For the research on non-derogable right and states of emergency in China, scholars did more researches on the using of states’ power to derogate and the establishment of legal system of states of emergency, than directly on non-derogable right. This phenomenon seems to prove that, if you want the state to protect human rights, you must firstly assure it does not infringe human rights. In fact, the only difference between the two research approaches is that, the first one pays attentions to the limitations of states’ powers, while the latter emphasizes the protection of non-derogable rights. The ultimate goal of both approaches is virtually identical, namely, advocating the protection of human rights in states of emergency. Nevertheless, the advantages of direct research on non-derogable rights can divert our attentions from states’ powers to civil rights in emergency, which contributes more to protecting human rights in states of emergency.
Accordingly, the development of legal protection of non-derogable right in China will accompany the development of theoretical research. With the influences of ‘SARS’ in 2003, the Chinese government felt deeply the significance of the establishment of legal system of states of emergency, thus took active measures to set up legal system of states of emergency. The most remarkable achievement is the existing constitution’s Fourth Amendment adopted at the second session of the tenth National People's Congress on March 14, 2004, which replaced the ‘martial law’ with ‘state of emergency’. ‘Adding the state of emergency to the constitution makes the current constitution more scientific and it provides a constitutional base for the unification of the existing legal system of states of emergency.’[1] Although a unified legal system of states of emergency has not been established in China, the framework which centers on the ‘article of states of emergency’ of the constitution, including states of war, states of emergency, martial law, law on the urgent handling of public emergency, has been set up. [2]Currently, in order to build up legal system of states of emergency in Chinese characteristic, issues related to states of emergency, especially questions such as how to unify and complete existing legal states of emergency are being heatedly discussed and researched in China. It is undeniable that all these developments are beneficial for protection of human rights in states of emergency in China. Nevertheless, as a best means of protection of non-derogable right, non-derogable rights should be explicitly included in our constitution.
Ⅰ.The Significance of Adding Non-derogable Rights to the Constitution
Protecting non-derogable right is very important to protection of human rights. Some major global and regional covenants has provided some provisions on non-derogable right. All three famous international human rights treaties, International Covenant on Civil and Political Rights (ICCPR), European Convention on Human Rights (ECHR), American Convention on Human Rights (ACHR), have listed non-derogable rights in their texts. The derogation clause of international human rights conventions is called the ‘cornerstone’ of the entire system for protecting human rights, and as the most important provision of human rights treaties.[3] As the first word of General Comment no. 29, States of Emergency (Article 4) adopted by Human Rights Committee has said, ‘Article 4 of the Covenant is of paramount importance for the system of protection for human rights under the Covenant.’[4] Non-derogable right is a valuable core of protecting human rights of this article. In addition, International Law Association’s Paris Minimum Standards of Human’s Right Norms in a State of Emergency adopted by International Law Association (ILA) in 1984 has offered a minimum standard of protection of human rights in a state of emergency, which can be used by every state as a reference for protecting non-derogable right. Moreover, there are many states whose constitutions include ‘non-derogable right clause’. The reason why international human rights treaties and many states’ constitutions all include provisions of protecting non-derogable rights is that non-derogable right is very significant to human rights’ protection, and that it is a minimum standard and an ultimate line of defense of protection of human rights in a state of emergency. Therefore, since the constitution is deemed as ‘guarantees of fundamental civil rights’ and a fundamental law of a country’s legal system, ‘protecting non-derogable right in states of emergency’ should be not only indispensable contents of a constitution, but also an obligation which a state should bear.
(I)Adding Non-derogable Right to the Constitution Is Beneficial for Implementing Rule of Law.
Rule of law requests that any state organ exercises powers strictly according to the constitution and laws. It is the basis of existence of modern political nations, and it is also guarantee of protecting human rights. However, in a state of emergency, eliminating the crisis and restoring the normal order seems to become an overwhelming value, while rule of law is more easily to lose its respectable status than in normal states. More severely, rule of law might be abandoned and sacrificing fundamental rights of citizens for saving nation’s life are taken for granted. In his book Political Theology published in 1927, Carl Schmitt ------ a famous German jurist and politician said that, in states of emergency, the constitution and laws must concede, and the powerful nation eventually overwhelms rule of law. The existence of the state proves that it has more importance than the law’s effectiveness has. Policies are no longer restricted by any law and they virtually become absolute.[5] Although the argument mentioned above is unacceptable because of its denial of rule of law, it is not hard to see that abandoning the rule of law in states of emergency is of danger for protecting human rights. Establishing a legal system of protecting non-derogable right in the constitution conduces to setting up principle of rule of law in states of emergency, that is to say, even in states of emergency which threaten severely national life, the state should still use the power of emergency in accordance with the principle of rule of law. Therefore, non-derogable right sets up a restriction on the employment of the state’s power to derogate and prevents the state from abuse of powers. Additionally, non-derogable right provides a minimum standard of human rights and builds up an ultimate line of defense for every person, which can effectively protect human rights in public emergency.
