|Poster for the Movie "Gone with the Wind" 1939|
|From the movie "Gone With the Wind"|
The independent experts urge the Government of China to abide by its international legal obligations, including under the International Covenant on Civil and Political Rights (ICCPR) and the Sino-British Joint Declaration, and withdraw the draft national security law for Hong Kong. The UN independent experts believe it is time for renewed attention on the human rights situation in the country, particularly in light of the moves against the people of the Hong Kong SAR, minorities of the Xinjiang Autonomous Region, the Tibet Autonomous Region, and human rights defenders across the country. The independent experts acknowledge that the Government of China has responded to the communications of UN independent experts, if almost always to reject criticism. [独立专家们敦促中国政府遵守其国际法律义务，包括《公民及政治权利国际公约》和《中英联合声明》规定的义务，撤回香港《国家安全法（草案）》。联合国独立专家们认为，现在应该再度关注中国的人权状况，特别是考虑到中国针对香港特区民众、新疆自治区和西藏自治区的少数民族，及全国各地人权维护者所采取的行动。独立专家们承认，中国政府虽然几乎总是拒绝接受批评，但是对联合国独立专家发出的信函作出了回应。]
|Pix Credit Irish Central; HERE|
Homesickness in International Human Rights Law
Nostalgia is understood in its English sense as homesickness--the return not just to a place but to a time that is now irretrievably gone. What is meant to be recaptured is not lost. Quite the opposite, it is very much in evidence, but return is impossible because the conditions that gave it effect have changed irremediably.
Modern Latin, coined 1688 in a dissertation on the topic at the University of Basel by scholar Johannes Hofer (1669-1752) as a rendering of German heimweh "homesickness" (for which see home + woe). From Greek algos "pain, grief, distress" (see -algia) + nostos "homecoming," from neomai "to reach some place, escape, return, get home," from PIE *nes- "to return safely home" (cognate with Old Norse nest "food for a journey," Sanskrit nasate "approaches, joins," German genesen "to recover," Gothic ganisan "to heal," Old English genesen "to recover"). French nostalgie is in French army medical manuals by 1754.Originally in reference to the Swiss and said to be peculiar to them and often fatal, whether by its own action or in combination with wounds or disease. By 1830s the word was used of any intense homesickness: that of sailors, convicts, African slaves. (Etymology Online, "Nostalgia").
Delacroix, Cromwell With the Coffin of Charles I (Louvre)
(in the valley, unseen)
Rhine-gold! Rhine-gold! guileless gold!
how brightly and clear
shimmered thy beams on us!* * *
Pix Credit HERELoge
(calling down toward the valley)
Ye in the water! why wail ye to us?
Hear what Wotan doth grant!
Gleams no more on you maidens the gold,
in the newborn godly splendor bask ye henceforth in bliss!
(The gods laugh and cross the bridge during the
Rhine-gold! Rhine-gold! guileless gold!
O would that thy treasure
were glittering yet in the deep!
Tender and true 'tis but in the waters:
false and base are all who revel above!
(As the gods cross the bridge to the castle,
the curtain falls.)
What is the essence of the keening? The principal one is that of authority. It is not just the "repression of fundamental freedoms", but rather the repression of those freedoms as their meaning has been constructed by the international community within which they serve as the vanguard. That suggests, almost immediately a conflict of authority (especially one understood in Leninist terms). The Special Procedures--and the apparatus of the international community has constituted itself the leading force, the Leninist vanguard, of human rights. Their guidance is both necessary and a condition precedent, to the authentication of the legitimacy of the actions of states and other actors within their constitutive orders. It is not so much the violations of human rights that is at issue here, as it is the authority of the international human rights vanguard to exercise leadership and authoritative guidance with respect to its meaning and application within states. It is to their leadership that states must open their doors; it is to them that states must account. They represent, in Leninist terms, the leading elements of global society with the authority to guide states toward the fulfillment of their fundamental obligations--in this case NOT to establish a communist society (the traditional expression of MARXIST-Leninism)--but to organize themselves within the taboos of international human rights law, principles and sensibilities under the leadership of the Special Procedures and the administrative organs of public international organizations.
