Give Full Play to Consultation, an Important Role in Global Human Rights Governance--Commemorating the 30th Anniversary of the Vienna Declaration and Programme of Action

In June 1993, the Second World Conference on Human Rights was held in Vienna, attended by representatives of more than 180 countries, including China. The final document adopted by the Conference, the Vienna Declaration and Programme of Action (hereinafter referred to as "the Declaration"), was a comprehensive document which, to a certain extent, reflected the will of the vast majority of developing countries, which account for the vast majority of the world's population, and laid the foundation for international cooperation among all countries in the subsequent period to achieve the goal of protecting human rights and fundamental freedoms as set out in the UN Charter. Over the past 30 years, many good ideas and proposals have been realized or put into practice.

The final formation of the Declaration depended on the cooperation and compromise between Eastern and Western countries, and the consensus reached by negotiation. In discussing international cooperation and implementation mechanisms for the protection of human rights, the Declaration also emphasizes the need to strengthen consultation and cooperation at the global and national levels, and to eliminate confrontation in international human rights activities. In recent years, the international situation has undergone tremendous and profound changes, and many new issues and major challenges have been faced in the field of international human rights activities. In order to promote the healthy development of the cause of human rights in the world, we still need to implement the basic spirit of the Programme and give full play to the important role of consultation in global human rights governance.

I. Consultation and human rights are both products of the progress of human civilization

Consultation means that different subjects, through free, equal and open communication and debate, find ways in which reason can convince people, potentially promote changes in preferences, and reach some degree of agreement or consensus. Philosophically, negotiation is primarily concerned with methodology, while human rights are primarily concerned with ontology. Although they belong to different spheres of philosophy, a careful analysis of the history of the development of the concept of human rights will show that the two are interdependent and mutually reinforcing.

From identity to contract

In the course of human historical development, the concept of human rights was formed as a result of the independence of the individual from the social whole. As a social being, man has both natural and social attributes; he has both a need for conformity and a need for independence. This creates a paradox in the relationship between the individual and society. The social contract theory is one of the theoretical models that attempts to resolve this paradox.

According to the English jurist Main, the movement of all progressive societies is a movement “from identity to contract”1. “Identity” is a form of membership, indicating the rights and obligations of individuals in a community, while “contract” embodies the idea of equality and is the product of negotiation between individuals. Traditionally, of course, Western society was a “hierarchical society” or “hierarchical state” in which individuals belonged to a particular class and their rights and obligations were determined by their hierarchical status. Therefore, the rights and obligations set out in the contract were reciprocal but not equal, and this is the fundamental difference between the idea of contract and human rights in modern societies. Nevertheless, developed contractual relations have fostered the growth of the individual, constantly changing his or her weak and helpless position in the community. Under the influence of a long contractual tradition, the determination of people's rights and obligations by mutual agreement has become a habit of Westerners in dealing with social relations.

From subjectivity to intersubjectivity

As we know, human rights have established three boundaries in political philosophy: first, the boundary between people, second, the boundary between people and the state, and third, with the increasing trend of international lisation of human rights, human rights have also established the boundary between one state and other states and international organizations. In terms of the relationship between human rights and the state alone, in the context of Western culture, where human subjectivity and rationality are exalted, the essence of the rule of law lies in the control of public power and the protection of human rights, and human rights and public power have an antagonistic character.

In contemporary times, this rationality and confrontation has been widely questioned and criticized. Some scholars have argued that this kind of rationality, which is centred on the “subject” (individual), is bound to cause divisions and conflicts in worldviews and values, and has serious negative effects on social integration and governance, so it is necessary to change the concept of rationality. For example, the German philosopher Habermas proposed an alternative to practical rationality by using the theory of communicative action. This view of rationality moves from the level of the “subject” to the level of the “intersubject”, from “subject-centred rationality” to “interactional rationality”. It seeks to avoid a state of confrontation between subject and object.

Habermas values the importance of procedural justice in the process of interaction, arguing that in a proceduralist legal paradigm, it is the procedural conditions of the democratic process that are worth protecting in the first place. People participate in political negotiations, demanding the satisfaction of harmed interests and, in the process of expressing these interests, negotiating criteria for the equal treatment of equals and the unequal treatment of unequals. According to his vision, the idea of consultative democracy as a politics of negotiation can facilitate normative and effective interaction between citizens and between peoples. Here, the state and the individual are no longer in opposition to each other, but in a negotiated governance; the power of the state and the rights of citizens are no longer in opposition to each other, but in an interactive balance.

