I am confused. I thought I knew China well. After all, I was born in China and lived there until I left my parents to come to the United States for college. My memories of nearly twenty years of living in China and the periodic visits since I left are mostly happy. My parents are middle-income state employees who lived in a government-issued, Soviet-style apartment for almost their entire adult lives. Recently, like many other middle-class Chinese families, they bought a small townhouse in a newly developed suburban community and rented out the old apartment in the city to supplement their income. They no longer fide bicycles to work. Instead they bought a small, underpowered Toyota for the now-longer daily commute and baby it like any sixteen-year-old American does her first car. And like many young Americans, my sixty-year-old father is thinking about getting a bigger car with more horsepower and perhaps upgrading to a single-family house at some later time. My mother, on the other hand, seems less enthusiastic about yet more upgrades and more excited about getting to know her new neighbors. My parents are optimistic about their future and looking forward to their retirement. They, and many ordinary Chinese citizens like them, seem happy.
But almost a decade of living in the United States has exposed me to another China that I hardly recognize. According to the U.S. government, the Chinese people are living under a repressive authoritarian regime with a deplorable human rights record. (1) We Chinese have a government that routinely commits serious abuses against its own citizens, and due to the tight control the Chinese Communist Party ("CCP") has on state organs and the military, there is very little that the oppressed masses can do about it. (2) Even the American media, typically skeptical of the U.S. government, join in condemning China for human rights violations and social and economic problems, and paint an overwhelmingly negative image of China. (3)
Thus, like many other Chinese students studying in the United States, I am torn between the conflicting views. Like my American classmates in law school, I study and support freedom, democracy, the rule of law, and human rights. But I also resent the implied suggestion that my fellow Chinese citizens--resilient, content, and optimistic as many of them seem--are ignorant about their own servitude and must somehow be enlightened and freed. I struggle to reconcile my two competing perceptions of China: one, acquired from having grown up there and from having witnessed its transformation, that China is finally headed in the right direction, despite its earlier missteps, and has much to contribute to the world community; the other, acquired during my stay here in the United States, that China is a stubborn authoritarian state with little regard for its own citizens or the established international order that is headed on a collision course with the United States and the West. Are we Chinese blissfully blind to our own perils? Should we fight for human rights, the rule of law, and democracy--and if so, when and how? Is China the worst offender or a strong contender?
These are the questions that Professor Randall Peerenboom (4) sets out to answer from an American legal scholar's perspective in China Modernizes: Threat to the West or Model for the Rest. Peerenboom advances three main arguments in China Modernizes. (5) First, to more accurately assess China's performance in its quest for modernization, one must "plac[e] China within a broader comparative context" (p. 10). Through a careful analysis of empirical data, Peerenboom observes that China outperforms many other countries at a similar income level on almost all key indicators of well-being and human rights, with the sole exception of civil and political rights (p. 20). Second, the United States employs a double standard towards China on human rights issues, and this double standard is likely due to the international human rights regime's unjustified bias against nondemocracies and an undue emphasis on civil and political rights over social and economic rights (Chapter Five). Third, China may be following the same path as other East Asian countries, such as Japan and South Korea--China may eventually democratize, but not before it has reached a higher income level, and certainly not at the cost of jeopardizing social stability and economic growth (Chapters Seven through Nine). (6)
Peerenboom's comparative approach to evaluating China's human rights record exemplifies what I call the "contender" approach to human rights enforcement. Conceptualizing the more traditional approach to enforcement as the "offender" model, this Notice argues that the offender model should only be used to enforce jus cogens norms and that the overuse of the offender model enables the double standard in the enforcement of human rights that Peerenboom identifies. Part I first applauds Peerenboom's approach and his conclusion that China compares remarkably well with other countries in the same income class on most key indicators of human rights. Part I then develops the key principles of the offender and contender models. Drawing from the analogy between the offender model and the domestic criminal justice system, Part I concludes by suggesting that the offender model should be limited to only those well-defined and widely accepted core human rights, leaving other rights to be examined under the contender model. Part II shifts the focus to China's main accuser in the human rights context, the United States. Extending the analogy between the offender model and the criminal justice system, this Part supplies additional doctrinal support for Peerenboom's contention that the United States should abandon its double standard towards China and further suggests that the overbroad offender model currently used by the international human rights regime may have caused or exacerbated the problem of selective enforcement.
A few words on the purpose and relevance of this Notice may be in order here. As a Chinese who has spent a third of his life in the United States and appreciates all the hospitality, generosity, and education he has received during his stay in this country, I am perhaps among the most pro-American--and the most receptive to the liberal version of human rights, rule-of-law, and democracy ideals--of my generation. Yet as will be apparent from this Notice, I also question the desirability and feasibility of democracy in China in the immediate future, dispute that the liberal conception of human rights should be the universal standard, and remain critical of the continued hegemony and arrogance practiced by the U.S. government in international affairs. Thus, although the American political and human rights hardliners may be quick to dismiss Peerenboom's position as too sympathetic to the Chinese government and accuse him of being an "apologist[] for dictators," (7) remain skeptical of their cause and approach. I also wonder whether these hardliners will have an even more difficult time persuading the Chinese leadership or proving their case to the typical Chinese citizen.
