives is dominated by CCP committees, and thus the Party, not the autonomous areas, set the priorities for the governments that rule there.
The long-term, highly controversial official strategy of encouraging immigration of Han Chinese into autonomous areas has resulted in increased economic discrimination; the unemployment rate among Uyghurs is about 70%, while that of Han Chinese in the region is less that 1%. Demographics in Xinjiang have shifted dramatically : in Xinjiang’s capital of Urumqi, Han Chinese comprise 80% of the 1.5 million inhabitants. In Inner Mongolia, Mongols are a minority in the whole region as a result of Han immigration.
In its last Concluding observations concerning China [9] , the CERD repeated its previous unimplemented recommendation "that the State party review its legislation to ensure the adoption of a definition of discrimination in accordance with the Convention" (para 241) and "ensure the penalization of racial discrimination, as well as access to effective protection and remedies (…) against all acts of racial discrimination" (para 242)
The Committee noted "that economic development in minority regions does not, ipso facto, entail the equal enjoyment of economic, social and cultural rights in accordance with article 5 (e) of the Convention" and required China to provide further information "regarding steps taken to ensure that the minority population benefits from the general economic growth. In this context, the State party is requested to take all appropriate measures to ensure that the local and regional cultures and traditions are also promoted and the rights of the populations fully respected" (A/56/18, para 243).
The Committee urged China ‘to review legislation and practices that may restrict the right of persons belonging to minorities to freedom of religion’ (para 244) and recommended "that the State party urgently ensure that children in all minority areas have the right to develop knowledge about their own language and culture as well as the Chinese, and that they are guaranteed equal opportunities, particularly with regard to access to higher education" (para 245).
The EU should call on China to implement those recommendations as well as to make the optional declaration under article 14 of the CERD, by which it would recognise the competence of the Committee to receive and consider communications from individuals.
5. Cooperation with the UN
China has ratified a number of international human rights conventions :
The CAT has been ratified in 1988, the ICCPR has been signed in 1998, but has not yet been ratified. The CEDAW was ratified in 1980, but China did not ratify the Optional Protocol allowing for individual complaints. The CERD was ratified in 1981, but no declaration has been made under art. 14 allowing for individual complaints. The CRC was ratified in 1992. The ICESCR was ratified in 2001, but with a reservation to Article 8.1 (a) of the Covenant (the right to form and join a trade union of one’s choice), referring to the contents of national legislation.
A number of important steps might still therefore be achieved by China with regard to commitments under the international human rights law.
In addition, ratification is the first step, but it must be followed by implementation and by full cooperation with the UN treaty bodies. In that regard, China has proven willingness to enter in dialogue with the UN committees through recent reporting. Yet, cooperation with UN treaty bodies is not satisfactory : as stressed above, the vast majority of the recommendations formulated by the UN treaty bodies have not been implemented by China.
Cooperation with UN thematic mechanisms is not satisfactory either. The Special Representative of the Secretary general on human rights defenders sent communications to the Chinese authorities concerning 18 individual cases of human rights defenders arrested because of their activities in favour of the defence of human rights [10] . To our knowledge, up to now she has received no answer to those communications.
As referred above, the UN Special Rapporteur on Torture has still not been allowed to visit China under its own terms of reference, in spite of the fact that China formally agreed on that visit three years ago…
In June 1999, the Special Rapporteur on freedom of opinion requested to visit China. To our knowledge, he has received no answer up to now.
6. refugees
In its last Concluding observations on China, the CERD expressed its concerns "that different standards of treatment are applied to Indo-Chinese asylum-seekers, on the one hand, and asylum-seekers of other national origins on the other, notably with regard to the right to work and education. Particular concern is expressed regarding the treatment of asylum-seekers from the People’s Democratic Republic of Korea, who are reportedly systematically refused asylum and returned, even in cases when they have been considered to be refugees by UNHCR. The Committee recommends that the State party take the necessary measures to ensure that all refugees and asylum-seekers receive equal treatment. To this end, the Committee recommends that the State party consider pursuing the adoption of formal legislative or administrative provisions in order to implement objective criteria for the determination of refugee status" ( ,para 246).
Although China has not fully acceded to very many international human rights agreements, it happens to be a party to the United Nations’ 1951 Convention on the Status of Refugees. That instrument defines a refugee as a person who, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and..., owing to such fear, is unwilling to return to it." The Convention prohibits the refoulement (forcible return) of such people to countries where they risk serious human rights violations. Article 33 puts it bluntly: "No Contracting State shall expel or return (`refouler’) a refugee…."
In addition, there is the Protocol Relating to the Status of Refugees (1967), Article Two of which obligates "the national authorities to co-operate with the Office of the United Nations High Commissioner for Refugees and… in particular [to] facilitate its duty of supervising the application of the provisions of the present Protocol." Governments must also provide the UNHCR with information concerning the condition of refugees.
There are also human rights treaties, declarations and instruments which, although primarily dealing with other subjects, do bear on the issue of refugees. Very important is the Convention Against Torture, which China ratified in 1988. Article 3 of that Convention provides that no government shall forcibly return "a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture". China is a Party to that Protocol since 1982.
