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The Universal Periodic Review (UPR) of the UN Human Rights Council is an important institutional innovation in the development of international human rights governance. For more than a decade, states’ interactions in the three UPR cycles have taken on a complex character. Previous studies have paid much attention to states’ recommendations in the UPR mechanism, from which several hypotheses can be formulated regarding the factors influencing states’ recommendations during a Universal Periodic Review. These hypotheses, which cover multiple factors, can be verified in a quantitative statistical manner based on a large number of human rights indicators and data on trade and political system. Furthermore, a keyword classification method can be applied to explore the influence of regional factors on the states’ recommendations in a Universal Periodic Review. The results of the multiple data analysis indicate that the human rights situation in the state under review is the main factor influencing the recommendations made by member states in the review. In addition, the influence of regional factors (regional organizations and regional groups) on states’ behavior is also highlighted.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)
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Abstract

The early regulations on sexual harassment in China were mainly made as a special protection for women in Chinese law until the promulgation of the Civil Code of the People’s Republic of China completed the degenderization of the concept of sexual harassment. On the practical level, abuse of power is often coupled with sexual harassment. Ensuring the proper use of institutional power is an inherent requirement for system formulation and implementation, and it is also the fundamental reason for the Civil Code to stipulate that organs, enterprises, schools and other units should take the obligation to prevent and control sexual harassment.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)

Abstract

The implementation of the Anti-Domestic Violence Law in 2016 has planted the prevention and control of domestic violence in the soil of rule of law. An empirical study of 3,961 adjudication documents indicates that cases applying the Anti-Domestic Violence Law show a rapid increase in number, a wide and varied geographical distribution, and a variety of causes of action, but a relatively concentrated focus. The judicial application of this law has strongly promoted the prevention and suppression of domestic violence and effectively safeguarded human rights of the victims of domestic violence. However, in the judicial application of the law, there are several problems such as differences in the definitions of the scope of the subject of quasi-domestic violence and domestic violence, confusion in the application of the legal conditions for the issuance of personal safety protection orders, judicial inertia, lack of interpretation and reasoning, difficulties in the proof of the injured party, etc. Therefore, the standards for the application of the law should be clarified to achieve a balance between family autonomy and state intervention, and the scientific application of the law should be guaranteed to prevent and suppress domestic violence further. At the same time, in the era of Civil Code, the application of the Anti-Domestic Violence Law should be well connected with the application of the relevant provisions of the Civil Code in order to comprehensively strengthen the judicial protection of human rights.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)
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Abstract

The emergence and development of international human rights mechanisms are characterized by their own history, reality, theory, and path logic. The construction of human rights discourse during World War II, the formation of a comprehensive peace view and the globalization of human rights after the Cold War jointly constitute the historical logic of the international human rights mechanisms. The universal generalization movement of human rights is the realistic driving force of international human rights mechanisms. The promotion of morality and the defense of sovereignty run through the universal generalization of human rights. The game between universal generalization of the human rights mechanisms and respect for national sovereignty has generated a dual mode of “the coexistence of strong political nature and weak legal nature” of international human rights mechanisms. The theory of natural law and natural rights not only has a great impact on the thought and practice of international law, but also has left a deep imprint on the institutional design of international human rights mechanisms. The development of international human rights mechanisms presents a functionalist path of institutional spillover, but lacks the coordination of authoritative institutions, resulting in a dual track structure, self-sufficient development and functional convergence, as well as causing problems such as mechanism expansion, disorder and fragmentation. Based on this, the reform of the global human rights governance system should consolidate international consensus, adhere to the principle of functional differentiation and effectively balance political logic and legal logic.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)
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Abstract

In recent years, litigants have begun to use human rights as gateway to climate change litigation in some jurisdictions and achieved limited success. Some scholars see this “human rights turn” as new opportunities to advance climate change mitigation through the judicial process, while others criticize it as an abuse of human rights law that could lead to illegitimate sanctions on emitters. Human rights-based climate change litigation should be understood as strategic litigation, whose purpose is not to resolve a specific dispute or gain compensation for damages, but rather to promote broader social and policy change. To achieve this goal, plaintiffs use as wide a range of rights as possible, including the rights to life, property, peace in private life, health, environment and so on, and expand the subject of rights to future generations and foreign citizens, arguing that both the state and carbon majors should be held accountable for the diminished human rights caused by climate change. In theory, the strength of the human rights approach lies in empowering the judiciary to go beyond the paradigm of updating the interpretation of existing norms and create norms. There are hardly any obstacles in terms of legal techniques to the performance of this function, as filling lacune of law through recourse to various principles of human rights law has already become a relatively mature model of judicial reasoning. However, a series of factual obstacles still exist and may hinder the implementation of this theoretically well-established function. The judiciary, after all, cannot enforce its own policy decisions without the cooperation of other public authorities. Furthermore, the power of norm-making by appealing to human rights is highly culture-specific, which means it might not be supported in a culture of adjudication where right is not considered as trump.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)
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Abstract