From a pluralist society to an “overlapping consensus”

In the context of a pluralist culture and increased social complexity, how can social unity and stability be established and maintained? The American philosopher Rawls put forward the idea of “overlapping consensus”. He said, “This idea complements the political idea of justice, which is the idea of an overlapping consensus of rational doctrines of completeness.” Although there may be considerable differences in people's understanding of justice, different premises may produce the same conclusion. In this case there is what we call an overlap rather than a strict agreement. The world is made up of multiple cultures and different countries have different values. This diversity should be acknowledged and different cultures and values should be tolerated in a spirit of reason and tolerance, seeking the greatest possible consensus. Human rights are claims in the name of the human person, a common human ideal and the core of the political and moral “overlapping consensus” of the international community.

Charles Taylor proposed a non-coercive consensus on human rights, whereby “different groups, nations, religious communities and civilizations, despite holding incompatible fundamental views on issues of theology, metaphysics and human nature, can agree on particular norms that should govern people's behavior. Each side will present its own justification for this consensus in its own way and from its own deep background conceptions.” As can be seen, Western scholars are also well aware that insistence on confrontation will only result in the fragmentation of society and the failure of governance, to the detriment of the true realization of human rights.

From consultative democracy to consultative governance

In the institutional context of socialism with Chinese characteristics, the public interests of the state and the fundamental interests of the general public are aligned, and therefore China promotes and safeguards human rights not through confrontation but through cooperation. Promoting consultative democracy and adhering to consultative governance have become important ways of realizing and safeguarding human rights with Chinese characteristics.

Consultative governance refers to a specific political mechanism that uses consultation and dialogue in the process of state and social governance to adapt the relationship between political organizations, between the government and citizens, and between citizens and citizens to form a consensus in order to achieve the goals of state and public governance interests. The basic political system of multi-party cooperation and political consultation was established as early as the founding of New China. In recent years, China has continued to improve the system and working mechanism of consultative democracy and to promote its broad, multi-layered and institutionalized development. Through channels such as state power organs, CPPCC organizations, parties and groups, and social organizations, extensive consultations have been held on major issues of economic and social development and practical issues of immediate interest to the masses, with a view to widely collecting the views of the masses and the wisdom of the people, enhancing consensus and strengthening synergies. This consultative mechanism based on consultative democracy and consultative governance has become an effective way to expand citizens' orderly political participation and to realize their mastery under the leadership of the Communist Party of China; it has also become an important form of respecting and protecting human rights and safeguarding social equity and justice.

II. Basic principles that must be adhered to for consultation in the field of human rights

As mentioned earlier, giving full play to the role of consultation in the protection of human rights can eliminate confrontational differences and enhance effective cooperation; it can fully develop democracy and form the greatest consensus; and it can reduce social costs and promote social harmony. In this process, the following principles must be adhered to:

Equality

Equality is the basis for people's enjoyment of human rights and a prerequisite for full consultation. The Charter of the United Nations begins its preamble by affirming that “in order to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, it reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and of nations large and small”, thus establishing the two fundamental principles of respect for human rights and sovereign equality. Only between equal subjects can there be free, open and effective consultation. In terms of consultative decision-making processes, every citizen has an equal voice in the consultation process and in the mechanisms that influence decision-making, can participate in political dialogue, and has an equal right to express and be heard. To insist on equality in international human rights governance means to follow the purposes and principles of the UN Charter, insist on the equality of all countries regardless of size, strength, weakness, rich or poor, respect sovereignty, care for human rights, share security, actively participate in UN activities in the field of human rights, and jointly safeguard international equity and justice.

Inclusiveness

Inclusion is an important feature of human rights and an important basis for consultation. In the process of public consultation, citizens try their best to reach an opinion acceptable to all through continuous cooperation and discussion and communication in order to prevent irrationality and insist on the amendability of procedures and reversibility of decisions, carefully considering the views of each participant so that the outcome of the decision accommodates everyone's views, especially minority positions. In terms of what is reflected in the consultation, the outcome of the decision must not only take into account the context of cultural pluralism and differences in perceptions and treat the interests of others equally, but also require the presentation of a variety of views and reasons acceptable to others, and attempt to accommodate the hopes, plans and aspirations of citizens and find appropriate solutions. To insist on inclusiveness in international human rights governance means respecting the diversity of world civilizations and development paths, respecting and safeguarding the right of peoples to choose their own social systems, development paths and human rights models, learning from each other, complementing each other's strengths and promoting the progress of human civilization.

