Respecting Universality of Human Rights: The case of China

Remarks by David Matas to the Phi Beta Kappa Initiation Ceremony 7 April 2009 University of North Carolina, Chapel Hill Campus

University is a time of specialisation. In the early school years we all pretty much do the same thing, learn the same subjects, engage in the same activities. As the years go by we divide up into professions and trades. We then, many of us, subdivide within our professions.

That certainly has been my experience. For almost all my career, I have been a refugee lawyer in private practice in Winnipeg. When I began this practice, I, and Barbara Jackman in Toronto, were the first lawyers in Canada to focus in on this work.

The communities we all form, whether cultural or social or religious, are also quite particular. The colleagues we meet in school or university will lead to some lasting friendships. But mostly everyone goes her or her separate way. The people we see at school or university, we may see again at reunions. But that is likely to be all.

Yet, despite the particularity of our lives, there is one thing all of must hold onto, one thing we must never forget, one thing we all have in common, our fundamental humanity. Whatever our particular concerns, there is one concern we must all continue to share, no matter how specialized our careers become, the concern for human rights.

Though there are people like myself who specialize in human rights, human rights is not the domain of the specialist. Nor is it the responsibility of any one body or agency.

Human rights are, certainly, not the responsibility of governments. Human rights belong to individuals, not governments. If they are to be respected, it is individuals who must promote them. If promotion of respect for human rights is left to governments the defence of those rights will wither.

We can not leave promotion of respect for human rights to the victims alone, nor their co-nationals nor their fellow believers. Some surviving victims are just too traumatized to continue to grapple with the residue of their victimization. Perpetrators may continue to terrorize victims, their friends, their families, their associates.

Crimes against humanity are crimes against all of us, not just the victims. When the victims lose, we lose, because we have lost their contribution to the common effort we all share to make a better world.

In a word, human rights are universal. They belong to each of us, everywhere, at all times. Victimization of one is victimization of all.

Chinese human rights lawyer Gao Zhisheng wrote that you cannot be a human rights lawyer in China without being a human rights case yourself. We in Chapel Hill, North Caroline or Winnipeg, Manitoba, where I live, do not run that risk. We who are far away from the crimes have the luxury of safety and perspective.

The Greek scientist Archimedes in the third century B.C. wrote: "Give me a lever long enough and a fulcrum on which to place it, and I shall move the world". Well, from Chapel Hill or Winnipeg Manitoba, the lever we have to move regimes tyrannizing far away countries is long enough to do the job. With the fulcrum of human rights, we can move those regimes more easily than those who are under their thumbs. Our common humanity calls on us to do so.

Against this there are those who would argue for relativism, some who claim that human rights vary from region to region, belief to belief, culture to culture. In particular, we hear the claim that human rights is a Western concept and its imposition outside the West means imposing Western cultural and religious values on others.

For Westerners, the suggestion that human rights values are Western values being imposed on others has to make our heads spin. The West has committed the greatest human rights violations of the past century. The Holocaust, the murder of six million Jews, and the attempt to exterminate the whole Jewish population, as well as its associated genocides, the mass murder of the handicapped, Roma and homosexuals by the Nazis were Western crimes. Nazism is Western. Fascism is Western. Communism is Western in origin. Colonialism is Western.

Even today we have only to see how the West treats its refugee or aboriginal populations to see serious disregard for human rights. Refugee claimants or asylum seekers in the West are denied access to determination systems, subjected to racist attacks, deterred from making claims, and denied protection. One can as easily talk of a Western culture of human rights violations as a Western culture of respect for human rights.

There are elements of respect for human rights and violations of human rights which can be drawn from every culture, every belief, every region of the globe. Human rights standards are universal standards. They are not based on any one culture or belief. They do not come from any one region. It is a slur on any culture or belief or region to say it ignores human rights. It shows an exaggerated appreciation of any culture or belief or region to say that it is the source of human rights.

Human rights rests on the dignity and inherent worth of the individual. Its foundation is the equality of all humanity. To talk of human rights based on a particular region or belief or culture is to use a contradiction in terms. Cultures and beliefs are varied. Human rights are uniform.

Indeed, to argue that human rights are universal is to indulge in a tautology. If human rights are relative, then they are not the rights of all humans, but only the rights of some humans.

To talk of human rights based on particular cultures or beliefs or regions can defeat the realization of human rights. At any given time, human rights violations are more prevalent in one part of the world then another, within one culture than another, with the adherents of one belief than another. Apologists for those violations will often wrap themselves round with the protective cloak of their culture or belief or region and claim criticism of the violations is relativistic, based on some other culture, another belief, a different region.

