Xi Jinping at Fourth Plenum, Beijing

Introduction

From 20 to 23 October, the Fourth Plenum of the Central Committee of the Communist Party of China convened in Beijing. The fact that the meeting was devoted exclusively to the Rule of Law was remarkable by itself. Below we will explain why the outcomes of the meeting are so important. We will do so after having explained the status of the 'Fourth Plenum'.  

The status of a Fourth Plenum

Since 1982, when the Constitution abolished lifelong tenure for leadership positions, Communist Party officials serve for a five year period. Since 1978, the Central Committee of the CPC has consistently held seven meetings, called 'plenums' during this term of office. Traditionally the First and Second plenums are devoted to filling the positions within the CPC and state organs.

The Third Plenum traditionally lays out the “big agenda” to be pursued by the Central Committee. Not surprisingly, Third Plenums have traditionally served as significant turning points for the course of the CPC. Thus, in 1978, the Third Plenum of 11^th Central Committee decided to put an end to “mass class struggle” and to “make China a modern, powerful socialist country before the end of this century”. In 1993, the Third Plenum of 14^th Central Committee formally endorsed the “socialist market economy”.

Historically, the Fourth Plenum focuses on strategies to be adopted in order to achieve the goals that have been set by the Third Plenum. Accordingly, the Fourth Plenum of the 11^th Central Committee in 1979 adopted a number of important rural and land reforms. The Fourth Plenum of the14^th Central Committee in 1994 discussed how to strengthen the CPC’s leadership role during the introduction of a socialist market economy.

On 12 November 2013, the Third Plenum of the 18^th Central Committee adopted a reform agenda which listed 60 items aimed at deepening the reform. The Final Communiqué of the Third Plenum contains references to the traditional ideological sources, such as Marxism-Leninism, Mao Zedong Thought, and Deng Xiaoping Theory, but it stopped short of presenting the new philosophy of the Xi Jinping Administration. Therefore, the Fourth Plenum was expected not only to provide guidance on the implementation of the reform agenda, but also to lay out the ideology of General secretary Xi Jinping to guide the CPC. 

Embracing the Rule of Law

According to the Communiqué of the Fourth Plenum, the target of the Central Committee is  to build a country 'under the socialist rule of law'. This should lead to 'administration by law' and a 'law-abiding government'. This language goes one important step further that that used by the 15th Central Committee in 1997, which referred to 'building a socialist country ruled by law'. That language was mirrored in Article 5 of the Chinese Constitution, adopted in 1999, which stipulates that the People's Republic of China implements the rule of law and builds a socialist country ruled by law. 

According to the Communiqué, the Central Committee has committed itself to forming a system serving 'the socialist rule of law with Chinese characteristics'. Although it has undoubtedly been motivated by the intrinsic value of the Rule of Law concept, it is likely that other considerations also were taken into account. Thus, the Xi Jinping Administration has started a very visible and wide-ranging anti-corruption campaign, which targets both the 'tigers and the flies', i.e. both high- and low-ranking officials. This campaign can now be founded on the Rule of Law which will provide it with additional legitimacy.

In addition, it is clear that the Administration is keen on maintaining or even boosting economic growth figures on which its legitimacy depends to a certain extent. Embracing the Rule of Law will contribute to achieving this aim, since legal stability benefits the economy: it provides the legal certainty which people need to invest. The positive effect is not limited to Chinese companies but also extends to foreign owned ones, which will be even more eager to set up business in China. Thus, Charles Powell, who was Mrs. Thacher's foreign policy advisor and who now chairs the China-Britain Business Council, welcomed the decisions of the Fourth Plenum on the Rule of Law as being good for business.  

The Rule of Law may also assist the central government in keeping the local authorities in check and this too has an economic dimension. Local governments play a very important role in China also in the economic area. During the Deng era, their autonomy, also in fiscal matters, was enhanced, to unleash their economic potential. Consequently, the activities of local authorities increasingly have an impact on the economy, be it by running their own companies, by levying taxes, or by incurring debt. They also make a considerable contribution  to the revenue of the central government. The central government has some leverage through the promotion system of officials, but using the Constitution and the law as a correctional mechanism provides an additional safety valve.

The Constitution as core

The Central Committee has given centre stage to the Constitution. According to the Communiqué, the Constitution should be regarded as the core of the socialist legal system with Chinese characteristics. In order to realise the Rule of Law, the country should be ruled in line with the Constitution. This does not mean, however, that the Constitution will become justiciable or that China is about to introduce judicial review.