(II) Adding Non-derogable Right to the Constitution Conduces to Preventing Autarchy
Democracy emphasizes citizens’ determining and participating in public powers, the disadvantage of which is its intricate course and low efficiency. Thus, since agreements are harder to make, it is often difficult to get a uniform determination quickly in a democratic system. In contrast with democracy, autarchy is often preferred by the state in states of emergency because of fewer participants and higher efficiency of decision-making. In the book ‘The Social contract’, Rousseau has argued the autarchy. He claimed that, when a state was at stake, people should stop the sacred powers of laws. Moreover, Rousseau argued that by a type of special means, people should resign the responsibility of maintaining the security of the country to a respected person. If situations were so dangerous that the dignities of laws become an obstacle to laws’ implementing, people should designate a top chief who can stop carrying out all laws and at the same time suspend the authority of sovereignty, because the chief purpose of people is preventing the death of the state under this circumstance.[6] From the perspective of implementing the principle of rule of law we have argued above, Rousseau’s views is unacceptable. On the other hand, a state often uses emergency power to derogate fundamental civil rights in states of emergency. Although the chief purpose of the derogation on it is for removing crisis, restoring regular order quickly, and the substantial significance of the derogation is protecting human rights in states of emergency. A state shall bear the obligation of maintaining the benefits of its peoples, and shall undertake protecting human rights as its responsibility. Thus even in the case of derogating human rights, the state still needs to take protecting human rights in a long term and wide scope as its final purpose, and not just for the purpose of conveniences in governing. As professor Han Dayuan said, ‘The first thing to do for protecting human rights in a society is to guarantee the security of the country and the integrity of territory------the stability of the regime. When international or national crisis breaks out, the protection of human rights may lose its reliable guarantee. In this sense, maintaining the security of the country is the premise of protecting human rights.’[7] The history has proved that autarchy is apt to lead to infringing human rights, which violates the ultimate purpose of legal system of states of emergency. Therefore, it is absolutely unacceptable that the state carries out autarchy in states of emergency only for higher efficiency of decision-making, because doing so is equal to attending to trifles and neglecting the essentials. The focuses of establishing legal system of states of emergency should be paid on two questions, the first one is how to promote higher efficiency of decision-making of the states; The second one is how to prevent autarchy by laying restrictions on powers of the state. To solve these questions, the state must establish a new democratic system in states of emergency, which can provide higher efficiency of removing crisis, restoring order on the one hand, and prevent autarchy on the other hand. Adding non-derogable right to the constitution is one of good solutions. Non-derogable right provides a minimum standard of human rights, most important of all; it imposes a burden on the state in states of emergency. Under this burden, when dealing with the crisis in states of emergency, the state must recognize that the ultimate purpose of all things including increasing the efficiency of decision-making which she should do is for protecting and respecting human rights.
(III)Adding Non-derogable Right to the Constitution Is Beneficial for Dealing With the Conflicts between Personal Interests and Public Interests, and It Is also Helpful to Harmonious Coexistence of Powers and Rights in States of Emergency.
From the perspective of benefits, non-derogable right virtually embodies an essential principle that public benefits aren’t absolutely superior to all personal benefits, but that some specific personal benefits take precedence of public benefits in any time. Accordingly, legal rights representing these specific personal benefits should not be infringed in any time. Personal benefits are the most basic public benefits. It is from this angle that personal benefits embodied by non-derogable rights are the most basic elements and inseparable part of public benefits safeguarded by the state in states of emergency. The values of both personal benefits represented by non-derogable rights and public benefits are consistent. In these senses, the scope of public benefits that the state wants to save in states of emergency certainly includes protecting personal benefits embodied by non-derogable rights. On the contrary, if non-derogable rights are derogated, public benefits are hard to avoid being destroyed. Apparently, non-derogable right provides every human being a space that the state cannot interfere with even for public benefits and that prevents the state from abuse of powers. Thus, non-derogable rights offer human rights in states of emergency an absolute legal guarantee. On the other hand, non-derogable right establishes a minimum standard of human rights in states of emergency and they illustrate that protecting human rights in states of emergency has absolute significance. In modern legal society, a state which cannot guarantee its citizens a minimum standard of subsistence cannot guarantee the subsistence of its citizens. It is natural that if the subsistence of citizens cannot be guaranteed, the existence of the state is hard to be guaranteed too. Therefore, if the existence of the state cannot be guaranteed, what significance does restoring normal order has? In these senses, non-derogable right is of significance to harmonious coexistence of emergency powers of the state and fundamental civil rights in states of emergency and they are beneficial for safeguarding the state’s existence and restoration of normal order.
II. The System of Constitutional Rights in the Existing Constitution of China
Since the People’s Republic of China was founded in 1949, four constitutions have been enacted respectively in 1954,1975,1978 and 1982. The Constitution of 1982, i.e. the current constitution, was produced under the historical background in which Chinese government began to carry out the policy of openness and reform, build socialistic legal system across-the-board after the Third Plenary Session of the 11th Central Committee of the Communist Party of China was held. The Constitution of 1982 is regarded as the best one among four constitutions, because it adheres to ideological guideline of emancipating the mind, seeking truth from facts to deal rightly with historical issues, amends and complements bravely the three forgoing constitutions, which makes its substances and formation more scientific and complete. In addition, being amended by four times,[8] the Constitution of 1982 is better to meet the requirement of socialistic modern development of our country. Moreover, the fact that the Constitution of 1982 was enacted with reference to successful experiences of establishing constitutionality of other countries, especially it was adapted to the trends of development of international protection of human rights , embodies completely the spirit of ‘advancing with time’ of the Constitution of 1982.
Based on historical lessons, drafters of the Constitution of 1982 laid more emphasis on the status of fundamental civil rights in the constitution’s whole substances, and then protecting fundamental civil rights is regarded by this constitution. For the part of layout of provisions, the Constitution of 1982 takes ‘the Fundamental Rights and Duties of Citizens’ as the second chapter ahead of the third chapter of ‘the Structure of State’, which is very different from the three foregoing constitutions in that the three latter place ‘The Structure of State’ a position prior to ‘Fundamental Rights and Duties of Citizens’. Therefore, the Constitution of 1982 is consistent with rationale of modern constitution due to the fact that it recognizes rightly the relations between civil rights and state powers, and embodies the spirit of ‘ people first’. For the part of substances of provisions, based on the specific situations of our county, the Constitution of 1982 stipulates more complete fundamental civil rights than do the three foregoing constitutions. The second chapter (from Article 33 to Article 50) stipulated in detail fundamental civil rights which according to classification of traditional constitutional theory can be categorized as right of equality, right of freedom, political right, social right and right to relief.
