States Monitoring States: The United States, Australia, and China's Human Rights, 1990-2001

I. Introduction

In an era of globalization, universal human rights are judged to transcend state borders and fragment state sovereignty. International human rights treaties and multilateral human rights organizations play an increasing role in regulating state activity and exert a socializing impact on recalcitrant states. Recent research suggests that bilateral pressures are low on the scale of effectiveness in comparison to multilateral pressures. ² Despite this, individual states continue to assume an ongoing role in monitoring each other's human rights performance. Far from diminishing, the regulatory burden of the state appears to be expanding, as the monitoring of China's human rights by the international community is diverted, at China's urging, into an increasing number of bilateral channels. Despite US extension of Permanent Normal Training Relations (PNTR) to China in 2000, and despite the newfound scepticism of European Union (EU) states, China is insisting on the efficacy of the bilateral mechanism of its human rights dialogue with the United States (US) and many other Western states, in preference to the potentially humiliating experience of a resolution critical of China in the UN Human Rights Commission.

This dialogue experience, described by China as turning "confrontation" into "cooperation," is an essentially nonintrusive exercise which eschews resort to bargaining, shaming, sanctions, and even to publicity. However, as the Chinese description makes clear, its effects are palpable--they provide, quite simply, an alternative model for monitoring any state's human rights, which is, moreover, determined by the target state. The shape of things to come is suggested by the recent diminution of the monitoring role of the UN Sub-Commission on the Promotion and Protection of Human Rights (or Human Rights Sub-Commission), and the alteration in the monitoring procedures of the UN Human Rights Commission. ³ It is even more strongly suggested by the shock development of 3 May 2001 when the US, the strongest champion of international human rights, failed to retain its seat on the UN Human Rights Commission and was replaced by other European states. ⁴ The question must therefore be rigorously examined: if bilateral monitoring is to become the preferred model for dealing with offending states, how effective has it been in relation to China, whether in its earlier active mode of US monitoring through the Most Favored Nation (MFN) trading status mechanism, or in its present manifestation of bilateral human rights dialogues with many Western states?

Bilateral monitoring of human rights differs from multilateral monitoring in that it begins as a unilateral initiative which, although it may be accepted in part by the target state, is not based on any formal agreement or on any mutually agreed standard. It is ad hoc, undefined and informal and therefore lacks the collective, consensual, historical, and institutionally based moral authority of multilateral mechanisms. It imposes different constraints on the behavior of target states, being more dependent for its impact either on the superior power and economic sanctions wielded by the monitoring power or on the quality of the role model. On the other hand, it is more easily imposed, less vulnerable to collective opposition, and more accessible to nongovernmental (NGO) pressure. ⁵ Since it is not fixed in standard, or institutionalized, it is also open to more creative treatment.

There are two main types of bilateral monitoring: large power monitoring by the US, which is more likely to involve unilateral sanctions, and the "other" monitoring procedures of middle and small Western powers. The differences are articulated primarily in terms of strategic status ⁶ and political culture. ⁷ The US political system is seen by Jan Egeland to have a results-oriented, short-term, and media-dominated perspective which is less conducive to long-term results than the more stable and pragmatic Northern European tradition, in which the diplomatic bureaucratic establishment designs long-term human rights policies. ⁸ Jack Donnelly compares...