Currently there are two models for reviewing the constitutionality of legislation, i.e. judicial and political review. Judicial review was introduced by the U.S. Supreme Court in the well-known Marbury v. Madison case in 1803. Under this model judges are allowed to consider whether legislation is conformity with the Constitution and to declare it null and void when it fails that test. American style judicial review has spread to other parts of the world, especially to Europe. Political review is exercised by a body which is part of or set up by the legislature, which still has the final say. Thus, although the Constitutional Council in France can declare an act to be contrary to the Constitution, it is up to Parliament to translate this decision into a new law.    

Under China's current constitutional system, the introduction of judicial review is highly unlikely. The leading role of the CPC as guaranteed by the Constitution does not sit well with the Western concept of separation of powers or the authority of judges to overturn legislation. The 2001 Qi Yuling case, in which the Supreme People's Court proved willing to apply the right to education as guaranteed by the Constitution in a case brought against a public school, was regarded by some commentators as heralding a new era. However, the case was overturned by the Supreme People's Court at the end of 2008, and there are no signs that the Court is about to change track.

As the Communiqué makes clear, it will remain the task of the National People's Congress and its Standing Committee to supervise the implementation of the Constitution. However, according to the Communiqué, they are supposed to do a better job at it. Words matter in China, and it is a pubic secret that policymakers in Beijing are looking for ways to amply the political review of constitutionality of legislation, while leaving the power in the hands of the National People's Congress and its Standing Committee. Creating a review committee within the National People's Congress, comparable to the Comité Constitutionnel which was created by the Constitution of the Fourth French Republic, might be an option. The Comité had the authority to declare that a bill could only be adopted if the Constitution would be amended accordingly. The plenary Parliament was not formally bound by that decision, but it had a lot of explaining to do if it would decide to overrule it.

Interestingly, just after the Fourth Plenum had ended, a group of scholars led by Prof. Han Dayun of Renmin University in Beijing published an expert opinion on the interpretation of the Constitution. They suggest to enable all state organs, as well as all social organisations, enterprises, non-profit institutions and individuals to file a request with the Standing Committee of the National People's Congress for an interpretation of the Constitution. This suggestion, which leaves the political primacy of the National People's Congress and its Standing Committee intact, seems to have been inspired by the Chinese petition system, or xinfang, which dates back millennia. The publication of the expert opinion, which is based on the outcomes of a research project commissioned by the Justice Ministry in 2005, was very well timed. 

Letter from Ethiopia

Dear Reader

Cape Town, South Africa

I recently had the pleasure of visiting Ethiopia and revisiting South Africa, the country of my birth. I had never been to Ethiopia before and previous to that, heard many remarkable and wonderful things about it. Now that I have been there, I can safely vouch that it is remarkable country, rich in history, culture and tradition, with a delicious cuisine and great coffee. Most importantly, I found Ethiopians to be peace loving, and a warm and friendly people, and Ethiopia, a very safe place to be in. The lessons I learnt about and in Ethiopia will remain with me for a lifetime and has added to my development as a person, both personally and professionally. I am grateful, therefore, in this short way, to share my experiences with you.                                  

During January to April 2014, I conducted field research at African Union in Addis Ababa and at the Pan-African Parliament, an organ of the African Union in Midrand, South Africa. I chose to conduct interviews at both organizations mainly because I believed that they would better inform my insights on the legitimacy crisis currently characterizing the relationship between the International Criminal Court (ICC) and the African Union (AU), a topic on which my research is based. Some of the arguments in favor of this position and also advocated for by the African Union is that the Court is biased because all its prosecutions are against Africans.

The ICC, on the other hand, maintains that as an institution set up to combat impunity, it is keeping to its mandate by advocating for justice and victims needs in Africa, which remain inadequately addressed by some African leaders. While many of these assertions may or may not be true, there is a perception that the rift is widening between the Court and its African constituency.

Ethiopian Coffee Ceremony

To test this hypothesis, I decided that it would be best if I spent some time on the ground at the African Union, to see if this was indeed the case. The African Union is the spokesperson of African States and its relationship with the Court, from my perspective, should be explored more broadly than solely from a purely legal perspective, given the context in which it operates, namely more from a political vantage point. Similarly, the ICC, although established as a judicial institution and acknowledging itself as such, nonetheless functions in a politically charged, global environment. Taking these contexts into account, I have therefore decided to approach my research from both a legal and social science perspective, hoping to be better informed on the underlying issues, which needs uncovering.

The research methods I used during my travels were thus qualitative in nature, comprising participant observation and semi structured research interviews. Access to most respondents was secured through the snowball technique, a technique, which surprisingly was easy to accomplish at both institutions, where a very friendly and warm demeanor met me.

