Part I 

Risks and Retaliation for Defending Rights 
 

1. Norms and Definition

In 1999, the United Nations passed what is known as the Declaration on Human Rights Defenders (General Assembly Resolution 53/144 [Distri. GENERAL A/RES/53/144, 8 March 1999]). The Declaration stipulates： 

Art. 1. Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels. 

To respect the right to protect and realize human rights, the Declaration further stipulates in Art. 2: 

1. Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice.

2. Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the present Declaration are effectively guaranteed. 

In this report, in accordance with the relevant provisions of the Declaration, we refer to a “human rights defender” as: any individual or group engaged in peaceful activities to promote human rights, protect themselves or other people from human rights violations, complain about or take legal action against human rights abuse, or aid in relief efforts for victims of disaster. The definition of a human rights defender is not limited to those employed as human rights officials or those working in NGOs as professionals. Rather, it takes into consideration whether the individual acts to protect human rights.  

Using non-violent means, human rights defenders in the context of China guide their efforts with universal human rights standards and seek to secure fellow human beings’ basic liberties, in particular protecting the rights of the poor, vulnerable, and victimized members of society. Insisting on speaking the truth despite the obstacles and risks involved, human rights defenders seek to uncover rights violations, uphold social justice, and promote reform of political and legal systems. 

As a result, the scope of the community of Chinese human rights defenders includes those who are concerned about, who take action to protect or promote human rights regardless of their occupation, religious or political beliefs, ethnic background or gender. The definition does not rule out government employees or officials or officially appointed judges. Currently in China or in the Chinese online virtual community, the term “people involved in rights defense” (“维权人士”) is used to refer to roughly the same community of human rights defenders. For convenience, we will employ both terms.  

2. Persecuted as Political Crime

In 2006, the Chinese government continued to suppress domestic human rights activists and civil rights groups, frequently using state power and prerogatives to carry out violence and coercive tactics, arrests and imprisonment, and intimidation. According to informed sources, Chinese officials last year circulated a series of documents regarding domestic affairs that describe human rights defenders as a “hostile force," warning that they receive support from Western countries and they harm social stability and national security. The documents call on officials at all levels of government to “initiate attacks, strike them as soon as they emerge, control the enemy first and eliminate the situation that is sprouting.” 

As a result, the community of human rights defenders suffered serious set-backs in 2006. While they — through their professional and personal activities, individually or in groups — tried to use the legal system to fight for the protection and promotion of human rights, exercising their right to do so as supported by the Declaration on Human Rights Defenders, they ran the risk of restriction of their liberties and threats to their physical safety.  

CHRD finds that the Chinese government’s actions have fallen far short of implementing the Declaration of Human Rights Defenders. As far as we know, no government department or state-run media have ever publicized the existence of the Declaration. All related contents on the internet seem to have been blocked. Aside from a very small minority of human rights or foreign affairs scholars, hardly anyone knows of the Declaration. To date, we have never seen any publication in Chinese regarding this Declaration or related documents, and the Chinese government has not adopted any measure to implement the Declaration. A public survey by the Beijing capacity-building initiative Huizeren indicated that of the 4,000 social workers surveyed, 92% of them had never heard of the Universal Declaration of Human Rights. 

The Declaration of Human Rights Defenders emphasizes two important freedoms as essential to the protection of human rights defenders: freedom of speech and freedom of assembly. Neither of these rights has been respected by the Chinese government.  

Freedom of speech   Article 35 of the PRC Constitution states that “[c]itizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” However, since China has yet to enact laws governing news media and publications or protecting freedom of speech, and China has yet to ratify the International Covenant on Civil and Political Rights, which requires adopting/revising national laws accordingly, no effective legal mechanisms exist through which its citizens may seek redress for violation of free speech or challenge state infringement of this freedom.  