To accept the notion of human rights based on a particular culture or belief or region is to accept the defense of violations based on a particular culture or belief or region. We would create a world of first and second class cultures or beliefs or regions. Members of some cultures, adherents of some beliefs, residents of some regions would be entitled to have their human rights respected. Members of other cultures, adherents of other beliefs, residents of other regions would not. Accepting the notion of human rights based on particular cultures or beliefs or regions is a step towards undermining the concept of human rights itself.

The voice for cultural, belief or regional variations in human rights is always the voice of the perpetrators, never the voice of the victims. Victims never say that it is my culture, my belief to be victimized. Victims and perpetrators often come from the same culture, live in the same area. When the perpetrators say that victimization is part of their culture, and the victims say the contrary, I suggest that the victims are the better indicator of ideals of the culture than the perpetrators are. Ultimately, it is the voice of the victims which must be decisive, not the voice of the perpetrators.

For human rights, there are rights and there are wrongs. We should not relativize the wrongs, tolerate the wrongs. Relativization is surrender.

Admitting that human rights values are relative would mean not just tolerating some human rights violations in some places, but every human rights violation everywhere, or at the very least all prevalent human rights violations. An endorsement of cultural, belief and regional relativism leaves only isolated aberrations as human rights violations. With cultural, belief and regional relativism, the notion of a consistent pattern of human rights violations would become a contradiction in terms.

For Westerners to argue for cultural or regional or belief relativism of human rights value is a form of racism or neo-colonialism. It is inappropriate for Westerners to say that human rights violations are ok for them, though not for us, that human rights violations in other cultures, in other regions, amongst believers in other faiths are not true violations, that this is just the way they are.

One cause of relativism is post colonial guilt. Because in the past, the West imposed too much, there is a tendency now to have a totally hands off attitude, to assert too little. We go from one extreme to another, from demanding everything, complete conformity to Western values, to demanding nothing, not even conformity to those values the West shares with the rest of the world. However, neither extreme is appropriate. The West's past overbearing attitudes should not become an inhibitor, preventing the West from asserting human rights values in places where colonialism once reigned.

In Britain, not that long ago, drawing, quartering and hanging were accepted forms of punishment. Those practices ended because of the revulsion they caused. An attitude at the time that those practices were just part of British culture would not have ended those practices earlier than they did end. On the contrary, the attitude that those practices were just part of British culture would have kept them around longer than they were kept.

Perpetrators deny. If they cannot deny, because the evidence is overwhelming, they then excuse. Human rights relativism is one of a feeble litany of excuses perpetrators manufacture in an effort to achieve immunity for their violations.

I have heard the suggestion that a posture of relativity is more likely to cajole violators into compliance than is confrontation and condemnation of wrongdoing. My own view is that conceding relativity is a dangerous game, by giving legitimacy to an excuse for human rights violations. When we talk to violators to encourage compliance, our audience is not just the violators. It is victims as well and the global community. To accede to the notion of relativity is an abandonment of the victims and a disparagement of human rights activism.

Human rights discourse can be abused by those with a particular agenda. That abuse should be seen for what it is, an attempt to corrupt human rights discourse. We should combat the attempt, not change the concept of human rights because of the attempt.

For perpetrators, relativism is an excuse for violations. For outsiders, it is an excuse for inaction. Human rights violations cry out for remedies. The wrongs today regrettably are still today so numerous and so far flung, that there is a tendency for us to throw up our hands, to walk away, to say that nothing can be done. An argument of relativism is an admission of defeat, an acceptance of powerlessness in the face of violations. We need to combat the argument of relativism to combat our own tendencies to passivity, the temptation to feel that fighting human rights violations is futile.

Human rights activists who accept the cultural or belief or regional relativity of human rights, even if they overcome the temptation to do nothing, end up either proselytising or bargaining. Human rights is not a religion. Human rights advocacy should not be a crusade. Yet, if we accept the relativity of human rights, then we turn human rights advocacy into missionary work.

Human rights advocacy, to be effective, should not be a pitch for others to be like us. It should rather be a statement of solidarity with the victims, an attempt to end the victimization of those people who, in many cases, come from the same culture and region as the perpetrators. Human rights advocacy which takes for granted that human rights values are our values but not yet yours abandons one of the most persuasive arguments for respecting human rights, the need through practice to realize already accepted ideals.

Human rights advocacy is the mobilization of shame, the exposure of hypocrisy, the reminder that governments and armed opposition groups are violating in practice the principles they have accepted in theory. Relativism means abandoning this technique of human rights activism, hamstringing human rights work, even where it is not stopped altogether.