China's rejection of those principles constitute a reactionary error. It is an error that must be corrected. That correction. in turn, requires China to "return home"--to accept the authority of the leading elements of global society and conform to their leadership in matters of global human rights, constituted as the basic premises of legitimate institutional organization in the world. But China has inverted this forma. And in a sense that is the ultimate irony of the keening. China acknowledges the fundamental power of the principle of Leninist organization and thge right of the leading social forces to guide society toward the fundamental normative goals that are from their point of view inevitable. It is just that the Chinese Communist Party sees itself in the role of fundamental vanguards--and it sees its own normative order, as the supreme basis for ordering political. social, and economic reality. In inversion the possibility of effective interaction reduces itself to a very small space.
The secondary element of the keening is that of meaning. It is not enough to seize for one's collective self the mantle of vanguard leadership. One must also attach a moral order to that leadership. For the Chinese Communist Party those are expressed in Marxist principles as an evolving iterative process within the state (discussed in The Situation in Hong Kong: Description of Draft "Law of the People's Republic of China on the Maintenance of National Security"《中华人民共和国香港特别行政区维护国家安全法（草案）》). For the UN apparatus (and generally within the leading elements in power in the West) the anchor of the moral-political order lies within international human rights law and norms expressed through the actions of duly constituted public international bodies allied with representative elements of states, civil society and other institutions (religious, economic, etc.). But that is not enough. It is in the authority of the vanguard to apply the moral order that the system is constructed. China has ruptured that system--and ruptured it thoroughly--by interposing the moral superiority of its own vanguard, and their authority to interpret and apply their own moral-political order, over that of the international human rights vanguard and the recognition and application of the global human rights moral-political order.
It is those oppositions that lie at the heart of the Special Procedures Statement. The key is the combination of the authority of the international order, and its authoritativeness sin identifying and interpreting (that is in giving meaning to) the basic moral-political elements with which the state must align their own (subordinate) constitutive orders. Here, China has made clear (like the United States), that it draws from but is not bound to the construction of the ordering premises of the international human rights order in operating its own moral-political order. Likewise, it does not recognize the supremacy of the international vanguard as the interpreter of those international norms from which it draws.
Understood in that way, and only in that way, does the Special Procedures Statement derive its power. And, indeed, if one accepts the core structural premises around which they were built, the Statement is then both direct, clear, and well crafted. But the Chinese do not believe. And that provides the great tension in the Statement's focus on Hong Kong.
China has rejected the primary authority of political and civil rights--and has instead embraced a model of human rights in which security, economic, social, and cultural rights are centered. They have adopted a relationship between the state and international organs as one requiring strict compliance with the international obligations of states, but like the American states that would eventually form the Confederate States of America, they also believe that it is for the state to determine the meaning of that strict compliance. They reject other approaches as bullying and interference in domestic affairs, when undertaken by international bodies (but not of course when between states these are used to protect and perhaps project national interests). And they have firmly rejected the idea that public international law, including treaties, may penetrate the borders of states to constrain the ability of the state to organize its internal affairs to suit its political-economic model.
These are the rejections that are so deeply lamented in the Special Procedures Statement: China rejects the obligation to embed itself deeply within the leadership and guidance structures of international organs. China rejects the supremacy in its internal governance. China rejects the global human rights approach to the meaning of religious and civil liberties and to its authority to fashion its citizens according to its own moral-political principles, especially where that involves coercive elements. China rejects the authority of international instruments to constrain its internal political arrangements. China rejects any effort to reconstitute Hong Kong in language that suggests its distinctiveness sufficient to support even a limited amount of self determination. China rejects the duty to conform to the behavior standards followed by other (even a vast majority of other) states. China rejects the idea that it must open its door to foreigners, especially foreign elements representing a vanguard bent on challenging its own internal leadership. And China rejects the principle that it is under any obligation to account to foreigners with respect to the application of its own political-moral order within the territory over which it claims sovereignty.