AU Headquarters, Addis Ababa, Ethiopia

My initial observations of the AU were impressive, and the main thing that stood out, was the new AU headquarters, costing roughly around 200 million dollars, considered a generous gift from the Chinese government. This magnanimous gift from the Chinese symbolizes the extent of the newfound friendship China and Africa share and serves as a precursor to future investment and future relations between both countries. Aside from the impressive AU architecture, the highlight of my stay was attending the 22^nd AU Summit in Addis, with this year’s theme, focusing on Agriculture and Food Security In Africa. The discussions were stimulating ranging from conflict prevention, climate control, illegal exploitation of resources, and increased agricultural sustenance for the optimal development of a prosperous Africa in the coming years. 

In order, to tackle its core problem of African disunity, the AU has focused strongly on African culture, heritage and identity through the promotion of an ‘African Renaissance’ coined by the former President of South Africa, Thabo Mbeki, an intellectual and influential player within AU circles. The African Renaissance is aimed at fostering integration amongst African States, by forging a common African identity and is of particular relevance to the AU, because it contributes to strengthening the institution vocally, so as to speak with one voice, on vital issues of concern to Africa. Given its 54 member states, it is no easy task to mobilize and motivate States to unite on pertinent issues of particular relevance, especially when each State has its own political agenda and varied interests to take into account.

The AU, also, as an organization, focuses on security, and uses the full range of diplomatic and coercive measures available to it, to meet its mandate of fostering peace and security on the African continent. Given the severity of conflicts currently taking place in South Sudan, Mali and Central African Republic, peace concerns are pressing on the continent, and it is important to note that development of the African continent can only take place if conflicts are curbed and peace prevails. Peace, in other words, engenders development and development economic and social prosperity. It is therefore crucial for the AU to succeed in this part of its mandate if it is to be considered a legitimate regional institution in Africa and the world.                                                                 

Peace and Security Meeting AU Summit

These insights, I found are rather relevant because they relate to current ICC prosecutions, which some say, have had a destabilizing effect in certain regions in Africa, and impact larger concerns, such as peace efforts in Africa.  These and more related issues are explored in deeper detail in my thesis. So, whilst issues of AU and ICC discord go deeper than merely the ICC targeting Africa and the “race hunting of Africans”, I am optimistic that there is ample room for dialogue and improvement on this front. It is to this end that I am hoping that my research will contribute, and represent a balanced view of the issues at play, from the perspectives of both key players. I am grateful to report that a new chapter awaits me at the ICC where I will undertake a Visiting Professionals Programme for a period of three months, so as to be able to gauge the ICC’s perspective on issues of concern between itself and the AU. I look forward to report to you on my experiences at the Court, and the developments of my research, at a later stage. 

Yours sincerely,

Ingrid Roestenburg Morgan

Posted By Ingrid Roestenburg Morgan (Extracted from School of Human Rights Research Newsletter Fall 2014 available online at http://www.schoolofhumanrights.org/fileadmin/user_upload/PDF_files/Newsletter_OZS_RvdM_Autumn_WEBSITE.pdf

Africans and Hague Justice Conference

On the 23^rd and the 24^th of May 2014, The Netherlands Association for African Studies (NVAS) together with the Hague University of Applied Sciences (HHS) as well as the Netherlands School of Human Rights Research (SHRR) hosted the multidisciplinary conference Africans and Hague Justice: Realities and Perceptions of the International Criminal Court in Africa, which was held at the University of Applied Sciences in The Hague. The conference was groundbreaking in that it reflected the complex and multi-layered perceptions of the International Criminal Court and Africa from the perspective of various different disciplines and backgrounds.

Thematic angles included the ICC’s influence on national politics as well as interstate relationships in Africa, the position of the African Union in the African debate on the ICC, the role of ICC bodies such as the African Court and the socio-cultural impact of the ICC and its compatibility with other international judicial frameworks.

Keynote addresses were given by Professor Makau Mutua, Dean of SUNY Buffalo Law School, Professor Kamari Clarke, Professor of Anthropology and Law at the University of Pennsylvania, Professor Charles Jalloh, Associate Professor at Florida International Law School, as well as Dr. Solomon Dersso from the Institute of Security Studies, in Addis Ababa and last but yet not least, Shamiso Mbizvo from the ICC’s Office of the Prosecutor.  Aside from the high quality and lively presentations given, there were also were a number of side events including an art exhibition, showcasing cartoons by Creative Court, as well as a number of bookstalls presenting the latest publications by Eleven Publishers, Brill Publishers and Intersentia, which had to do with some of the themes of the conference. There was also wide media coverage of the event by various media agencies, including the Dutch Newspaper Trouw, which ran an insightful piece on Court through the lenses of two keynote speakers, Solomon Dersso and Makau Mutua.