Once we accept an argument of relativism, human rights standards become subject to bargaining. If human rights values are our values, but not their values, and we want respect for human rights, then that means that we want others to be like us. Respect for human rights becomes something we want. The retort inevitably follows: we will give you what you want if you give us what we want. Human rights values become bargaining chips in the global marketplace.

Yet human rights advocates have no authority to bargain away the rights of victims. The end of oppression is not a favour perpetrators grant to Western human rights advocates. Human rights are the rights of the people in the places where the perpetrators wreak their havoc, not the wishes of those outside who commiserate with the victims.

Accepting relativism can mean far worse than just ignoring violations or advocating their end for the wrong reasons. Accepting relativism can mean replicating the violations.

Cultural, belief and regional diversity, after all, should be respected. It is a matter of simple politeness, when in Rome, to do as the Romans do. If we are to respect diversity, and if we accept that human rights values are diverse, then, when Westerners are abroad, in order to respect local cultures and beliefs, Westerners would engage in behaviour that would amount to human rights violations at home. Westerners abroad would join the ranks of perpetrators out of respect for local cultures and beliefs.

Relativism is more than a theoretical argument about the nature of human rights. It has practical every day consequences about how Westerners behave abroad. If we accept relativism, we will not just tolerate human rights violations abroad. We end up replicating these violations when we are abroad.

How can we possibly, at one and the same time, say that we believe and human rights and participate in human rights violations? Yet, once we move into a foreign region, an acceptance in the relativity of human rights leads to that participation. Relativity of human rights is not just one way of approaching human rights. It is the negation of human rights.

I have seen different perpetrators trot out this excuse of cultural or belief or regional relativism. Most recently, I saw it with China at the United Nations in Geneva this February.

Former Canadian Minister of State David Kilgour and I wrote a report on organ sourcing in China released first June 2006 and, in a second version, January 2007 under the title "Bloody Harvest: Organ Harvesting of Falun Gong practitioners in China". In that report we concluded that between 2001 and 2006 China killed Falun Gong practitioners in the tens of thousands so that their organs could be sold to foreign transplant tourists. Falun Gong is an exercise regime with a spiritual foundation based on ancient Chinese traditions banned in 1999 after the Communist Party of China became afraid and jealous of its popularity.

Since the report was released, David Kilgour and I travelled around the world to seek to end the abuse we identified. In the course of those travels, we received no meaningful or substantive contradictions to our facts or our analysis. Instead, our report became the target of Chinese government slander and misrepresentation, censorship and blocking. Used as we are to honest debate, this avalanche of insults and irrelevancies surprised us. Although there were many surprises in these Chinese government responses, surely one of them was the very rejection of the concept of human rights.

The Universal Periodic Review is a new element of the United Nations Human Rights Council created in 2006 to replace the failed UN Human Rights Commission. Under the Universal Periodic Review, every state gets reviewed once during a four year cycle. China's turn came up this February in Geneva.

Only states can intervene in the Universal Periodic Review Working Group debate. But it can be any state; it does not have to be a state which is a member of the Human Rights Council. The debate is an interactive dialogue, meaning China has a right to respond.

I went to Geneva and lobbied states to raise the violations identified in our organ harvesting report. At the very least, I asked states to request China's compliance with foundational rights, the respect for which would have made the violations we identified impossible. Many states did speak out for these foundational rights during the two hours of the Universal Periodic Review Working Group allocated to these speeches, but to no avail. The Government of China rejected virtually all these rights.

During the Universal Periodic Review interactive dialogue, the Government of China supported universality of human rights in principle but with weasel words which meant rejection of universality in practice. The Government of China representatives endorsed acceptance of human rights "in light of China's national realities". The Government of China, so it said, works towards "Chinese-style democracy" rather than just democracy. The Government of China said: "It is natural for different countries to have different views on the question of human rights."

The Universal Periodic Review Working Group came out with a report tabulating the recommendations of states which spoke during debate. The Government of China reaction, which followed immediately upon release of the report, gave us a clear idea of what those earlier weasel words had meant. The Chinese government accepted some recommendations, mostly from other gross violator states which commended the Government of China for its efforts and encouraged it to keep on doing what it was doing. The Government of China said it would consider other recommendations. There was also a long list of recommendations the Government of China rejected out of hand.

Here is a partial list of the recommendations the Government of China rejected:

1 Germany recommended that China guarantee all citizens of China the exercise of religious freedom, freedom of belief and freedom of worshipping in private. The Government of China said that it would not accept this recommendation.