(I)Right of Equality
The principle of equality before the law was confirmed by the Constitution of 1954, but it was not included by the Constitution of 1975 and the Constitution of 1978. The paragraph 2 of Article 33 of the Constitution of 1982 stipulates that: ‘All citizens of the People's Republic of China are equal before the law’.
(II)Right to Freedom
The detailed stipulations for the right of freedom of citizens made by the Constitution of 1982 refer such following contents as:
(i) Freedom of speech, the press, assembly, association, procession and demonstration
Article 35 of the Constitution of 1982 stipulates that: ‘Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.’
(ii) Freedom of religious belief
Detailed contents are prescribed by the Constitution of 1982 in its Article 36 as follows: ‘Citizens of the People's Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination’.
(iii)Personal freedom of citizens is inviolable
Article 37 of the Constitution of 1982 stipulates that: ‘Personal freedom of citizens of the People's Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people's procuratorate or by decision of a people's court, and arrests must be made by a public security organ. Unlawful detention or deprivation or restriction of personal freedom of citizens by other means is prohibited, and unlawful search of the person of citizens is prohibited.
(iv) Dignity of citizens is inviolable
Article 38 of the Constitution of 1982 prescribes that: ‘The personal dignity of citizens of the People's Republic of China is inviolable. Insult, libel, false accusation or false incrimination directed against citizens by any means is prohibited’.
(v) The residences of citizens are inviolable
Article 39 of the Constitution of 1982 prescribes that: ‘The residences of citizens of the People's Republic of China are inviolable. Unlawful search of, or intrusion into, a citizen's residence is prohibited’.
(vi) Freedom and privacy of correspondence of citizens are protected by law
Article 40 of the Constitution of 1982 prescribes that: ‘Freedom and privacy of correspondence of citizens of the People's Republic of China are protected by law. No organization or individual may, on any ground, infringe upon citizens freedom and privacy of correspondence, except in cases where, to meet the needs of state security or of criminal investigation, public security or procuratorial organs are permitted to censor correspondence in accordance with procedures prescribed by law.’
(III)Political Right
Some contents concerning political rights of citizens are stipulated in detail by the Constitution of 1982 with reference to such rights as:
(i) Right to vote and stand for election
Article 34of the Constitution of 1982 stipulates that: ‘All citizens of the People's Republic of China who have reached the age of 18 have the right to vote and stand for election, regardless of ethnic status, race, sex, occupation, family background, religious belief, education, property status or length of residence, except persons deprived of political rights according to law’.
(ii) Right to criticize and make suggestions
The paragraph 1 of Article 41 of the Constitution of 1982 stipulates that: ‘Citizens of the People's Republic of China have the right to criticize and make suggestions regarding any state organ or functionary’.
(IV)Social Right
The Constitution of 1982 has set up a basic protective system for social rights of citizens by some provisions:
(i) Right to work
Article 34 of the Constitution of 1982 stipulates that: ‘Citizens of the People's Republic of China have the right as well as the duty to work. Through various channels, the state creates conditions for employment, enhances occupational safety and health, improves working conditions and, on the basis of expanded production, increases remuneration for work and welfare benefits. Work is a matter of honor for every citizen who is able to work. All working people in state-owned enterprises and in urban and rural economic collectives should approach their work as the masters of the country that they are. The state promotes socialist labor emulation, and commends and rewards model and advanced workers. The state encourages citizens to take part in voluntary labor. The state provides necessary vocational training for citizens before they are employed’.
(ii). Right to get material assistance
Article 45 of the Constitution of 1982 stipulates that: ‘Citizens of the People's Republic of China have the right to material assistance from the state and society when they are old, ill or disabled. The state develops social insurance, social relief and medical and health services that are required for citizens to enjoy this right’.
(iii) Right to receive education
Article 46 of the Constitution of 1982 stipulates that: ‘Citizens of the People's Republic of China have the duty as well as the right to receive education. The state promotes the all-round development of children and young people, morally, intellectually and physically’.
(iv) Right to engage in cultural pursuits
Article 47 of the Constitution of 1982 stipulates that: ‘Citizens of the People's Republic of China have the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits. The state encourages and assists creative endeavors conducive to the interests of the people that are made by citizens engaged in education, science, technology, literature, art and other cultural work’.
(V)Remedy Right
Remedy right is a very significant civil right. Most of core contents of remedy right are included in the Constitution of 1982.
(i) Right to make complaints or charges, or exposures
Article 41 of the Constitution of 1982 stipulates that: ‘Citizens have the right to make to relevant state organs complaints or charges against, or exposures of, any state organ or functionary for violation of the law or dereliction of duty; but fabrication or distortion of facts for purposes of libel or false incrimination is prohibited. The state organ concerned must deal with complaints, charges or exposures made by citizens in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures or retaliate against the citizens making them’.
(ii) Right to compensation
The paragraph 3 of Article 41 of the Constitution of 1982 stipulates that: ‘Citizens who have suffered losses as a result of infringement of their civic rights by any state organ or functionary have the right to compensation in accordance with the law’.