I. ASSESSING CHINA'S HUMAN RIGHTS PERFORMANCE
Far from being a CCP apologist, Peerenboom does not gloss over China's problems; he spends a good bit of his book detailing the deficiencies in China's human rights record and its legal system. (8) But China Modernizes goes beyond the conventional criticism leveled against China by human rights activists and the U.S. government. Peerenboom critically analyzes some of these common accusations and argues that while some of them are justified, others may be exaggerated and unwarranted, especially when China's performance is compared to similar countries. Sections I.A and I.B discuss Peerenboom's assessment of China's human rights record in the stand-alone and comparative contexts respectively. Section I.C proposes two models, offender and contender, to characterize the dichotomous approaches to China's human rights performance and makes a preliminary inquiry into the proper balance between the two.
A. Critiquing the Critics: The Stand-Alone Context
From the start, Peerenboom takes a stance decidedly different from the prevailing skeptics of China's human rights policy. Instead of simply dismissing China's official statements as government propaganda, he contends that while these government statements and reports tend to be selective and biased, they nevertheless present one side of the picture (p. 82). The main tenets of China's official response to Western criticism on China's human rights record, Peerenboom argues, are normatively and factually defensible. For example, the government's position that interpretation and implementation of human rights depends on local circumstances is "unimpeachable as a descriptive claim and as a legal claim" (p. 85). Its insistence on prioritizing subsistence and stability over civil and political rights has popular support among Chinese citizens and among the majority of citizens in other developing countries (pp. 85-86). In addition, its objection to the interference in its domestic affairs and sovereignty in the name of human rights--often by countries with severe human rights problems of their own--is not without foundation and is shared by other countries (pp. 86-90).
As Peerenboom proceeds to examine China's human rights record in detail, he groups his analysis into two broad categories--physical integrity and civil and political rights (Chapter Three) and social and economic rights (Chapter Four)--that loosely track the first- and second-generation rights, respectively, under Karel Vasak's theory of three generations of human rights. (9) With respect to first-generation human rights, Peerenboom contends that China does not deserve the dismal rating it consistently receives on physical integrity (p. 83), although its low score on civil and political rights, reflected in its placement in the bottom tenth percentile of the World Bank's voice-and-accountability index, is accurate (p. 83). With respect to second-generation human rights, Peerenboom argues that in light of its limited resources, China does relatively well in most areas of social and economic rights (pp. 158-62): its standard of living has dramatically improved over the past decades (pp. 129-32), access to health care has broadened (p. 132), and the illiteracy rate has decreased (p. 133). Moreover, despite China's dramatic increase in wealth, its level of income disparity has remained virtually constant from 1995 to 2002 (p. 131). The "stunning rise in wealth that has lifted over 150 million people out of poverty" is remarkable in itself (p. 129), and even more so in the comparative context: Peerenboom notes that China outperforms India, another fast-growing, low-income country, on all measures of social and economic rights, including infant mortality, life expectancy, and primary-school enrollment (p. 130).
B. Comparing the Comparables: The Broader Comparative Context
The comparison between China and India is one example of the "broader comparative context" Peerenboom advocates in China Modernizes. In this "broader comparative context," he argues, one should compare China's human rights record primarily with those of countries at a similar income level. (10) Instead of comparing China's human rights record against "idealized accounts of good governance and rule of law that no country lives up to, or the normatively inspiring yet frequently violated idealistic standards championed by human rights activists"--which, as Peerenboom puts it, is akin to "compar[ing] apples and oranges"--China Modernizes focuses on "demonstrat[ing] how China does relative to the actual performance of other countries" (p. 10). Peerenboom argues that when comparing China with the actual performance of other countries, the proper benchmark is not "the record and performance of much wealthier countries" but rather that of "the average country in its income class" (p. 11). This is because "[p]erformance on human rights standards, including measures of civil and political rights, and other indicia of human well-being, is highly correlated with wealth"--a claim that Peerenboom convincingly establishes with empirical analysis. (11) Peerenboom concludes, "As countries become wealthier, they generally protect all rights better" (p. 40).
When examined in this new comparative context, China is a strong performer in its own income class in most areas of human rights, the rule of law, and quality of governance. Peerenboom observes, "China's performance across a range of variables.., is on the whole demonstrably superior to the performance of most African, Middle Eastern, and Latin American countries with which it is often lumped as a problem case" (p. 20). China's performance on economic rights is "particularly [impressive] in light of the disappointing performance of so many other developing countries" (p. 19). On most major indicators of human rights and well-being (except civil and political rights), "China outperforms the average country in its income class" (p. 20). China's quality of governance, as reflected in the World Bank good-governance indicators, is superior to, or at least as good as, the average country in its income class, including many democracies (p. 184).