Turned around, these are the rejections around which the Special Procedures Statement is written. And in that writing, the Statement describes a world that is likely no longer attainable. It is a world which recognizes the authority of a global community of actors to develop, by consensus and within representative international institutions, the basic principles within which all states and other actors would be bound to conform their behavior. It is a world in which international law and international norms in whatever form crafted, would be respected by non-state actors, and embedded into the constitutive orders of all states. It is a world in which the basic operation system of politics, law, economics, and morals, would be driven by, and interpreted through, the lens of human rights. It is a world in which the United Nations organs would constitute the common meeting place within which the global community would meet to bind themselves, hold each other to account, and enforce communal norms. It is a world grounded in individual, rather than collective, human dignity. It is a world in which civil and political rights serve as the means of preserving authority as a sovereign element of the masses. It is a world in which borders became permeable, porous, and retained to the extent it serves as a means of more efficiently enforcing global norms. It is a world grounded in the basic operation principles of prevention, mitigation, and remediation of human rights. It is a world in which meaning is made collectively at the global level but implementation (supervised and subject to accountability measures) is undertaken locally. This is the world of the golden age of global international human rights.
In this world, and during the golden age of human rights global internationalism, Hong Kong is constituted a creature of international law. Hong Kong is understood as having developed a distinctive "personality" that must be protected against interference by central authorities. Hong Kong is understood to fall squarely within the realization of civil and political rights as these have emerged in international organs, one that constrains the state from exercising authority to preserve order or interfere with individual activity except as developing international practice approves. And these are all the conceptions of Hong Kong now publicly and decisively rejected by China. And in the face of that rejection, the best the old order can do is to muster its most vulnerable elements--the Special Procedures with a mandate and little authority--rather than the community of states themselves--that appear to be able to muster the courage to do their duty by the system that generations have sacrificed to build. In the end, then, the Statement is as much a lamentation about the power of China to transform the global collective to something more to its liking, as it is a lamentation of the system itself to preserve its integrity to, exercise collective leadership.
Lastly, it should not bear repeating, but in this age perhaps everything bears repeating, that the system within which the Special Procedures are embedded is hardly necessarily doomed to the trash heap of history. The lamentation can be as much for change as it is for endings. Indeed, it is likely that one can see in the Special Procedures Statement the start of the Silver Age of Global human rights internationalism, one in which states recede from the center, and the staffs of international organizations move to the forefront. Nor is it necessarily true that Chinese Marxist Leninism will triumph as the basis of the post global international order. Nor, again, is the passing of a golden age, except to the extent it is so constructed and then turned into an object of (reactionary) aspiration, either a good or necessary objective. It is not necessary to believe in the value of either, or even to believe in the necessary permanence of particular political-moral orders at the domestic or international level to understand the insights that the Special Procedure Statement provides as discourse, and as evidence of the current historical era and its self conceptions, hopes, fears, and habits. However, the convergence of those forces at this stage of historical development, and their conflict, cast an important light on the way that one historical epoch is indeed giving ground to another--the characteristics of which remain to be revealed.
For global human rights internationalists, Hong Kong represents tragedy and a challenge to the political-moral order that emerged after 1945 and continues to develop. For China, Hong Kong represents the tragedy of the dead hand--of the conflation of historical colonialism with contemporary international human rights regimes. Both actors embrace nostalgia here--for quite incompatible visions. Both seek to journey back home--to a time and place that is not the present. The intensity of that nostalgia is palpable in the Special Procedure Statement, but in equal measure in the Chinese insistence on pressing forward with the domestication of Hong Kong and the subordination of international obligations to domestic imperatives. In either sense, this tragedy is one in the making from the 1980s, is that it is now trapped in between; in between ideological foundations of political-moral systems, in between the international community now come into its own and states now fully ready to seize an out-sized sovereignty decades after that became unfashionable among developed states; and it sits in between the still unresolved issue of the indivisibility of human rights which have, as a matter of international law, been divided since the 1970s between civil and political rights, and economic, social and political rights.
