Paper Posted for Comment: "‘By Dred Things I am Compelled’: China and the Challenge to International Human Rights Law and Policy"

I am delighted to share with those interested in such things a recently completed draft of a paper entitled ‘By Dred Things I am Compelled’: China and the Challenge to International Human Rights Law and Policy. The paper considers the emergence of a Chinese  and Socialist alternative to the conventional discourse of human rights developed since the 1940s.

The paper has several objectives.

The first is to rationalize the Chinese conceptual framework for human rights as an entirely coherent theory that draws on the insights and experiences of Chinese experience and its own Marxist-Leninism.   

The second is begin to carefully consider the core conceptual differences between socialist human rights with Chinese characteristics and the "standard" model.  These revolve around the issue of what gets placed at the center of principle and discourse. In traditional human rights the individual human dignity sit as the core kernel from which theory, law and policy is crafted.  In socialist and Chinese human rights the  the human being becomes the central subject of development, development becomes the central element of human rights, and both must be expressed with reference to national conditions and culture.

The third is to consider how the differences between the two approaches has begun to affect those caught in the discursive cross fire and the way these incompatibilities are beginning to be felt int he development of international human rights norms.

The Abstract and Introduction follow below. Comments welcome.  A later version of this essay may appear in (John Haskell and Jean d'Aspremont, eds.)  Tipping Points in International Law: Critique and Commitment (Cambridge University Press).

Download HERE.

‘By Dred Things I am Compelled’:[1] China and the Challenge to International Human Rights Law and Policy

Larry Catá Backer[2]

Abstract: The rise of China as a global power has expanded beyond the realm of economic to international human rights law and policy. This contribution examines both the nature and role of Chinese conceptions of international human rights on the evolution of both. It first examines the conceptual premises on the basis of which Chinese approaches ot international human rights law and norms are developed. It then considers the effects of such development in those situations where enterprises might be caught between conventional conceptions and those now emerging from China. It ends with a close examination of the character of this “New Era” approach to international human rights through the lens of the successful Chinese effort to gain the adoption, by the UN Human Rights Council, of a resolution A/HRC/37/L.36, which embedded the Chinese conception of mutually advantageous cooperation into the heart of the UN’s human rights discourse. Most enterprises are now caught between the construction of human rights conceptual world orders in which compliance with one standard risks liability for complicity with the other in the realms of societal, legal and normative orders. Such has been the context in which the evolution of contemporary Chinese engagement with international law and norms has emerged.

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CHORUS. Sire, there is terror in that prophecy. He who is gone, . . . Hath never spoken falsely to the state.

CREON. I know it, and it shakes me to the core. To yield is dreadful: but resistingly To face the blow of fate, is full of dread. (Sophocles, before c. 441 B.C.; p. 33)

1. Introduction

The first several decades of the 21st Century have constituted itself as a time of great dread. It is an age that appeared to mark both the beginning of a century and the end of an age, an end augured by assaults on the physical and financial manifestations of the power of a world view that had been dominant in the world since 1945. The physical assault, on the Twin Towers in New York, marked a challenge to the power of the established order to maintain it. The intangible assault followed the near collapse of the power of the established order to protect and project its wealth.

Dread, however, is a complicated matter. Certainly, dread suggests the sort of fear and apprehension, the common meanings of dread,[3] that have produced the strong reaction that has been the history of the first two decades of this century, marked in turn by the great trajectories of national and domestic legal orders. But that sort of dread also connotes a fear or apprehension of a higher (usually but not always divine) authority—a four year old dreads the discovery by one’s parent of the consumption of the contents of the family cookie jar not because of the consumption but out of an apprehension of a higher (and to a four year old nearly divine authority) (1 Samuel 11:7). Dread also suggests awe or to be held in awe; that is, the holding of a thing in awe. That sense of a thing of awe, an awful apprehension, also marks this age. It follows then that this is an age that is marked by a frightful apprehension of that which is held in awe. That which causes fright, that which awes, is in turn a thing, a cause, a future. Dread comes from the anticipation of a dreadful thing. It signals consciousness of the accumulations of fears that themselves can now be incarnated, or can incarnate time, into an epoch—one that is going (and thus the fear and apprehension), and one that is coming (and thus the awe).

All of these senses of dread are very much on display in the context of the (re)construction of international law and the core principles through which the world view necessary to its animation as custom, practice, rule, and popular expectation. Within that self-reflexive world there has arisen a dread (among some in the West) of the steady approach to a tipping point. In the West, and especially in its sciences, one has come to understand a tipping point as a threshold which, when exceeded, opens the possibility of significant changes from an old status quo. In Marxist Leninist political systems the concept of tipping points is sometimes naturalized through the application of concepts of historical materialism, “a mass of productive forces, capital funds and conditions, which, on the one hand, is indeed modified by the new generation, but also on the other prescribes for it its conditions of life and gives it a definite development, a special character” (Marx, c.1845 Chp. 2 “Civil Society and the Conception of History”).

This contribution examines a very small aspect of this age of dread, and of the tipping point to which it appears to lead. Appearing as a distant speck on the horizon of power in 2001 fresh from its accession to the World Trade Organization (Weissmann, 2016; Lardy, 2001), by 2020 China could more clearly be seen as the dreadnought (without dread; drede ich nawiht)[4] now threatening the battlements of the great fortifications of what had once appeared to be the universal (and universally disciplined) structures of global governance through international institutions as well as the authority of its leading power within the system (Lipton, 2018). Its focus is on one key manifestation of this approaching dread—the emergence of an increasingly sophisticated and well-structured challenge by China to the current framework for international human rights law and norms, both in conception and application. Section2 briefly describes the evolution of the contemporary Chinese engagement with international law and norms and its consequences for economic persons and institutions caught in the middle. Section 3 analyzes a core instance of that application of that emerging sensibility, the successful effort of China to embed the conception of ‘Mutually Beneficial Cooperation’ within the human rights discourse of the UN. From these the basic structural elements of the accumulation of dread sufficient to tip what had been settled conceptions of international human rights law and norms becomes visible. But in what direction? But what clearly emerges is that the state of certainty about the shape and meaning of human rights and the human rights mission of the international community, will be reshaped to some extent, as will be the power structures from which it proceeds. And for both to yield is dreadful, but to resist ought also to fill each with dread in all its senses.


NOTES:

[1] Sophocles, Electra before 406 B.C.

[2] W. Richard and Mary Eshelman Faculty Scholar & Professor of Law and International Affairs, Pennsylvania State University.

[3] From the etymology of dread in Etymology online
[4] From the etymology of dreadnought in Etymology online .