Thursday, March 12, 2020

Shasha Li: Commentary on Dayuan Han, "The Relationship Between National Security and Human Rights in China's Constitution"

Over the course of the last several years, Chinese scholars have been engaging in a very interesting discussion about the way that constitutional sensitivities to human rights affects Chinese law and practice in a number f areas. The conversation intensified after 2004 when the State Constitution was amended to include a third paragraph in its Article 33 that provides: "The State respects and preserves human rights."

This year I have the great privilege of hosting a marvelous visiting scholar from China, Shasha Li. Professor Li is an Associate Professor of Law School of Dongbei University of Finance and Economics. She obtained her Bachelor of Law from Zhongnan University of Economics and Law, her Master of Law at Nankai University; ad her Doctor of Law at Jilin University. Professor Li may be contacted at fishsuncat [AT]

I have prevailed on Professor Li to offer readers in English a glimpse at some of the rich discussion among academics who are considering the application of principles of human rights with Chinese characteristics and compatible with the Chinese political and normative system.

For her next  commentary, Professor Li has chosen the essay, "The Relationship Between National Security and Human Rights in China's Constitution," authored by Dayuan Han, Professor of Law at Renmin University and published in Academic Exchange (2019 (3)). Earlier Commentary may be accessed HERE. The article makes for interesting reading not just because of its object to align constitutionalism with anti-terrorism and de-radicalization measures, but for what it might suggest about the scope of state action in the context of epidemics like COVID-19.

Professor Li's English language reflections follows below along with the original article (Chinese language only; English language Abstract). 

Shasha Li, Reflections on 
"The Relationship between National Security and Human Rights in China’s Constitution"
Dayuan Han
Professor of Law School of Renmin University of China 

National security is a relatively marginalized concept, sometimes understood as a concept contrary to human rights or as a negative concept. In fact, based on the interdependence of national security and human rights, the value of national security and human rights are equal, and national security is an important foundation for human rights protection. The author of this paper analyzed the concept of the state, national security, human rights, and the relationship between national security and some specific human rights. 

The author said that the "state" in China’s constitution had three meanings: as a "state" in the sense of a unified political community, as a "state" in the sense corresponding to the society, and as a "state" in the sense corresponding to the local government. According to the relevant sections of the Constitution and the National Security Law, the author said that national security was the foundation of national survival, and national security took people's security as its core value, which was the basic requirement of national governance. Maintaining national security is also a constitutional obligation of citizens. In the China’s Constitution, human rights refer to the freedom or qualifications that a person should have as a person. Human rights exist based on the basic requirements of morality, indicating the basic qualifications of human existence. Its connotation mainly includes: first, human rights in the sense of constitutional principles; second, human rights in the sense of national values; and third, human rights that are transformed into basic rights. 
In terms of the relationship between national security and human rights, the author believed that the two were not only independent but also related, and are not conflicting concepts. National security in the constitution refers first to the security of the country's political power or political security, and it is necessary to safeguard the basic system of the country. In human rights and national security, we must first ensure the security of the state power. Without the security of the state power, the survival of the country is directly threatened, and human rights protection will lose its foundation.
The author particularly emphasized that in the new era, violent terrorism still threatened the core interests of the country, and it was still facing various challenges to maintain national security. Focusing on the issue of national security and human rights protection, the author said in terms of the relationship between national security and human rights, we must reasonably balance the relationship between the two based on new development concepts and constitutional principles. The individual is the cornerstone of the country. So how to ensure the maximum realization of individual rights constitutes the premise and starting point of the state when formulating all policies. Whether or not human rights are guaranteed should be the fundamental sign of the legitimacy of the country. 
This article was published in May 2019. Because of the COVID-19 epidemic it was republished by a well-known academic WeChat account recently. The author is a very famous professor who was also the dean of the Law School of Renmin University of China. Since the author is a representative of the text interpretation school, his analysis of the concept of human rights, state, and national security started with the Constitution and related legislation, and interpreted the concepts at different levels, which was worthy of following. However, this article did not give a systematic analysis of the relationship between national security and human rights, and after reading the readers did not believed the issue was resolved. 

In traditional public law theory and practice, the interdependence of human rights and national security has not been valued by the academic community. When talking about the relationship between the two, there isa lack of systematic proof of the role of national security in protecting human rights. The article did not resolve this issue either. In my opinion, there are two factors that should be considered when analyzing the relationship between the two. One is the cultural differences inherent in human rights. Although human rights issues are increasingly universal, judging from the different measures adopted by various countries in response to the COVID-19 epidemic, the impact of cultural elements on the value of human rights cannot be ignored. People in different countries have different perceptions of human rights, and different rights are ranked differently in the human rights system too. National protection measures for human rights should be consistent with the human rights culture of the people. Second, the principle of proportionality is the basic principle that balances the relationship between the two. In the measurement of different interests, the application of the principle of proportionality is not unfamiliar, but for non-case law countries, how to abstract and generalize the principle of proportionality is still a question worth exploring.


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