UN experts call for decisive measures to protect fundamental freedoms in China
GENEVA (26 June 2020) – UN independent experts have repeatedly communicated with the Government of the People’s Republic of China their alarm regarding the repression of fundamental freedoms in China. They have denounced the repression of protest and democracy advocacy in the Hong Kong Special Administrative Region (SAR), impunity for excessive use of force by police, the alleged use of chemical agents against protesters, the alleged sexual harassment and assault of women protesters in police stations and the alleged harassment of health care workers.
They have also raised their concerns regarding a range of issues of grave concern, from the collective repression of the population, especially religious and ethnic minorities, in Xinjiang and Tibet, to the detention of lawyers and prosecution and disappearances of human rights defenders across the country, allegations of forced labour in various sectors of the formal and the informal economy, as well as arbitrary interferences with the right to privacy, to cybersecurity laws that authorise censorship and the broadly worrying anti-terrorism and sedition laws applicable in Hong Kong. They have expressed concerns that journalists, medical workers and those exercising their right to free speech online in relation to the COVID-19 outbreak and pandemic have allegedly faced retaliation from the authorities, including many being charged with ‘spreading misinformation’ or ‘disrupting public order’.
Most recently, the National People’s Congress took a decision to draft a national security law for the Hong Kong SAR – without any meaningful consultation with the people of Hong Kong – which would, if adopted, violate China’s international legal obligations and impose severe restrictions on civil and political rights in the autonomous region. The national security law would introduce poorly defined crimes that would easily be subject to abuse and repression, including at the hands of China’s national security organs, which for the first time would be enabled to establish ‘agencies’ in Hong Kong ‘when needed’.
The draft law would deprive the people of Hong Kong, who constitute a minority with their own distinctive history, cultural and linguistic and even legal traditions, the autonomy and fundamental rights guaranteed them under the 1984 Sino-British Joint Declaration and the ‘One Country, Two Systems’ governance framework. It would undermine the right to a fair trial and presage a sharp rise in arbitrary detention and prosecution of peaceful human rights defenders at the behest of Chinese authorities. The national security law would also undermine the ability of businesses operating in Hong Kong to discharge their responsibility to respect human rights in line with the UN Guiding Principles on Business and Human Rights.
The independent experts urge the Government of China to abide by its international legal obligations, including under the International Covenant on Civil and Political Rights (ICCPR) and the Sino-British Joint Declaration, and withdraw the draft national security law for Hong Kong.
The UN independent experts believe it is time for renewed attention on the human rights situation in the country, particularly in light of the moves against the people of the Hong Kong SAR, minorities of the Xinjiang Autonomous Region, the Tibet Autonomous Region, and human rights defenders across the country.
The independent experts acknowledge that the Government of China has responded to the communications of UN independent experts, if almost always to reject criticism.
However, unlike over 120 States, the Government of China has not issued a standing invitation to UN independent experts to conduct official visits. In the last decade, despite many requests by Special Procedures, the Government has permitted only five visits by independent experts (pertaining to rights involving food, discrimination against women and girls, foreign debt, extreme poverty and older persons).
Keeping in mind China’s obligations under international human rights law, and the obligation to adhere to the ICCPR with respect to the Hong Kong SAR, and in view of the UN Human Rights Council’s prevention mandate to act on the root causes of crises which may lead to human rights emergencies or undermine peace and security, the UN experts call on the international community to act collectively and decisively to ensure China respects human rights and abides by its international obligations.
The independent experts urge the Government of China to invite mandate-holders, including those with a mandate to monitor civil and political rights, to conduct independent missions and to permit those visits to take place in an environment of confidentiality, respect for human rights defenders, and full avoidance of reprisals against those with whom mandate-holders may meet.
They further urge the UN Human Rights Council (HRC) to act with a sense of urgency to take all appropriate measures to monitor Chinese human rights practices. Measures available to the Council and Member States include but need not be limited to the possibility of:
- A special session to evaluate the range of violations indicated in this statement and generally;
- The establishment of an impartial and independent United Nations mechanism - such as a United Nations Special Rapporteur, a Panel of Experts appointed by the HRC, or a Secretary General Special Envoy - to closely monitor, analyse and report annually on the human rights situation in China, particularly, in view of the urgency of the situations in the Hong Kong SAR, the Xinjiang Autonomous Region and the Tibet Autonomous Region; and
- All Member States and UN agencies in their dialogues and exchanges with China specifically demanding that China fulfills its human rights obligations, including with respect to the issues identified in this statement.”