The actual impact of climate change and the new demand for the theoretical development of environmental law have the concept of “constitutional environmental right” examined again. The original mission of the constitutional environmental right is to declare its legitimacy and give full play to its instrumental value so as to achieve the fundamental goal of “protecting a good ecological environment”. On the one hand, the instrumental value of constitutional environmental right is reflected in giving play to the functions of a substantive right and forming a specific constitutional benchmark with the help of human rights theory. On the other hand, it is reflected in showing the functions of a procedural right and assisting in entering the constitutional review procedure so as to strengthen the constitutional constraints on organs of public power. After analyzing the “Climate Ruling” of the Federal Constitutional Court of Germany, it can be found that under the national target clause of environmental constitution, the constitutional environmental right can only play a limited procedural auxiliary function, whereas the climate litigation can be opened and judged mainly through the review framework on basis of the traditional defense rights. We can explore procedural constitutional environmental right in combination with China’s constitutional review system, or explore other aspects of constitutional environmental right according to the development of environmental protection needs on the premise of in-depth study of the normative approach of national target clauses and clarifying and making good use of current norms and systems.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)
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Abstract

The National Human Rights Action Plan (2021–2025) issued by the State Council Information Office is the fourth national human rights action plan formulated by the Chinese government. Based on the new historical development period, it responds to the people’s new demands for human rights protection in the new era, and puts forward the phased goals and specific tasks for the State to respect, protect and promote human rights, marking a new milestone in the development of China’s human rights cause. This action plan adheres to the “people-centered” human rights philosophy, takes “promoting the free, comprehensive and common development of all people” as the overall goal of human rights development, and proposes six principles of promotion including “smart advancement”. It combines comprehensiveness and focus in terms of content organization, consolidation and enhancement in terms of task requirements, and domestic and international development in terms of strategic layout. In response to new demands for human rights protection in new contexts such as the ecological environment crisis, the digital era and the risk society, a series of corresponding measures have been formulated, and the action plan requires to establish and improve the system and mechanism of gender equality in the workplace, to develop people’s democracy in the whole process, to enhance the awareness of the whole society to respect and protect human rights, and to deeply participate in international human rights affairs, which demonstrates a new pattern of comprehensively promoting high-level development in various aspects of human rights.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)
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Abstract

Comprehensive poverty alleviation is the micro projection and practice concrete image of human rights governance in China, which is composed of four dimensions: human rights concept, human rights guarantee, human rights practice and human rights discourse. The concept of “people-centered” human rights is the theoretical guidance of comprehensive poverty alleviation and human rights governance, which not only corrects the limitations of traditional western human rights concepts, but also highlights the core values of human rights governance in China. Constructing human rights protection around the “right to a happy life” is the theoretical core of the comprehensive governance of human rights against poverty. From a macro perspective, it is related to the logical relationship between the “right to a happy life” and the “right to be free from poverty”, and from a micro perspective, it focuses on the arrangement of specific systems for different human rights sub-items in the process of poverty alleviation. The human rights practice of realizing the “biggest human rights project” is the theoretical mechanism of comprehensive poverty alleviation and human rights governance, which is mainly manifested in putting forward the anti-poverty method of targeted poverty alleviation and building the governance model of poverty alleviation under the rule of law. The human rights discourse of “a community with a shared future for mankind without poverty” is the theoretical expression of the governance of comprehensive poverty alleviation and human rights. On the one hand, it extracts our human rights discourse system in the practice of comprehensive poverty alleviation, while on the other hand, it proposes to build a community with a shared future for mankind without poverty in the international field of human rights discourse.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)
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Abstract

The right to peace and the right to harmony are two important concepts of human rights that have in recent years become the areas of concern in theory and practice both at home and abroad. In fact, the right to peace has found standardized expression in the United Nations Declaration on the Right to Peace, in spite of the controversy it has caused at the drafting stage of the Declaration. As the connotations of the “right to enjoy peace” and “freedom from fear and want” defined in it have not been universally acknowledged by the international community, further illustration and interpretation from jurisprudence are required before the Declaration is implemented through the mechanism of human rights protection. In contrast, the “right to harmony”, a unique concept that has been created by Chinese scholars with a purpose to introduce into the human rights system the idea of “harmony but difference” from the ethics of Chinese cultural tradition, purports to pursue a good social moral order. Theoretically, both concepts can be incorporated into the categories of the right to subsistence, personality and freedom under the traditional theory of human rights, but the “right to harmony” displays more of the characteristics of human rights in the new era. Therefore, to protect the “right to harmony” requires integrating the obligations of the state and government, social organizations and individuals under the traditional human rights protection mechanism, so as to form an organically composed human rights protection system that unifies the abstract and the concrete, the means and the ends, the conditions and results. In addition, as a “mechanism” to grasp the characteristics of the human rights protection system on the macro level and the holistic policy level, building a community with a shared future for mankind is an effective institutional platform and legal principle to ensure that the “right to peace” and the “right to harmony” are integrated into the standardized rights system.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)
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Abstract

The judicial relief for human rights violations by transnational corporations is not only an important part of the United Nation’s business and human rights agenda, but also a major challenge to a proper accountability mechanism of transnational corporations. However, international human rights law implementation is state-centered, and judicial relief for human rights violations by transnational corporations often faces many legal and practical obstacles, including disputes of jurisdiction, corporate veils, insufficient legal resources, and procedural or evidential problems. In order to balance the ideal of international human rights law and national governance realities, and reduce as much as possible the above obstacles, efforts must be made to promote positive interactions between domestic law and international law. On the one hand, international law guides the development of domestic law, the formation of consensus on jurisdiction and corporate human rights responsibility, international judicial assistance and supervision by all sectors of society; on the other hand, the development and implementation of international law depends on the will and actions of sovereign states, so it is necessary to take into account the development level of domestic law. As far as China is concerned, to build a fairer, more reasonable and more effective judicial relief system, factors such as the relationship between state sovereignty and human rights, the relationship between human rights and development, and legal system improvement need to be considered.

In: Chinese Yearbook of Human Rights, Volume 6 (2024)