Besides the fundamental civil rights mentioned in Chapter 2 of Constitution 1982, some rights regarded by drafters as important are stipulated in other provisions. For example, Article 13 in Chapter 1 ‘General Principle’ stipulates that: ‘The lawful private property of citizens may not be encroached upon. The state protects by law the right of citizens to own private property and the right to inherit private property. The state may, for the public interest, expropriate or take over private property of citizens for public use, and pay compensation in accordance with the law’. Paragraph 1 of Article 134 in Chapter 3 ‘The Structure of the State’ stipulates that: ‘Citizens of all China's nationalities have the right to use their native spoken and written languages in court proceedings. The people's courts and people's procuratorates should provide translation for any party to the court proceedings who is not familiar with the spoken or written languages commonly used in the locality.’ According to the position where these provisions were placed, these rights are apparently not regarded by the Constitution of 1982 as fundamental rights of citizens. However, these rights are those stipulated by the current constitution after all. Therefore they are also constitutional rights and are more important in potency than ordinary legal rights.
In addition to constitutional rights mentioned above, more attentions we should pay particularly are that ‘respecting and protecting human rights’ is taken as the first article (Article 33) of Chapter 2 ‘Fundamental Rights and Duties of Citizens’. This fact not only further emphasizes the importance of status of fundamental civil rights in substances of the current constitution, but also identifies the ‘respecting and protecting human rights’ as a significant constitutional principle. Therefore, ‘respecting and protecting human rights’ become an important constitutional obligation imposed on the state.
In a word, provisions concerning constitutional rights in the Constitution of 1982 constitute the current system of constitutional rights of China. All the constitutional rights are the core substances of the system of protecting human rights set up by our internal laws, and are the basis of justifications of other legal rights.
III. Analysis of Non-derogability of Constitutional Rights in the Constitution of 1982
The fact that ‘states of emergency’ has become a subject matter regulated by the Constitution of 1982 justifies application of the system of states of emergency by the state. Although the Constitution of 1982 does not clearly identify the state power to derogate in states of emergency, as a country that has signed ICCPR, apparently, actions conducted by the state to take measures to derogate the civil rights in states of emergency are not inconsistent with the provisions of derogation article of ICCPR. Moreover, the doctrine of state necessity in the international law can also become a justification for the state to exercise its power to derogate in states of emergency. Under these circumstances, identifying as soon as possible a list of non-derogable rights among all the constitutional rights in the current constitution is very significant to protect fundamental civil rights in states of emergency. Apparently, it is not only an urgent but also an important task. Certainly, it is a difficult job. The reason is very simple. It is clear that finding a standard is the key to identify whether a civil right can be derogated by the state or not in states of emergency. However, there is not a uniform criterion to judge the non-derogability of rights in the current international community. The difference of list of non-derogable rights among ICCPR, ECHR and ACHR is a good example. Under these circumstances, what is the standard we should refer to while identifying the list of non-derogable rights among constitutional rights in the current constitution? I think we should take characters of non-derogable rights as the main standard to judge whether a civil right can be derogated or not in states of emergency. Namely, a civil right that is characterized by being fundamental to survival of a person or is a minimum standard for maintaining personal subsistence should be non-derogable. Concretely to say, firstly, because the four common non-derogable rights listed by ICCPR, ECHR and ACHR, i.e. the right to life, freedom from torture, protection against slavery, protection against retrospective criminal penalties have been deemed universally as fundamental to survival of persons by international community, they should be qualified as non-derogable. Secondly, in addition to non-derogable rights mentioned above, other non-derogable rights included in ICCPR should also be classified as non-derogable in view of meeting the requirement of performing international obligations after our country ratified the convention. Finally, the list of non-derogable rights should include those that are indispensable to offer procedural guarantees for preventing non-derogable rights from being derogated by the state, such as those pointed by Human Rights Committee in its No. 29 General Comment[9]. According to this standard, I have a try to classify the current constitutional rights stipulated in the Constitution of 1982 as follows:
(I)Non-derogable rights：
Right to equality (paragraph 2 of Article 33);
Freedom of religious belief (Article 36);
Rights to dignity (Article 38);
The residences of citizens are inviolable (Article 39);
Right to compensation (paragraph 3 of Article 41).
(II)Derogable rights：
Property right (paragraph 1of Article 13)
Right to inherit (paragraph 2of Article 13)
Right to compensation (paragraph 3 of Article 13)
Right to vote and stand for election (Article 34);
Freedom of speech, the press, assembly, association, procession and demonstration (Article 35);
Freedom of the person (Article 37);
Freedom and privacy of correspondence (Article 40);
Right to make complaints or charges, or exposures (paragraph 1 of Article 41);
Right to work (Article 42);
Right to get material assistance (Article 45);
Right to receive education (Article 46);
Right to engage in cultural pursuits (Article 47).
We can see from the classification mentioned above that those rights listed as non-derogable among constitutional rights in the current constitution are very different from those included in ICCPR, both in the name and in the meaning. The direct reason is that constitutional rights stipulated in the Constitution of 1982 are very different both in the name and in the meaning from those included in ICCPR, although most of the rights stipulated by ICCPR are consistent with the principle of respecting and protecting human rights in our current constitution and are protected by laws in practice. For example, such rights as the right to life, freedom from torture, protection against slavery, protection against retrospective criminal penalties, right to freedom of thought, conscience, right not to be imprisoned merely for failure to fulfill a contractual obligation are not clearly stipulated by the Constitution of 1982, but in practice most of those rights are protected by laws in our country. In these senses, the system of constitutional rights set up by the Constitution of 1982 is not only incomplete in the level rationale of the constitution, but also incapable of satisfying the requirement of ICCPR. Especially, lack of the four common non-derogable rights stipulated by three international treaties in the current constitution would lead in theory to an assumption that these four rights might be derogated by the state in states of emergency. Needless to say, an assumption like this is not only inconsistent with provisions of international treaties but also contrary to the principle of respecting and protecting human rights in the current constitution. Therefore, the current system of constitutional rights established by the current constitution is not beneficial for our country to ratify ICCPR in the future.