Unfortunately, China has been largely neglecting its obligations under these instruments. People’s internationally guaranteed rights to consult with United Nations representatives or lodge asylum claims with the UNHCR have been denied. Indeed, the whole body of international law on the subject has been ignored, with large numbers of asylum seekers having been forced back to North Korea where they face various forms of persecution including torture. In 1999 the number returned was reported to be over 7,000 (about ten percent of the new arrivals). Since then, and especially this spring, the authorities have been stepping up their efforts to capture the asylum seekers. In March alone, China is believed to have sent back 5,000. By June it appeared that China had saturated the frontier with guards and patrols, reducing the number of people able to make it across.
7. International criminal court
China actively participated in the Preparatory Commission meetings, and sources indicate that China may consider ratification in the future.
In a statement at the Security Council on 10 July 2002, a representative of China remarked, "Although China is not yet a state party to the International Criminal Court, we support the independence, impartiality, and competence of the ICC that enjoys universality. We have continued to actively participate in the establishment of the ICC and will continue to follow closely its operation".
A number of countries in Southeast Asia are presently looking up at China as an example for their eventual ratification and implementation of the ICC Statute. The impact of China’s ratification would be very strong, especially now that the United States are trying to get countries in the region to sign bilateral agreements under article 98 of the Statute.
The FIDH and HRIC therefore ask the EU to raise the issue of signature and ratification of the ICC Statute, as well as of the agreements under art. 98.
ANNEXEs
ANNEX I
General Affairs Council, 2327th Council meeting, Brussels, 22-23 January 2001
In order to make the dialogue more focussed and easier to evaluate, the Council has decided to define the specific areas in which the European Union will be seeking progress through the dialogue process, and to make them public. They are [11] :
· ratification and implementation of the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights;
· cooperation with human rights mechanisms (visit by the Rapporteur on Torture, invitation to other Rapporteurs, follow-up to recommendations from conventional mechanisms and recommendations by Rapporteurs, implementation of the agreement with the Office of the High Commissioner for Human Rights);
· compliance with ECOSOC guarantees for the protection of those sentenced to death and restriction of the cases in which the death penalty can be imposed, in keeping with Article 6 of the Covenant on Civil and Political Rights; provision of statistics on use of the death penalty;
· reform of administrative detention; introduction of judicial supervision of procedures; respect for the right to a fair and impartial trial and for the rights of the defence;
· respect for the fundamental rights of all prisoners, including those arrested for membership of the political opposition, unofficial religious movements or other movements, such as the Falun Gong; progress on access to prisoners in Chinese prisons, including in the autonomous regions; constructive response to individual cases raised by the EU;
· untrammelled exercise of freedom of religion and belief, both public and private;
· respect for the right to organise;
· respect for cultural rights and religious freedoms in Tibet and Xinjiang, taking account of the recommendations of the committees of the United Nations Covenants, halt to the "patriotic education" campaign in Tibet, access for an independent delegation to the young Panchen Lama, Gedhun Chohekyi Nyima, who has been recognised by the Dalai Lama.
ANNEX II
Victims of Psychiatric abuse
Source : Human Rights in China, 23 May 2002.
WANG MIAOGEN, a labor activist, has been forcibly held in a psychiatric hospital since April 27, 1993. Wang was committed to the hospital, which is run by the Shanghai PSB, to prevent him from disrupting the Asian Games in May 1993. Because Wang has no family (he is an orphan) to advocate on his behalf, his conditions in the hospital are especially dire. Fellow activists who have visited Wang say he is held in filthy conditions and given inadequate food and water.
XING JIANDONG was incarcerated in Shanghai’s PSB-run Ankang Psychiatric Hospital on September 13, 1993. Xing was deported to China in August 1992 after a failed attempt to win political asylum in Australia. Xing was detained on September 7, 1993, outside the Australian Consulate in Shanghai, where he had staged a series of sit-ins to protest alleged violent mistreatment by Australian authorities during his detention there. First served with a seven-day administrative detention order, Xing was then forcibly committed. Xing was allegedly tied to a bed for three days and three nights, then locked up with mentally-disturbed patients. His current situation is unknown.
HUANG JINCHUN, a judge in Beihai, was reportedly put into a psychiatric hospital in November 1999 and forced to take narcotics for refusing to renounce his belief in Falungong. Huang was detained in September for joining hundreds of Falungong practitioners in Beijing to protest the government’s crackdown on the spiritual movement. He was fired from his job on November 8 for refusing to sever his ties with Falungong, and one week later two policemen took him from his home to the Longqianshan hospital in Liuzhou. Huang reportedly displayed no symptoms of mental illness either at work or after being sent to the hospital, but medical personnel gave him daily injections of a narcotic that left him sleepy and muddled.
WANG HONGXUE, who was active in a series of 1997 open letter campaigns calling for political reform, was threatened with psychiatric confinement in December 1997. Police summoned Wang’s wife and parents to the Bengbu City PSB in eastern Anhui Province and informed them that authorities believed Wang was suffering from schizophrenia. The officers threatened to place Wang in a psychiatric hospital, saying that they would make sure his employer - a textile factory infirmary - would pay for a long-term stay. Police also directly confronted Wang. Ultimately, he was not committed because his family refused to say he was mentally ill and because Wangmade his fear of psychiatric confinement public through HRIC. More recently, Wang was briefly detained in 1999 for his membership in the Anhui branch of the China Democracy Party.
[1]