Prof. Makau Mutua

Dr. Solomon Dersso

The conference comes at a pressing time, where the ICC’s reputation is increasingly becoming compromised in Africa, given the fact that all ICC prosecutions opened are against Africans. This has resulted in a perceived loss of legitimacy for the Court from the viewpoint of many academics and scholars, not only in Africa, but also throughout the world.  The Hague Justice Conference has been one of the first, of hopefully many conferences to come, aiming to exposition the many underlying issues at play regarding the ICC and its impact in Africa over the past decade. Issues alluded to in the past through media reports and the few academic articles covering topics such as the ICC’s legitimacy, its relationship with the African Union and African society in general, have been sparse and often of the time publicly denied or ‘swept under the carpet’ by some academics and ICC officials alike. But from the recent discussions at the conference, it has emerged that major challenges lie in wake of current and future ICC prosecutions. If the Court is to function optimally, there needs to be open and honest discussion facilitating solutions to problems identified, to strengthen the Court as an international justice mechanism.          

Hopefully, conferences following in the same 'ICC vein' will be bold enough to gauge broader views from multidisciplinary audiences necessary to address crucial criticisms, essential to developing a fair and effective International Criminal Court.

So kudos go out to the members of the organizing committee, Froukje Krijtenburg, Eefje de Volder, Jos Walenkamp and (myself) Ingrid Roestenburg-Morgan for bringing this conference to life and making it a real success J

For more information on the conference read the views of Cecilia Bailliet, on her Blog IntLawGrrls available at:

http://ilg2.org/2014/05/27/highlights-from-the-conference-on-africans-and-hague-justice-realities-and-perceptions-of-the-international-criminal-court-in-africa/

Posted by Ingrid Roestenburg-Morgan

Gender Equality through Yin/yang Philosophy in China

Peng Qinxuan PhD Researcher SIM

My name is Peng Qinxuan, I came from Netherlands Institute of Human Rights, Utrecht University. I work with Prof. Jenny Goldschmidt on the research of human rights protection for the migrant women workers as domestic helpers in China, in which both elements of gender issue and Chinese culture fascinates me. That is why I wrote this piece of article on promoting gender equality in China using Yin-yang philosophy with which the discourse that Chinese people are familiar. I feel very honored to be able to present my ideas amongst so many brilliant minds, which I think is also a great opportunity to learn from you.

The structure of the presentation goes like this: The first section is a brief explanation of the concept of Yin-yang, including where does it come from and how widely is it applied in every aspects of Chinese culture. The second section is an introduction of the concept of gender and what are the general principles of modern-day gender equality. The third part is to apply yin-yang philosophy to match the principle of gender equality in order to make it accessible under the Chinese context. Finally, the floor is open for questions, discussions and suggestions.

First, the origin of yin and yang concept came from the ancient Chinese classics dated from 11c BC when Wenwang, the ruler of Zhou Dynasty hosted an activity among scholars to codify the their ancestors’ wisdom and their observation of the law of change. (It can be compared to the 5c, when the ruler of Roman Empire Justinianus presided the Roman law codification, only a lot earlier.) Given the enormously wide and deep application and incorporation in Chinese lunar calendar, agriculture schedule, astronomy observation, architecture, traditional Chinese medicine, regimen, martial art, music, traditional Chinese calligraphy, and other philosophical schools including Confucianism(Yang-oriented) and Taosim(Yin-oriented). I intend to view yin-yang as a philosophy that integrated epistemology, way of thinking, value system and aesthetic apperception.

So what is yin-yang? In I-Ching, Hsi Tzu passage, it says a yin and a yang interact with each other, that is the natural law of everything. Yin and yang can be widely interpreted into two opposing nature of things, which are exactly the elements that promote things to change and evolve under yin-yang interaction. But it is necessary to know that neither yin nor yang, as an intrinsic nature of thing, has its own virtues(see PPT). And the imbalance of yin-yang coordination can cause inauspicious effect. Here is the misconception of yin-yang philosophy starts when there is an overall worship of Yang in the society, people tend to praise Yang and suppress Yin. This is wrong because only yin or only yang cannot help to evaluate anything; either of them is help to describe things. It is the way how they interact and balance that helps us to evaluate and predict whether it is a promising development or not. For example, a weakness in either yin or yang may cause imbalance, which is inauspicious. (Further explain with PPT diagrams that yin and yang has their own virtues.)