In conclusion, the premise which setting up a scientific list of non-derogable rights in our constitution is based on is that we should conduct more research on the system of rights of international treaties, especially on that of ICCPR, and then amend and complete duly the system of constitutional rights in the current constitution. Therefore, we should further complete theories of constitutional rights that the enactment of the current constitution is dependent on and make the establishment of the system of constitutional rights embody the spirit of universal human rights. Moreover, we should classify constitutional rights as universal rights and citizen rights, which will make the system of constitutional rights more scientific. Furthermore, combining with specific situations of our country, we should properly incorporate rights stipulated in ICCPR into the system of constitutional rights of our constitution and in doing so, the meaning of constitutional rights in our constitution will become more abundant and adaptable to the trend of international protection of human rights. Finally, after a scientific and normative system of constitutional rights is established, we should try to identify a list of non-derogable rights that meet the requirement of not only specific situation of our country but also ICCPR, and then promote the principle of non-derogability as indispensable principle that must be implemented by the state in states of emergency. At the same time, we should also take the principle of exceptional threat, the principle of proportionality, and the principle of temporariness as indispensable principles that the state in the states of emergency must observe to take measures to derogate civil rights, in order for human rights in states of emergency to be protected as much as possible.
IV. Problems Related to Protecting Non-derogable Right in China
With the deep influences of ‘SARS’ in 2003, the Chinese government and some related experts, scholars further felt the significance of legal system of states of emergency, and at the same time, they all recognized the urgency of the establishment of this system. In addition to adding ‘a state of emergency’ to the constitution, the current constitution’s Fourth Amendment adopted at the second session of the tenth National People's Congress on March 14, 2004 has taken ‘the state respects and protects human rights’ as its provision, which has the ‘milestone’ significance in the history of protecting human rights in China. Therefore, as an important part of protecting human rights in states of emergency, non-derogable right certainly should be inalienable contents of ‘the state respects and protects human rights’. Moreover, an even more significant point is that, ‘human rights’ in the 2004 Amendment should point to universal human rights. Namely, the state’s of obligation of protecting human rights is broadened to protect not only human rights of citizens but also human rights of all natural persons who are living or working within the territory of People’s Republic of China. This means that the state’s responsibility of protecting human rights is extended from domestic law to international law.[10] After signing the ICCPR on October 5, 1998, our government will ratify it some time or other. Thus, setting up complete legal system of protecting non-derogable right will meet the needs of international protection of human rights, and it is also an important international duty which our government has to perform in the future. Considering these, it is a necessary task for China to consider and research on problems related non-derogable rights. At present, there are several major problems related to protecting non-derogable right in China:
(I)Legal System of States of Emergency Is Not Complete
As we have discussed above, non-derogable right and states of emergency are inseparable and interrelated issues, legal systems of both of which are the basis of protection of human rights in situations of emergency. Apparently, the preconditions of protecting non-derogable rights are to establish a complete legal system of non-derogable right. However, a complete legal system of non-derogable rights has a close tie with a complete legal system of states of emergency. We also can say that a complete legal system of states of emergency is prerequisite to a complete legal system of non-derogable rights. Non-derogable rights would not be protected effectively if either of the two systems was not complete. Although there is not a unified legal system of states of emergency in China now, the framework which centers on the ‘article of states of emergency’ of the constitution, including states of war, states of emergency, martial law, the law on the urgent handling of public emergency, has been set up. The major problems in existing provisions related states of emergency are as follows: Firstly, the meaning of ‘states of emergency’ is not clear. The legal system of states of emergency is a ‘two-edge sword’. On the one hand, this system is likely to be used to limit the emergency powers of the states effectively only if the definition of ‘states of emergency’ is clear. On the other hand, this system is likely to be used as a ‘legal means’ to infringe human rights if the meaning of ‘states of emergency’ is vague. Under the circumstance of no clear meaning of ‘states of emergency’, the state organ and its personnel could easily exceed their authority, and incident of discretionally infringing fundamental rights of citizens could easily happen. Therefore, a clear definition is very important to protect human rights including non-derogable rights in states of emergency. Although the Fourth Amendment to the current constitution has replaced the ‘martial law’ with ‘state of emergency’, it only writes the term ‘states of emergency’ into the constitution. The meaning of ‘states of emergency’ in the provisions included by both the constitution and laws is far from clear. The fact that the provisions concerning conditions of states of emergency, procedure, ending and other related things are almost blank undoubtedly makes these provisions difficult to be implemented. Secondly, there is not a specialized law of the states of emergency in China until now. Although in addition to article of states of emergency of the constitution, the provisions related to states of emergency can be seen in some specific laws, administrative regulations and treaties which China has ratified or concluded. Interpretations of states of emergency in these provisions vary widely from one to other. For example, both The Basic Law of Hong Kong and The Basic Law of Macao read that the Standing Committee of the National People’s Congress has the right to decide that the Region is in a state of emergency, whereas which state organ has the right to declare states of emergency is not explicitly specified. Moreover, some provisions related to states of emergency do not explicitly indicate the principle of rule of law embodied in Article 4 of ICCPR. In conclusion, the problems mentioned above make the existing provisions related to states of emergency more difficult to be carried out, and they are also not beneficial for specifying the limit of emergency powers of the state.
