China and International Human Rights ― Harsh Punishments in the Context of the International Covenant on Civil and Political Rights

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.

Na JIANG is an associate professor specializing in criminal law, comparative public law and international law at Beijing Normal University (BNU). In addition to teaching English criminal law, international criminal law and comparative law, she serves as the Deputy Secretary-General of the China Branch, International Association of Penal Law (Association Internationale de Droit penal, or AIDP). She joined the BNU’s College for Criminal Law Science in 2008 and has been the Deputy Secretary-General of the AIDP since 2011. Professor Jiang was previously at the University of Durham Law School from 2003 to 2006 for Ph.D. studies in the field of international human rights law, and at the University of Toronto from 2012 to 2013 for a visit and research on comparative studies of wrongful convictions. She received her Ph.D. degree from Durham University in 2007, having completed an LL.M. in criminal law at Renmin University of China in 2003 and an LL.B. at Zhongnan University of Economic and Law in 2000. Professor Jiang has also been a member of the Center for Criminal Law and Criminal Justice at Durham University in the United Kingdom since 2006 and of the International State Crime Research Consortium at Old Dominion University in the United States since 2009.

She has published over 70 articles, research reports and chapters in top legal journals and for university presses in the United States, United Kingdom, France, Hong Kong and China. She has also published 5 edited book and textbooks, 4 translation books in Chinese, as well as many translation articles in Chinese or English. Among them, her notable recent publications are the articles published in the SSCI journals as follows:

"A Comparison of Wrongful Convictions in Death Penalty Cases between China and the United States" in the International Journal of Law, Crime and Justice (2013); "The Presumption of Innocence and Illegally Obtained Evidence: Lessons from Wrongful Convictions in China?" in the Hong Kong Law Review (2013); and "The Adequacy of China’s Response to Wrongful Convictions" in the International Journal of Law, Crime and Justice (2013).