* The experts: Ms. Agnès Callamard, Special Rapporteur on extrajudicial, summary or arbitrary executions; Mr. David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of expression; Ms. Mary Lawlor, Special Rapporteur on the situation of human rights defenders; Ms. Fionnuala D. Ní Aoláin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; Mr. Ahmed Shaheed, Special Rapporteur on freedom of religion or belief; Mr. Fernand de Varennes, Special Rapporteur on minority issues; Mr. Clément Nyaletsossi Voule,Special Rapporteur on the rights of peaceful assembly and association; Surya Deva, Elżbieta Karska, Githu Muigai (Chair), Dante Pesce, Anita Ramasastry (Vice-chair), Working Group on Business and Human Rights; Ms. E. Tendayi Achiume, Special Rapporteur on Contemporary Forms of Racism; Mr. Balakrishnan Rajagopal, Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context; Ms. Leigh Toomey (Chair-Rapporteur), Ms. Elina Steinerte (Vice-Chair), Mr. José Guevara Bermúdez, Mr. Seong-Phil Hong, Mr. Sètondji Adjovi, Working Group on Arbitrary Detention; Mr. Diego García-Sayán, Special Rapporteur on the Independence of Judges and Lawyers; Mr. Michael Lynk, Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967; Mr. Michael Fakhri, Special Rapporteur on the right to food; Mr. Tomoya Obokata, Special Rapporteur on contemporary forms of slavery, including its causes and consequences; Mr. Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; Mr. Baskut Tuncak, Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes;Mr. Léo Heller, Special Rapporteur on the human rights to water and sanitation; Mr. Livingstone Sewanyana, Independent Expert on the promotion of a democratic and equitable international order, Ms. Karima Bennoune, Special Rapporteur in the field of cultural rights; Ms. Kombou Boly Barry, Special Rapporteur on the right to education; Ms. Claudia Mahler, Independent Expert on the enjoyment of all human rights by older persons; Ms. Maria Grazia Giammarinaro, Special Rapporteur on trafficking in persons especially women and children; Mr. Dainius Pūras, Special Rapporteur on the right to physical and mental health; Members of the Working Group on Enforced or Involuntary Disappearances: Mr. Luciano Hazan (Chair), Mr. Tae-Ung Baik (Vice Chair), Mr. Bernard Duhaime, Ms. Houria Es-Slami, and Mr. Henrikas Mickevičius; Ms. Mama Fatima Singhateh, Special Rapporteur on sale and sexual exploitation of children; The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination: Mr. Chris Kwaja (Chair), Ms. Jelena Aparac, Ms. Lilian Bobea, Ms. Sorcha MacLeod and Mr. Saeed Mokbil; Mr. Olivier De Schutter, Special Rapporteur on extreme poverty and human rights; The Working Group on discrimination against women and girls: Ms. Elizabeth Broderick (Chair),Ms. Alda Facio, Ms. Meskerem Geset Techane, Ms. Ivana Radačić, andMs. Melissa Upreti (Vice Chair); Mr. Joe Cannataci, Special Rapporteur on the right to privacy.