(II) Non-derogable Rights Are not Covered by the Provisions of the Current Constitution
With the development of protecting human rights in China, most legal rights are covered by the constitution, but ‘non-derogable right’ is not included in the text of the constitution until now. Among many results the constitution does so is one thing: at the angle of theory, the state organ can exercise emergency powers to derogate fundament civil rights limitlessly in states of emergency. If things like these become a reality, the possibility that human rights are infringed arbitrary in states of emergency will be increased. In addition, all non-derogable rights are fundamental to human beings. If these rights are not protected, a person cannot exist or cannot exist with dignity. In these senses, in fact, the purpose of protecting non-derogable rights is consistent with the spirit of our constitution. However, the fact that the provisions of the constitution do not include non-derogable rights will lead to a result like this: protecting non-derogable rights has not justification. Certainly, this result contradicts the spirit of ‘respect and protect human rights’ of our constitution. Moreover, Article 51 of the current constitution stipulates that, citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens. This article is regarded as an important principle carried out by citizens exercising rights and it applies to not only normal states and but also states of emergency. Since the restrictions set up by this article are general, the scope of the restrictions can be understood as covering all fundamental rights and freedom. According to this logic, it seems that we can get at a conclusion that even non-derogable rights can be restricted by the state through using this article. This conclusion not only contradicts the spirit of our constitution, but also dissatisfies the request of international human rights treaties. Furthermore, as mentioned above, a unified legal system of states of emergency has not been set up and the intension and extension of ‘the states of emergency’ have not been clarified by the constitution and laws in our country. Under this circumstance, the fact that non-derogable rights are not covered explicitly by the constitution maybe further provides a wider space for expanding state powers, which is contrary to the spirit of protecting human rights in our constitution.
V. Several Suggestions with Regard to Establishing Legal System of Protecting Non-Derogable Rights
The fact that the Fourth Amendment to the current constitution has replaced the ‘martial law’ with ‘state of emergency’ itself is very significant for protecting fundamental civil rights including non-derogable rights. Firstly, the fact that ‘states of emergency’ was written into the constitution has indicated that the significance which legal system of states of emergency has for building a complete legal system and protecting human rights has been well recognized by our government and people in China. Because once ‘states of emergency’ is introduced by our constitution, the related legal systems including system of protecting non-derogable rights must be set up step by step in the future. Secondly, that ‘states of emergency’ has been introduced will make the state use international human rights treaties as reference while enacting some related laws. Therefore, the domestic protection of human rights will be well consistent with the trend of international protection of human rights. Thirdly, protecting human rights has become an unobstructed trend in international society. The system of states of emergency has long been a system of protecting human rights in the international human rights law. Thus, for a state party of an international covenant on human rights, it must build a legal system of states of emergency which meets the request of the covenant, on the other hand, for a non-state party of a international covenant on human rights, taking China for example, considering that it is likely to be a state party of the international treaty of human rights, after ‘states of emergency’ has been written into the constitution, the state had better set up related legal systems in accordance with international human rights treaty. The fact that ‘states of emergency’ has been written into the constitution is only the first step to establish legal system of protecting non-derogable rights. Several suggestions to set up a complete legal system of protecting non-derogable rights are as follows:
(I)Clarifying the Meaning of States of Emergency in the Constitution and Setting up A Unified Legal System of States of Emergency
Clarifying the meaning of states of emergency in the constitution is not only a necessary premise of establishing a complete, scientific legal system of states of emergency, but also an indispensable guarantee of setting up a legal system of protecting non-derogable rights as well. Clearly identifying the meaning of states of emergency would be helpful for various levels of states organ to increase consciousness of responsibility, thus preventing the occurrence of citizens’ fundamental rights to freedom from being infringed. Clarifying the meaning of states of emergency requests that, on the one hand, both the intension and the extension of ‘states of emergency’ should be clearly interpreted, on the other hand, some important provisions such as conditions of proclaiming states of emergency, procedure, duration, ending, extending, the state organ responsible for command as well as the rights and obligations of citizen in states of emergency and so forth must be explicitly enacted. In a word, the term ‘states of emergency’ must be stipulated with sufficient clarity so that it informs the state organs of the limit they must comply with to exercise emergency powers in states of emergency. Article 4 of ICCPR, Article 15 of ECHR, Article 27 of ACHR, International Law Association’s Paris Minimum Standards of Human’s Right Norms in a State of Emergency adopted by ILA and Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights adopted by the United Nations, Economic and Social Council, the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities have stipulated some issues related to states of emergency. When clarifying the meaning of states of emergency in our constitution, we can use all these important provisions as reference and at the same time we also must consider properly the actual situation of our country. Moreover, considering that our state can turn out to be a state party of ICCPR in the future, we particularly should do more research and analysis on Article 4 of ICCPR and General Comment no. 29, states of emergency (article 4) adopted by Human Rights Committee and in doing so, we are likely to make our legal system of states of emergency meet the request of performing international obligations. In addition, our state should establish a unified legal system of states of emergency in accordance with the constitution. Firstly, our state should enact as soon as possible a specialized law of states of emergency, which should specify such applications of ‘Article of states of emergency’ of the constitution as conditions of proclaiming states of emergency, procedure, duration, ending, extending, the state organ responsible for command as well as the rights and obligations of citizen in states of emergency and so forth. Secondly, our state should unify as quickly as possible the separate single laws concerning states of emergency. Especially, some important provisions such as conditions of proclaiming states of emergency, procedure, duration, ending, extending, the state organ responsible for command as well as the rights and obligations of citizen in states of emergency and so forth should be unified to be consistent with the constitution and the specialized law of states of emergency. Finally, all provisions related to states of emergency including those of the constitution, laws, administrative regulations must embody the principle of rule of law ------ the more urgent and complicated the situations are, the more the principle of rule of law should be carried out to respect and protect human rights.