Consensus

Consensus is the basis on which human rights are validated and the purpose of consultation. Because the consultation process allows for views, decisions and even procedures to be amendable, it opens up the possibility of shifting preferences. The public consultation process allows each individual to distil reason from his or her own views and to incorporate the views of others, and each individual revises shared beliefs in the light of the new reason being proposed. Rational consultation can lead to a revision of substantive views, and even if consensus is not ultimately reached, it can bring positions closer together, thus making some compromise possible. To insist on consensus in international human rights governance is to advocate a sense of community of human destiny, to take into account the legitimate concerns of other countries while pursuing one's own interests, to promote the common development of all countries while pursuing one's own development, and to enhance the common interests of mankind.

III. Integrating consultation into the whole process of international human rights governance

Global governance, as its name implies, is the joint management of global affairs by all countries in the world. Global human rights governance is a global governance with human rights as its value goal, and it should also adhere to the concept of consultation and integrate consultation into the whole process of domestic human rights protection and global human rights governance.

Promoting consultation and interaction between governments and citizens

From the perspective of development, the growth of civil rights does not mean the shrinking of public power, and the two are not two domains of power that are mutually exclusive. Both the government and the citizens are dynamic and the two are mutually reinforcing. Therefore, government and citizens must be both constrained and incentivized. While effectively restraining the discretionary power of the government, it also encourages the orderly political participation of citizens; while promoting electoral democracy and safeguarding all democratic rights of the people, it also upholds consultative democracy and reaches the broadest consensus. When it comes to public interests and the immediate interests of the people, the government should listen extensively to the views of the people, so that the process of formulating public policies becomes one of extensive participation by the people, a process of coordinating relations, enhancing consensus and forming synergy. In this way, the people will understand and support the government's decisions and actions, and promote the maximization of public interests. Practice has proved that only through rational communication and peaceful dialogue between the government and citizens can social order be maintained and public interests promoted, and the goals of human rights can be truly realized.

Strengthening consultation and dialogue between the state and society

In a market economy and public governance environment, people have changed from “unit people” to “social people”, and many functions previously undertaken by the government have been handed over to society for governance. The protection of human rights requires the government and society to play their respective roles and do their part. On the one hand, the government should give full play to the role of state organs and respect, protect and realize human rights through legislative, administrative and judicial measures. On the other hand, the government should transform its functions and actively nurture and regulate various civil society groups and social organizations. Through these groups, various services are provided to their members, the interests of their members are coordinated, and people's concern for social affairs is cultivated and their interests are expressed to society. This is conducive to public participation in public affairs, and facilitates the government's understanding of public sentiment and opinion, and promotes scientific and democratic decision-making, making it more in line with the public interest. In addition, through the means and mechanisms of consultation and dialogue, the government and social organizations coordinate the relationship between public power and citizens' rights, which is conducive to improving public administration and social autonomy and enhancing the performance of state and social governance. Practice has proved that only by strengthening cooperation and mutual support between the government and society can social justice be maintained and human rights be effectively respected and safeguarded.

Emphasis on international human rights consultation and cooperation

The world today is undergoing great changes and adjustments. Peace and development are still the themes of the times. The multi-polarization of the world is irreversible, economic globalization is deepening, the scientific and technological revolution is accelerating, global and regional cooperation is flourishing, the interdependence of nations is becoming increasingly close, and the human society is becoming an indivisible community of destiny. It is the fundamental interests of all peoples and the common aspiration of all peoples to share development opportunities, address challenges together and advance the noble cause of peace and development for humanity. Therefore, all countries should promote and protect human rights through international cooperation on the basis of the principles of sovereign equality and non-interference in internal affairs. They should actively carry out international human rights exchanges and cooperation, promote the impartial, objective and non-selective treatment of human rights issues by all countries, and strive to promote the healthy development of the international human rights cause; they should earnestly implement the purposes and principles of the UN Charter on the promotion and protection of human rights, actively participate in the activities of the UN Human Rights Council, and attach great importance to technical cooperation on human rights with the Office of the UN High Commissioner for Human Rights. We should continue to improve the international human rights protection mechanism; earnestly fulfil our obligations under the international human rights treaties to which we have acceded and submit compliance reports to the relevant bodies; and actively participate in various forms of human rights dialogue or exchange activities to resolve conflicts and contradictions in the field of human rights in a consultative manner. Practice has proved that only by strengthening international human rights exchanges and cooperation can we promote the healthy development of the world's human rights cause while actively developing our own human rights cause.

(The author is Council Member of the China Society for Human Rights Studies)