The Special Rapporteurs, Independent Experts and Working Groups are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
UN Human Rights, country page – China
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*专家们：法外处决、即决处决或任意处决问题特别报告员阿涅丝·卡拉马尔女士（Agnès Callamard）；促进和保护表达自由权特别报告员戴维·凯伊先生（David Kaye）；人权维护者处境特别报告员玛丽·劳勒女士女士（Mary Lawlor）；反恐中注意促进与保护人权和基本自由特别报告员菲奥诺拉·尼伊兰（Fionnuala D. Ní Aoláin）女士；宗教或信仰自由特别报告员艾哈迈德·沙希德先生（Ahmed Shaheed）；少数群体问题特别报告员费尔南·德瓦雷纳先生（Fernand de Varennes）；和平集会和结社权问题特别报告员克莱芒·尼亚雷索西·武莱（Clément Nyaletsossi Voule）先生；企业与人权工作组：苏里亚·德瓦（Surya Deva）、埃尔什别塔·卡尔斯卡（Elżbieta Karska）、吉苏·穆伊盖（Githu Muigai，主席）、丹特·佩谢（Dante Pesce）、阿尼塔·拉玛斯特里（Anita Ramasastry，副主席）；当代各种形式种族主义问题特别报告员滕达依·阿丘梅（E. Tendayi Achiume）女士；适当生活水准权所含适当住房及在此方面不受歧视权问题特别报告员巴拉克里希南·拉贾格帕尔先生（Balakrishnan Rajagopal）；任意拘留问题工作组：丽·图米女士（Leigh Toomey，主席兼报告员）、埃利娜·施泰纳特女士（Elina Steinerte，副主席）、何塞·格瓦拉·贝穆德斯先生（José Guevara Bermúdez）、洪晟弼先生（Seong-Phil Hong）、塞顿吉·阿乔维先生（Sètondji Adjovi）；法官和律师独立性问题特别报告员迭戈·加西亚-萨扬（Diego García-Sayán）先生；1967年以来被占领的巴勒斯坦领土人权状况特别报告员迈克尔·林克先生（Michael Lynk）；食物权问题特别报告员迈克尔·法赫利先生（Michael Fakhri）；当代形式奴役包括其原因和后果问题特别报告员小保方智也先生（Tomoya Obokata）；酷刑和其他残忍、不人道或有辱人格的待遇或处罚特别报告员 尼尔斯·梅尔策先生（Nils Melzer）；危险物质及废物的无害环境管理和处置对人权的影响问题特别报告员巴什库特·通贾克先生（Baskut Tuncak）；享有水和卫生设施的人权问题特别报告员莱奥·埃莱尔先生（Léo Heller）；促进民主和公平的国际秩序独立专家利文斯通·塞瓦尼亚纳先生（Livingstone Sewanyana）；文化权利领域特别报告员卡里玛·贝农女士（Karima Bennoune）；受教育权问题特别报告员昆布·博利·巴里女士（Kombou Boly Barry）；老年人享有所有人权问题独立专家 克劳迪娅·马勒女士（Claudia Mahler）；贩运人口特别是妇女和儿童问题特别报告员玛丽亚·格拉齐亚·贾马里纳罗（Maria Grazia Giammarinaro）女士；身心健康权问题特别报告员代纽斯·普拉斯先生（Dainius Pūras）；强迫或非自愿失踪问题工作组成员：卢西亚诺·阿藏先生（Luciano Hazan，主席）、白泰雄先生（Tae-Ung Baik，副主席）、伯纳德·杜海姆先生（Bernard Duhaime）、何瑞·艾丝莱迷女士（Houria Es-Slami）和亨里卡斯·米茨凯维奇乌斯先生（Henrikas Mickevičius）；买卖和性剥削儿童问题特别报告员马玛·法蒂玛·辛哈特女士（Mama Fatima Singhateh）；以雇佣军为手段侵犯人权并阻挠行使民族自决权问题工作组：克里斯·夸瓦先生（Chris Kwaja，主席）、耶琳娜·阿帕拉克女士（Jelena Aparac）、莉莲·波比女士（Lilian Bobea）、索查·麦克劳德女士（Sorcha MacLeod）和赛义德·默克比尔先生（Saeed Mokbil）；极端贫困与人权问题特别报告员奥利维尔·德舒特先生（Olivier De Schutter）；歧视妇女和女童问题工作组：伊丽莎白·布罗德里克女士（Elizabeth Broderick，主席）、阿尔达·法西奥女士（Alda Facio）、迈斯克莱姆·詹赛特·特查纳女士（Meskerem Geset Techane）、伊凡娜·拉达奇女士（Ivana Radačić）及梅利莎·乌普雷蒂女士（Melissa Upreti）；隐私权问题特别报告员约瑟夫·卡纳塔西先生（Joe Cannataci）。
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