(II)Provisions Related to Non-derogable Rights Should Be Included in the Constitution
First of all, the precondition that protecting a right is justified is that the right protected must be constitutionally protected in advance. Thus, that provisions related to non-derogable rights should be written in the constitution is the premise of setting up a legal system of protecting non-derogable rights in China. The fact that ‘non-derogable rights’ are written into the constitution can provide a justification for protecting non-derogable rights, which is consistent with the spirit of ‘respect and protect human rights’ of the constitution. In addition, considering that ‘states of emergency’ has been included into the constitution, the fact that protecting non-derogable rights is recognized by the constitution can make legal system of states of emergency more complete and scientific. Secondly, in view of specific situations of our country, the method of listing directly ‘which rights are non-derogable’ in the constitution should be preferred. By doing so, the minimum standard of human rights in states of emergency will be clear and the restrictions imposed on the emergency powers of stats organ will be explicit. Thirdly, Article 4 of ICCPR, Article 15 of ECHR, Article 27 of ACHR, International Law Association’s Paris Minimum Standards of Human’s Right Norms in a State of Emergency adopted by ILA and Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights adopted by United Nations, Economic and Social Council, the U.N.Sub-Commission on Prevention of Discrimination and Protection of Minorities have stipulated some issues related to protecting non-derogable rights in states of emergency. While listing the non-derogable rights in the constitution, we should use properly all these provisions above as reference. Moreover, considering that our state can turn out to be a state party of ICCPR in the future, we particularly should do more research and analysis on Article 4 of ICCPR and General Comment no. 29, states of emergency (Article 4) adopted by Human Rights Committee and in doing so, in view of the situations of our country, we are likely to set up a scientific, Chinese characteristic list of non-derogable rights, which at the time also meets the request of performing international obligations in the future. In fact, at the angle of the rationale and the spirit of protecting human rights, the seven rights listed by non-derogable provisions of ICCPR could be understood as the main contents of fundamental international human rights, they reflect contents in three aspects:(1) Rights to personal life and the survival rights to the collective group; (2) Fundamental right to recognition everywhere as a person, right of freedom as an individual body; (3) Right in equality. [11]Therefore, we can see that the values of all seven non-derogable rights included in the list of non-derogable rights of the ICCPR------ the right to life, freedom from torture, protection against slavery, protection against retrospective criminal penalties, right to recognition as a person before the law, right to freedom of thought, conscience and religion, right not to be imprisoned merely for failure to fulfill a contractual obligation, are not contrary to values of existing legal system of protecting human rights of China. Therefore, we can consider taking all these seven rights as rights included in the list of non-derogable rights of the constitution in the future.[12] Finally, all provisions related to states of emergency including those of the constitution, laws, administrative regulations must embody the principle of non-derogability------at any time can non-derogable rights not be derogated by the state.
(III) Further Completing the Existing System of Right to Relief
‘No right will be protected without relief. The relief of rights is the last means for protecting rights, and it is also an indispensable phase for protecting rights.’[13] No matter how complete and detailed the non-derogable rights are stipulated by the constitution, laws and administrative regulations, the provisions will become insignificant without corresponding system of relief of rights. A law without provisions on relief shall be an uncompleted law. Jurisprudence relief shall always be the indispensable and essential part in every legal department. Likewise, the relief of rights is an absolutely necessary element of a complete system protecting non-derogable rights. Chinese constitution and laws have granted citizens the right to pursue relief. The paragraph1 of Article 41 of the current constitution stipulates that, Citizens of the People’s Republic of China have the right to criticize and make suggestions regarding any state organ or functionary. Citizens have the right to make to relevant state organs complaints or charges against, or exposures of, any state organ or functionary for violation of the law or dereliction of duty.[14] The paragraph 3 reads that, citizens who have suffered losses as a result of infringement of their civic rights by any state organ or functionary have the right to compensation in accordance with the law.[15] According to this provision, article 121 of General Principles of the Civil Law of the People’s Republic of China reads that, if a state organ or its personnel, while executing its duties, encroaches upon the lawful rights and interests of a citizen or legal person and causes damages, it shall bear civil liability.[16] Law of the People’s Republic of China on State Compensation has clarified issues related to state compensation in detail at the level of law. Furthermore, the criminal liability that a state organ or its personnel must bear, after it severely encroaches upon the lawful rights and interests of a citizen or legal person and causes damages has been stipulated by the Criminal Law of the People’s Republic of China. All the methods of relief introduced by the constitution, laws, administrative regulations can be used by citizens to claim, after their non-derogable rights are derogated by the state organ or its personnel in the states of emergency. Certainly, the methods of relief offered by current laws are general after all. We should amend and complete properly the existing system of relief and make its protective measures for non-derogable rights more specific and explicit, in view of the significance of protecting non-derogable rights in states of emergency. The system of relief should clearly identify the means of administrative relief and jurisprudence relief for the victims who have been inappropriately or illegally treated during the state of emergency. Infringement on non-derogable rights caused by derogatory behaviors of the state organ should be rectified and relieved through administrative and jurisprudence measures. Furthermore, because the non-derogable right is significant and indispensable to human beings, and damages caused by derogating them is more severe than that resulted from derogating ordinary rights, the liabilities shouldered by state organ due to derogating the non-derogable right should be increased aptly.