Now you may wonder what does the most ancient wisdom yin-yang philosophy has to do with the most modern concept of gender equality? Can the self-contained eastern rooted philosophy echo the global trend? My answer is yes. Let’s first examine the gender theory. Gender is a social institution that determines responsibilities, allocation of resources, opportunities, and deciding power according to one’s biological sex. To put it simply, gender is the social interpretation of one’s sex. To eliminate the prejudices and discrimination arise from gender stereotypes, gender equality has long been on the agenda of scholars and policy-makers alike. Through generations of debates and efforts, there are at least a number of consensus arrived concerning gender equality under the UN documents since the gender mainstreaming dissemination, the question remains how to get these consensus reach each local-based community and make them truly understand and accept the notion and principles of gender equality as a global strategy.

I hereby argue that the local-grown yin-yang philosophy in China can actually help us to better grasp the major ideas of gender equality since they have several overlapped understandings according to the modern concept of gender equality. I will give 4 examples to better elucidate my point. 1. Gender refers to both men and women, and the interaction between them. 2. Based on the socialization process, gender is a dynamic, changeable concept that implanted through education system, political system, legislation, culture and traditions. 3. Gender also includes other cross-cutting socio-cultural variables: race, class, social status, age and others.(i.e. intersectionality) 4. Gender mainstreaming aims at reaching a gender-neutral society for a people-centered development, this necessarily involves women’s empowerment.

Applied yin-yang philosophy, then it is much easier to comprehend the above-mentioned ideas: 1. Yin-yang philosophy refers to yin and yang, especially the interaction between them, so is gender. 2. The essence of yin-yang philosophy lies in change, so is the gender. Neither of them are set in stone, they are open to modification and dynamism of outside world, they are prepared to change along new situations. 3. Each “diagram” is composed of yin and yang composition, seldom is there yin-solely or yang-solely diagram, which suggests an ancient perspective of intersectionality that in a diagram or a situation, we cannot only pay attention to a single line of yin or yang, they are complicated composition of different elements. So is gender. 4. Yin and yang interaction makes change, positive and harmonious co-existence and interaction makes auspicious change. Weakness in either side would be inauspicious even harm the society. Accordingly, disadvantage in either men or women would harm the society, too. Only harmonious men and women relations and cooperation benefits humankind.

Actually, the more I explore the gender theory and the yin-yang philosophy, the more common grounds I found between them. But since time is limited, I will leave it there and I conclude that yin-yang philosophy exist and thrive for a reason: it is an open system that evolves with time and change. Applied to gender equality principle, it helps with the modernization of the yin-yang philosophy and maintains its vitality. Vice versa, by using the local-grown yin-yang philosophy that Chinese people are familiar with can help us better grasp the essence of gender equality and incorporate it into our policy-making and daily practice. The vitality of a culture lies in its openness and its willingness to adapt to new situation, and the only way to preserve and thrive our culture is not retaining it to ourselves inwardly, but opening it to modernization and internationalization.

Guest Post By  Peng Qinxuan ( Peng Qinxuan is a PhD Candidate at the Netherlands Institute of Human Rights (SIM)) (Speaking notes for the Seminar on “Relying on culture to protect human rights: the combat against HIV/AIDS and the stigma associated with it”)

National Implementation of International Human Rights Obligations: Legislation and “Other” Effective Measures

Julie Fraser PhD Candidate Receptor Approach

Campaigns to combat HIV/AIDS and to remove the stigma that patients often face have not always been effective. The assumption upon which this Seminar is based is that the effectiveness of human rights protections may be enhanced by relying on local culture. While not dealing directly with the topic of combatting HIV/AIDS, this paper discusses the legal issues surrounding the use of culture to protect international human rights. The central question addressed is whether it is permissible under public international law for States to utilize culture - or other social institutions - to protect domestic human rights and uphold their international obligations?

The Receptor Approach seeks to accommodate “non-Western” methods of human rights protection within public international law. The Approach identifies pre-existing social institutions – such as culture or traditional medicine - that can be relied upon by the State to meet its international human rights obligations. The Receptor Approach works from the premise that human rights may be implemented – and even more effectively implemented - through non-legal means like social institutions.

This paper contends that States are not always obliged to legally incorporate international human rights treaties, and that they have discretion in implementation. When considering such measures of implementation, the focus is not on the method adopted but on their efficacy. Therefore, it is submitted that, subject to certain conditions, there is scope within the UN system for the Receptor Approach to implementation of human rights obligations.