Human rights defenders and lawyers, however, are challenging existing laws and regulations that restrict and punish free speech. They have come to the realization that human rights are not bestowed upon Chinese citizens by the generosity of the government; laws and national policies should not be regarded as the fundamental source of freedoms. On the contrary, laws and governmental regulations may often restrict or even deprive citizens of their human rights and freedoms.  It is thus imperative that national laws and regulations be examined through the perspective of universal human rights standards. For example, citizens have challenged the constitutionality of the Regulations on Management of Internet News and Information Services, issued by the Chinese government in 2005.  This regulation controls freedom of information and gives the government a monopoly on the Internet, turning this means of modern telecommunication into a tool of surveillance by cyber-police.  Also, rights activists have requested that the NPC undertake a constitutional review of the legal practice of using the crime “inciting subversion against the state” to prosecute independent writers and journalists, punishing free speech (for more details, see “CRD Open Letter to the NPC, Urging Constitutional Review of the Crime of ‘Inciting Subversion’

and Abolition of Law Criminalizing Free Expression:” http://crd-net.org/Article/ShowArticle.asp?ArticleID=3744). 

Freedom of association: The Chinese State Council enacted the Regulations on Registration and Management of Social Organizations (October 15, 1998), which require that all non-governmental groups (“social organizations”) be approved by the Civil Affairs Department at the appropriate level and find a sponsor within the system of government agencies before they can be recognized as legitimate. The Regulations specify that that “in applying to create an organization, the initiator must provide the Registration and Management Office with a file of approval from its business management unit within the government,” and that all social organizations must have a “supervisory unit” from within the government.  

In reality, almost no truly independent social organizations can find such a “supervisory unit” (sponsor) or approval from a so-called “business management unit,” and cannot, consequently, be approved by the Civil Affairs administration.  In the cases where such groups get the sponsorship, this regulation thus puts the social group on a leash.  If they over-step the boundary, the sponsors will, often under pressure from high authorities, withdraw their sponsorship, forcing the group to close down due to “illegality” or re-register as a for-profit company subject to taxation and other restrictions. Thus, this Regulation serves as a gatekeeper to keep out truly independent non-profit, non-governmental groups, infringing upon Chinese citizens’ human right to free association.  

Given this structural restriction on free association, many non-governmental organizations are forced to register as for-profit enterprises under the Industrial and Commercial Bureau. This, however, inevitably leads to financial and taxation issues associated with not having non-profit status. Many organizations, such as the Empowerment and Rights Institute and San Chun Da Di (an organization that worked with migrant laborers), have been forced to suspend all activities.  Ai Yuan (an organization that works with AIDS orphans) and Gong Meng (formerly the Sunshine Constitutionalism Institute), in other cases, have found great difficulties in sustaining themselves and their key players are constantly under police surveillance. 

In addition, the Chinese government has placed often insurmountable restrictions on the rights to free assembly and protest. On October 31, 1989, soon after the bloody crackdown on the pro-democracy demonstrations, the NPC passed the PRC Law on Assembly, Demonstration and Protest. This law stipulates that all public gatherings, marches and demonstrations must first receive official approval from the Public Security Bureaus at each level of the government.  

Yet, in the last 17 years since this Regulation was enacted, the Public Security Bureaus have approved no applications submitted by citizens for holding demonstrations against certain government policy/regulation or government officials.  Instead, people who made such applications were often subsequently harassed or imprisoned. For example, when applications to hold demonstrations against illegal annexation of land and forced eviction by farmers in Putian city, Fujian province, were refused, the farmers’ representative Huang Weizhong (黄维忠), who had tried without success to petition the city government about the farmers’ grievances, was arrested and eventually sentenced to three years’ imprisonment. With regards to implementing protections for the people’s rights to free association and free speech, China’s current framework of law and administration runs entirely contrary to the principles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. 

There exists, in fact, no effective mechanism in China for reviewing legal violations of the Constitution; such violations by government-enacted laws and regulations are therefore rarely addressed. When citizens appeal directly to the NPC about serious constitutional breaches, requesting the NPC to authorize constitutional review of certain laws or regulations, they are generally ignored by the legislature, such as in the case of the appeal by citizens to the NPC for a review of the law punishing free speech as the crime of “inciting subversion.”  

To better illustrate the situation they faced in 2006, we describe the work and experiences of a selection of (a) defenders in prison, (b) defenders at risk, and (c) human rights lawyers.