(IV) Establishing A Mechanism of Surveying Emergency Powers of the State
Once ‘states of emergency’ and ‘non-derogable rights’ are stipulated constitutionally, the actions of the state organ in states of emergency should become a subject matter adjusted by the constitution. Accordingly, the actions of the state exercising emergency powers in states of emergency should be subjected to the judicial review. ‘Judicial review can play an important role in supervising the implementation of constitutional law mainly through the judge’s judgment of constitutionality of laws and governmental behaviour.’[17] Therefore, a scientific and complete constitutional review system is an indispensable system for protecting non-derogable rights. At present, although there is a rough mode of judicial review in China at the level of constitutional text,[18] there is virtually not a constitutional review system at the level of practice. The specific situation of our country makes the issue of constitutional review system a more complex question, for that means a substantive constitutional review system is difficult to be set up in short term. Under the circumstance, the constitution and related laws should designate a review organ which is empowered to review both substantively and procedurally the actions of the states organ in states of emergency. The major significance of establishing the review organ is that it can increase the awareness of responsibility of the state using emergency powers on the one hand, and it can reduce the incidences of infringing human rights including non-derogable rights due to abuse of state powers on the other hand. Moreover, setting up the review organ can offer persons whose non-derogable rights are derogated by the state organ a new important means of relief. Certainly, the review organ is temporary and it will be supplanted by the judicial review organ when a scientific constitutional review system with Chinese Characteristic is established in China.
VI.Conclusion
People often say that ‘Prosperity makes friends, adversity tries them’. That is to say that a true friendship can be tested only by undergoing hard time. Likewise, can’t we say that only in states of emergency a state can virtually protect human rights or not? Maybe, this analogy is not accurate, but that protecting non-derogable rights in states of emergency which is essentially important for protection of human rights is an indisputable fact. The system of protecting non-derogable rights and the system of states of emergency are two inseparable and interrelated systems, both of which are the basis of protection of human rights in situations of emergency. On the one hand, a scientific complete system of states of emergency is indispensable for the state to deal with crisis, save the country, and protect human rights. On the other hand, as an essential part of the system of states of emergency, the system of protecting non-derogable rights is a core system of protecting human rights in states of emergency. This important system tells us that, even if the government has a compelling objective, if that objective could be achieved by means less damaging on human rights, these less drastic means should be used, and that the state which infringes human rights arbitrary by exercising emergency powers cannot wrap itself in the protective cloak of the system of states of emergency. Therefore, the non-derogable rights must be protected by our constitution and laws and legal system of protecting non-derogable rights should be established as soon as possible.
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[1] Cf. ‘completing legislation of states of emergency, protecting constitutional and legal civil rights’, written by Mo Jihong, ‘Chinese Justice’, March, 2004.
[2] Besides ‘article of states of emergency of the constitution’, the provisions related to states of emergency are included in such major laws and administrative regulations as Martial Law of the People’s Republic of China, Law of the People’s Republic of China on Protecting Against and Mitigating Earthquake Disasters, Flood Control Law of the People’s Republic of China, Law of the People’s Republic of China on the Prevention and Treatment of Infectious Diseases, Regulation on the Urgent handling of Public Health Emergency, Flood Control Regulation of the People’s Republic of China, etc. See ‘completing legislation of states of emergency, protecting constitutional and legal civil rights’, written by Mo Jihong, ‘Chinese Justice’, March, 2004.
[3] Cf. Jaime Oraa, ‘Human Rights in States of Emergency in International Law’, Clarendon Press. Oxford,1992,p.1.
[4] See. Human Rights Committee, General Comment no. 29, States of Emergency (Article 4).
[5] Cf. Carl Schmitt, Political Theology, trans. George Schwab, MIT Press, 1985.
[6] Cf. ‘The Social Contract’, written by （France）J·J·Rousseau, translated by He ZhaoWu, Published by Business Printing House, in 1997, p. 164.
[7] Cf. ’The rational limit of protecting and restricting human rights’, written by Han DaYuan, Constitution and Democratic Politics, Published by Procuratorate Publish House of China, in 1994, p.242.
[8] In order to satisfy the requirement of development of internal situations, the Constitution of 1982 was amended respectively in 1988, 1993, 1999 and 2004.
[9] Especially such procedural rights indicated by Human Rights Committee in No. 29 General Comment as the right of all detained people to be treated in a way which respects their dignity, the right to fair trial, such as the presumption of innocence, especially if the death penalty is available.
[10] Cf. ’Implementation of Tow Human Rights Treaties and China’, written by Mo JiHong, Published by Society Publishing House of China ,in 2005, p.102.
[11] ‘The Derogation of Human Rights: Reasons, Purposes and Limits’, written by He Zhipeng, from Internet, the address of website is unavailable now.
[12] In addition, the Human Rights Committee, in its very significant General Comment 29 on Article 4 of the ICCPR indicated that a number of other rights should be upheld during a state of emergency. These rights are, prohibition on taking hostages, prohibition on forced displacement of persons, the rights of minorities, the right of all detained people to be treated in a way which respects their dignity, fundamental aspects of the right to fair trial ( such as the presumption of innocence, especially if the death penalty is available) arbitrary deprivation of liberty. We also should intensify researching on these rights.
[13] Cf. ‘Research Reports on Constitutional Development of China (from 1982 to 2002)’, written by Hu JinGuang, Han DaYuan, Published by the Law Publishing House, in 2004, p.214.
[14] Cf. ‘Constitution of the Civil Law of the People’s Republic of China’.
[15] Cf. ‘Constitution of the Civil Law of the People’s Republic of China’.
[16] Cf. ‘Constitution of the Civil Law of the People’s Republic of China’.
[17] Cf. ‘Judicial Reviews and Its Basis of Democracy in China’, written by Mo JiHong, ‘Theory and Practice of Constitutional Review’, edited by Mo JiHong, Published by the Law Publishing House, in 2006.
[18] According to article 67 of the existing constitution, the Standing Committee of the National People’s Congress has the power to interpret the constitution and the laws.
主办：中国社会科学院法学研究所、国际法研究所
地址：北京市东城区沙滩北街15号