2 Canada, Switzerland, United Kingdom, France, Austria, Italy recommended that China publish death penalty statistics. One basis for our conclusion that Falun Gong practitioners were the primary source of organs for transplants was the large increase in transplants coincident with the start of persecution of the Falun Gong. Yet, the only other significant source of organs for transplants, prisoners sentenced to death, remained constant.

The UN rapporteur on torture Manfred Nowak and UN rapporteur on freedom of religion or belief Asma Jahangir have both pointed out that the provision of the death penalty statistics is necessary to determine if any explanation can be given for the discrepancy in the number of transplants between the years 2000 to 2005 and the numbers from identifiable sources of organs for transplants other than Falun Gong practitioners. The Government of China said no to this recommendation of the Universal Periodic Review on death penalty statistics.

3 Canada, the United Kingdom, Hungary, the Czech Republic, France, Sweden and New Zealand recommended that China abolish all forms of arbitrary detention including re-education through labour camps. These forced labour camps produce goods at prices with which the US and other countries can not compete, leading to global unemployment.

Falun Gong practitioners in all forms of detention are blood tested, organ examined and, if they refuse to recant, even after torture, killed for their organs. We interviewed many Falun Gong practitioners who did recant after torture and were released and who told us of this blood testing and organ examination. This blood testing and organ examination are unique to Falun Gong practitioners. Former prisoners who are both Falun Gong practitioners and who are not tell us of this distinctive treatment.

Arbitrary detention facilities are forced organ donor banks. Getting rid of administrative detention and re-education through labour camps will do more than just end abusive labour practices; it will go a long way to ending abusive organ harvesting. The Government of China said no to this recommendation.

4 China is a state party to the Convention against Torture. The Convention obliges states parties to report periodically to an expert Committee on its compliance with the Convention. China's most recent report came up for consideration by the Committee last November. The Committee in its concluding observations recommended that China conduct or commission an independent investigation inot the claims that some Falun Gong practitioners have been subjected to torture and used for organ transplants and to take measures, as appropriate, to ensure that those responsible for such abuses are prosecuted and punished.

David Kilgour and I, who have already conducted an investigation, are independent from the Government of China and the Falun Gong community. The Committee against Torture did not mean to suggest anything different. What they were proposing was an investigation independent from the Government of China with which the Government of China would nonetheless cooperate by giving access to Chinese territory, documents, places of detention and witnesses in China without fear of intimidation or reprisals.

At the Universal Periodic Review Working Group, Canada recommended that China implement the recommendations of the Committee against Torture. The Government of China said no here too.

5 Finland recommended that China take effective measures to ensure that lawyers can defend their clients without fear of harassment. To give one example, Chinese human rights lawyer Gao Zhisheng had invited us in June 2006 to come to China to investigate allegations that practitioners of Falun Gong were being killed for their organs, an invitation which the Government of China rejected.

Shortly after the invitation, on August 15, 2006, Gao was arrested, tortured, prosecuted for inciting subversion, convicted on December 12, and sentenced on December 22 to three years suspended for five years. Though the jail sentence was suspended, he went into house arrest.

After he made public a letter he wrote protesting Chinese Communist human rights abuse, he was abducted, in September 2007, by officials and disappeared. He was returned home briefly in February 2009 and, after he released a statement about his torture, was reabducted. To this recommendation of Finland also, the Government of China said no.

So with the Government of China, we have more than just a denial of the facts. There is a rejection of the standards.

The Government of China, relying on its own particularity, says no to freedom of belief, yes to forced labour, yes to arbitrary detention, no to an independent investigation into the allegations that Falun Gong practitioners are being killed for their organs, no to explaining the discrepancy between sources of organs and volume of organ transplants, no to bringing perpetrators of organ transplant abuse to justice, no to allowing human rights lawyers to defend their clients.

When the Government of China talks about acceptance of human rights "in light of China's national realities", working towards "Chinese-style democracy", having its own "different views on the question of human rights", this is in practice what it means. It is noteworthy that Sudan, Egypt and Algeria, all states with poor human rights records, commended China during the Universal Periodic Review interactive debate for implementing human rights in harmony with its national realities. It seemed as if they were saying: "Good excuse, wish we had thought of it ourselves".

In the face of this assertion of Chinese particularism, I say we must stand for universal human rights values. Freedom of belief is a right which must be respected everywhere, now. Forced labour and arbitrary detention must end everywhere, now. Human rights lawyers should be able to defend their clients in freedom and safety everywhere, now. Credible allegations of human rights violations should be independently investigated and perpetrators brought to justice, everywhere, now. That is what universality means. That is what I encourage all of you here to promote.


David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada