Title China and international human rights : harsh punishments in the context of the International Covenant on Civil and Political Rights / Na Jiang

Published Berlin : Springer, 2014

Table of Contents
1.	A General Theory on International Human Rights Standards					1
1.1.	Sources of the Law					2
1.1.1.	The Quasi-legislative Process					3
1.1.2.	The Interpretation of Human Rights Standards					4
1.2.	Supervising the Law					8
1.2.1.	International Implementation					8
1.2.2.	National Implementation					25
1.3.	Enforcement of the Law					26
1.3.1.	International Enforcement					26
1.3.2.	National Enforcement					28
2.	China's Cooperation (with the International Human Rights System)					33
2.1.	General					34
2.2.	Conflicts					36
2.3.	Recent Developments					39
2.3.1.	China's Position					40
2.3.2.	The EU-China Dialogue					41
2.3.3.	The US-China Dialogue					50
2.3.4.	UN High-Level Visits to China					52
2.3.5.	China as a Member of the UNHRC					54
2.4.	Concluding Remarks					55
3.	The Death Penalty and International Human Rights Law					57
3.1.	General					57
3.2.	The ICCPR					60
3.2.1.	The Right to Life					61
3.2.2.	Capital Punishment					63
3.3.	Optional Protocols					79
3.4.	The CAT					80
3.5.	The CRC					88
3.6.	The CERD					92
3.7.	Regional Human Rights Standards					92
3.7.1.	The ECHR					92
3.7.2.	The ECHR-PN6					93
3.7.3.	The ECHR-PN13					94
3.7.4.	The ACHR					94
3.7.5.	The ACHR-P-DP					96
3.7.6.	The ACHPR					97
3.7.7.	The African Charter on the Rights and Welfare of the Child (ACRWC)					98
3.7.8.	The Arab Charter on Human Rights (ACharter)					98
3.8.	The GC3, GC4, PA1 and PA2					99
3.8.1.	The GC3					99
3.8.2.	The GC4					100
3.8.3.	The PA1					101
3.8.4.	The PA2					102
3.9.	Customary International Law					102
3.9.1.	Substantive Limits to Capitally Punishable Offences					103
3.9.2.	Procedural Restrictions on Its Imposition					108
3.9.3.	The Exemptions of Certain Categories of Persons					114
3.10.	Summary					117
4.	The Death Penalty: China's Practice and Policy					119
4.1.	General					119
4.2.	Legislation					123
4.2.1.	The 1982 Constitution					123
4.2.2.	Substantive Criminal Legislation on the Death Penalty					125
4.2.3.	Procedural Criminal Legislation on the Death Penalty					132
4.3.	Judicial Practice					155
4.3.1.	The Applicable Scope					157
4.3.2.	Other Substantive Issues					160
4.3.3.	Ordinary Procedures for Death Sentences					160
4.3.4.	Procedure for Review of Death Sentences					163
4.3.5.	Procedure for Trial Supervision					164
4.3.6.	The Judicial Situation of Procedural Rights					166
4.4.	Conclusion					183
5.	Forced Labour and International Human Rights Law					187
5.1.	General					187
5.2.	The ICCPR					189
5.2.1.	The Scope of Prohibition of Forced Labour					189
5.2.2.	Other Relevant Provisions					194
5.3.	The UDHR					195
5.4.	The ICESCR					196
5.5.	The CMW					197
5.6.	The CRC					198
5.7.	The CAT					199
5.8.	Subsidiary Instruments					200
5.8.1.	The CLN					200
5.8.2.	The SSFL					201
5.8.3.	The ILO29					201
5.8.4.	The ILO100					203
5.8.5.	The ILO105					203
5.8.6.	The ILO122					204
5.8.7.	The ILO182					204
5.9.	Regional Human Rights Law					205
5.9.1.	The ECHR					205
5.9.2.	The ESC					208
5.9.3.	The ADRDM					209
5.9.4.	The ACHR					210
5.9.5.	The ACHPR					211
5.10.	Possible Customary International Law Concerned					212
5.11.	Conclusion					214
6.	Forced Labour: China's Policy and Practice					215
6.1.	Introduction					215
6.2.	The Chinese Policy of Forced Labour					216
6.2.1.	Official Opinions on RTL and RETL					217
6.2.2.	The Controversy on Both RTL and RETL					219
6.3.	The Practice					222
6.3.1.	The Common Constitutional Basis in Legal Practice					222
6.3.2.	Practices of RTL					225
6.3.3.	Practices of RETL					230
6.3.4.	Reform Measures					239
6.4.	Conclusion					247
7.	Next Steps: China's Human Rights Strategy					249
7.1.	China's Human Rights Strategy: Obstacles and Prospects					249
7.1.1.	China's Inadequate Response to Human Rights Abuses					249
7.1.2.	Prospects for Reform: Better Enforcement of Rights					252
7.1.3.	Preparing for Ratification of the ICCPR: Filling the Gaps					256
7.2.	Possible Participation in International Human Rights Treaties					259
7.2.1.	Improving Human Rights Education					259
7.2.2.	Promoting Human Rights Research					262
7.2.3.	Increasing Human Rights Measures					265
8.	Conclusion					271
8.1.	Assessment of Current Approach to This Research: Advantages and Disadvantages					271
8.1.1.	Advantages					271
8.1.2.	Disadvantages					274
8.2.	China and International Community: Towards Better Understanding and Dialogue					276
8.2.1.	Towards Better Understanding Between Them					276
8.2.2.	Towards Stronger Dialogue Between Them					279
	Appendix					285
	Bibliography					305
	About the Author					325

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Description 1 online resource Contents Introduction -- A general theory on international human rights standards -- China's cooperation (With the international human rights system) -- The death penalty and international human rights law -- The death penalty: china's practice and policy -- Forced labor and international human rights law -- Forced labor: china's policy and practice -- Next steps: china's human rights strategy -- Conclusion -- Appendix Summary This book is designed to introduce law students, legal actors and human rights activists, particularly participants in human rights dialogues with China, to the process and reality of a newly confident China's participation in the international human rights system, albeit with inherent challenges. From an international and comparative perspective, one of the key findings of the author's research is that progress towards human rights depends more on judges than on legislators. Chinese legislators have enacted a series of reforms in order to better protect human rights. Unfortunately, these reforms have not led to greater adherence to China's international human rights obligations in practice. The reforms failed because they have generally been misunderstood by Chinese judges, who often have a limited understanding of international human rights norms. Specifically, this book will examine how judicial misunderstandings have blocked reforms in one specific area, the use of severe punishments, based on international human rights theory and case studies and data analyses. This examination has several purposes. The first is to suggest that China ratify the ICCPR as the next step for its substantive progress in human rights and as a good preparation for its re-applying to be a member of the UN Human Right Council in the future. The second is to explain how judges could be better educated in international human rights norms so as to greatly reduce the use of severe punishments and better comply with China's human rights obligations. The third is to demonstrate how the international community could better engage with China in a manner that is more conducive to human rights improvements. The author's ultimate goal is to enhance dialogue on human rights in China between judges and the Chinese government, between Chinese judges and their foreign counterparts and between China's government and the international community. Another significant aim of this book is to clarify the controversial question of what obligations China should undertake before its ratification of the ICCPR and to re-examine trends in its developing human rights policy after standing down from the Council in late 2012. The tortuous progress of China's criminal law and criminal justice reforms has confirmed that Chinese judges need further instruction on how to apply severe punishments in a manner consistent with international standards. Judges should be encouraged to exercise more discretion when sentencing so that penalties reflect the intent of relevant domestic laws as well as the international human rights standards enumerated in the ICCPR. In order to better educate and train judges, this book contains introductory chapters that examine the severe punishments currently available to Chinese judges from an international human rights perspective. To illustrate how Chinese justice currently falls short of international norms, this paper also examines several cases that are considered to be indicative of China's progress towards greater respect for human rights and the rule of law. These cases demonstrate that China still has a long way to go to achieve its goals, at least before abolishing the death penalty, forced labor and torture Bibliography Includes bibliographical references Notes Online resource; title from PDF title page (ebrary, viewed January 12, 2014) Subject Human rights -- China International law and human rights. Law. Criminal law. LAW -- International. Droit. Sciences sociales. Sciences humaines. Criminal law Human rights International law and human rights Law China. Civil and political rights. Human rights. Capital punishment. Forced labour. International Covenant on Civil and Political Rights (New York, 16 December 1966) China Form Electronic book ISBN 9783642449024 3642449026 3642449018 9783642449017

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