The justifiability of particular reasoning in constructive dialogue between China and international human rights treaty bodies

The relationship between China and international human rights law (IHRL) is an often-discussed issue that nonetheless remains peripheral from an academic perspective. The reason that it is often discussed has to do with China’s rapid rise to its global superpower status—economically, politically, militarily, and (in a way) culturally. It remains ‘peripheral’, however, insofar as the common approach situates China as an outlier in the international legal order that must be treated differently. It is this commonly held point of view that first prompted this study. This research focuses investigates particular reasoning–based arguments offered by China in constructive dialogue on specific topics (i.e. interpretation, reservation, sovereignty, and treaty implementation). The purpose of conducting this investigation is first and foremost to examine the justifiability of China’s arguments—that is, to identify those arguments that are in fact justifiable from the point of view of the human rights treaties to which China is a party, along with other human rights instruments it adheres to, versus those arguments that indeed deviate from IHRL. Therefore, it aims to give China’s arguments a fair examination. Moreover, by investigating the arguments in constructive dialogue between China and human rights treaty bodies over time, this research also expounds the relationship between China and the international human rights legal order. In Part I of this study, I consider the question of what counts as a good argument in constructive dialogue. I begin by identifying the characteristics of constructive dialogue by comparing it with legal arguments in the courtroom, which helps me to develop criteria for determining what counts as a justifiable argument in constructive dialogue--a justifiable argument has to be legally justifiable and dialogically constructive. I then investigate the interpretation rules for international treaties in general and IHRL in particular. Finally, I articulate the concept of particular reasoning and its implications for legal argumentation in constructive dialogue. In Part II, I investigate arguments that employ particular reasoning under the four topics identified above. A representation and reconstruction of the arguments is then carried out, in chronological order. The main materials for my analysis are summary records. This research could be situated in three broader debates, namely the relationship between China and international human rights legal regime, the universality versus relativity of human rights, and the (in)determinacy and objectivity of the IHRL. One key observation of this study is: the committees have a greater impact on China than China has on the committees. Specifically, when it comes to topics on which China does not hold a strongly oppositional position, the legally justifiable and dialogically constructive arguments from the committees are very likely to make a positive impact on the process, whereas un-justifiable or non-constructive arguments do not have this effect, or even affect the process negatively. Moreover, this research reveals that the relationship between China and IHRL is rather complicated and may sometimes seem like it has reached an impasse. Nevertheless, it also shows that there is a systemic dialogue between China and the treaty bodies, which has generally improved over time (especially on China’s part). The fact that China has made an effort to offer justifiable or constructive arguments implies that it is adapting to the ‘rightness’ of the rules and principles of IHRL. This adaption to the ‘rightness’ of the regime is, in my view, a process of institutionalisation. In other words, despite its relatively poor compliance record (as some scholars, NGOs, or states hold), China does consider itself subject to the international human rights treaty regime. At last, I suggest that when it comes to IHRL, it is probably the time to go back to basics by taking the legal characteristics of IHRL and argumentation seriously, because forgetting them is as (if not more) dangerous than lack of imagination.