In addition to a country's income level, there is a second dimension in Peerenboom's comparative context: cultural and regional influences. While income level alone does not explain China's low score on civil and political rights, cultural and regional influences help account for this anomaly. After comparing the East Asian region with other countries on a variety of rights indicators, Peerenboom concludes that "East Asian countries with a Confucian influence, even if democratic, tend to do poorly relative to income level on civil and political rights" (p. 43). Countries such as Japan, Singapore, and Vietnam "all underperform relative to income" (p. 43). China, where Confucianism originated and maintains a strong influence, is no exception. Viewed in this cultural-regional comparative context, China's poor performance on civil and political rights becomes more explainable, if not excusable.
C. Offender or Contender: The Competing Approaches
Peerenboom's generally positive assessment of China's human rights performance in the comparative context and the prevailing criticism leveled against China represent two competing approaches in measuring a country's performance on human rights issues: one is what I will call the offender model, used by the U.S. government and Western human rights activists; the other is the contender model, embodied in Peerenboom's "broader comparative context" (12) and advocated by China Modernizes.
The offender model compares a country's human rights performance with a fixed set of rules to determine whether the rules have been violated. This approach is analogous to the criminal justice system, which mandates a common set of minimum standards of conduct for all members of society and punishes those who fail to adhere to them. Many hallmarks of the domestic criminal justice system are also present in today's international human rights regime: international human rights are often regarded as "standards of conduct" for states with respect to their own citizens; (13) states that fall short of these standards will receive various "punishments," typically by way of an annual "name and shame" process in the United Nations Human Rights Commission or, in limited circumstances, economic sanctions. (14)
The contender model differs from the offender model in two significant ways. First, it does not prescribe a fixed set of standards of conduct that all must meet or be punished. Rather, it compares the performance of each participant against that of the others and rewards the superior performer. Second, it recognizes that performance is often critically affected by the characteristics of the contestants and accommodates this fact by grouping and comparing contestants only with others of similar attributes. An analogy for this approach is any kind of competitive sport in which contestants compete against others of similar age, gender, or weight and are rewarded for superior performance. Peerenboom's "broader comparative context," under which one assesses a country's human rights performance relative to that of countries at similar income levels, falls squarely within the contender model.
The offender-contender framework is critical to a proper understanding of Peerenboom's position and his arguments in China Modernizes. Without appreciating Peerenboom's implicit argument that China is better treated as a contender rather than an offender, a believer of the offender model will likely find Peerenboom's "broader comparative context" argument utterly unconvincing. Those who reject the contender model might ask why China's human rights record should be explainable or even excusable by its status as a low-income country or its cultural heritage. The analogy between the offender model and the criminal justice system appears to support their position: crime, like human rights violations, is also highly correlated with the offender's income, (15) but in the criminal justice system, wealth, or the lack thereof, is almost never an excuse for crime. (16) Just like the lack of any other means of income is never an excuse for one to engage in theft, robbery, or prostitution, a country's low-income status does not make human rights violations against its own citizens any less reprehensible or punishable. Similarly, an offender's cultural, regional, and political background, under this view, should have little bearing on the determination of its guilt or punishment because by definition, the minimum standards of conduct, both in the criminal-justice context and in the international human rights context, reflect universal values and must be observed by all members of the community regardless of their personal beliefs or practices. (17) Therefore, if Peerenboom's argument is only read to mean that China's human rights violations are no worse than many other low-income countries or countries with similar cultural backgrounds, appeals to proponents of the offender model are likely to fall on deaf ears.
Peerenboom's "broader comparative context" argument should be more appropriately understood, first and foremost, as a challenge to the international human rights regime's overreliance on the offender model. By criticizing the use of idealized accounts of human rights or the record of wealthier countries as the universal benchmark for human rights protection, Peerenboom questions whether the standards of conduct currently in use under the offender model, supposedly minimal in theory, have been stretched unrealistically broadly in practice. Using standard criminal law terminology, this amounts to a challenge to overcriminalization in the realm of international conduct regulation. This challenge to overcriminalization forms the basis of both Peerenboom's argument that China's human rights record is more properly assessed in comparison with countries at similar income levels and his conclusion that China is a strong contender in its own right when viewed in this "broader comparative context."
Thus the issue is not whether China is more properly examined in a stand-alone context or compared to countries of similar income. Rather, the debate is more properly understood as one between the offender model and the contender model. Both models have normative appeal and the ideal approach to dealing with human rights issues should probably be a combination of both. At one end of the spectrum lie certain violations of core human rights, such as genocide and torture, that offend the basic human dignity universally cherished by all nations and should be examined under the offender model. Toward the other end of the spectrum, however, are rights where performance is highly correlated with a country's wealth and affected by its cultural heritage and political institutions. (18) Performance in these areas of human rights should be examined under the contender model, which compares nations of comparable abilities and rewards leaders in each group instead of punishing or shaming those who fall behind.
In theory, it is easy to understand that at some point along the axis of conduct regulation, the offender model stops being a justifiable tool to deter violations and the contender model begins to be the preferred method to encourage compliance. But in practice it is difficult to determine where the stick should end and where the carrot should begin. The prevailing criticism that portrays China as the worst offender of human rights presupposes a broad definition of the core rights; it applies the offender model to almost all rights ranging from civil and political rights to social and economic rights and seeks to stigmatize those whose conduct falls short of "the normatively inspiring yet frequently violated idealistic standards"
No comments:
Post a Comment