Universal Periodic Review and China

by David Matas

27 January 2024

The human rights record of China came under scrutiny at the United Nations Human Rights Council in Geneva on the morning of January 23, 2024. The occasion was the Universal Periodic Review, a review that the Council engages periodically of every United Nations state member.

For each country’s Universal Periodic Review session, three and one half hours or 210 minutes is allocated. 70 minutes of those 210 minutes is allocated to the state subject to review. The sessions are interactive dialogues.

Each state subject to review gets to speak during its review at the beginning, the middle and the end. The first time is an introduction. The middle time or times are to respond to questions or recommendations. The end time is meant for concluding remarks.

Member states of the Council can speak for a maximum of three minutes; observer states can speak for a maximum of two minutes. If the number of state representatives who want to speak is too large for the time allocated for the Review, the time for the Review is divided among the country representatives who wish to speak.

Before each review, countries can pose advance written questions. NGOs can make written submissions. The Office of the United Nations High Commissioner for Human Rights summarizes these submissions in a publicly posted report. Immediately prior to the review, governments and NGOs with ECOSOC status can host, in nearby rooms, parallel sessions related to the country under review.

UPR 2018

In the previous Universal Periodic Review for China in 2018, the focus on organ transplant abuse in China and on persecution of Falun Gong was minimal. There was one joint submission on organ transplant abuse in China by three NGOs – the China Organ Harvest Research Center (COHRC), the Human Rights Law Foundation (HRLF) and the International Coalition to End Transplant Abuse in China (ETAC). The Office of the United Nations High Commissioner for Human Rights referred to this joint submission as JS21.

As well, a Japanese NGO, The Committee to Monitor Violations of the Universal Human Rights, addressed the abuse in their submission. The Office of the United Nations High Commissioner for Human Rights referred to this submission as UHRMV.

The summary by the Office of the United Nations High Commissioner for Human Rights of these submissions was this:

“JS21 noted that China’s legal framework contained numerous loopholes that allow unethical organ sourcing, which includes harvest from prisoners. Agencies providing regulatory oversight for the donation system remain empty shells.”

The footnote for this summary cited both the JS21 submission and the UNRMV submission.(1)

The summary by the Office of the United Nations High Commissioner for Human Rights contained no mention of Falun Gong. The summary statement about organ sourcing, as one can see, contained no mention of sourcing from prisoners of conscience.

For the 2018 Universal Periodic Review for China, the only country which addressed organ transplant abuse in China by way of questions posed in advance, was Germany. Germany asked these advance questions:

“How does China react to allegations of organ-harvesting in prisons and detention facilities? Can China provide data on annual numbers of organ transplantations and legal sources of organ donations in order to dispel these allegations?”

The only country that mentioned Falun Gong by way of questions posed in advance was the United States. The US asked:

“Since the Chinese constitution guarantees religious liberty, what steps is China taking to stop the continued repression of religious freedom, such as increasingly strict regulations being passed or proposed on religious activity China has passed or proposed, the detention and mistreatment of Falun Gong practitioners, and the church closure and demolition campaigns seen in multiple provinces throughout the country?”

During the Universal Periodic Review session for China in 2018, the only country which mentioned organ transplant abuse in the interactive dialogue was Austria. Austria said:

“Regarding the removal of organs, we would like to know how the Chinese authorities ensure that this is only performed with the free, informed and specific consent of the donor without exception. Austria would be grateful to receive information on the implementation of a zero tolerance policy on harvesting organs in prisons and detention facilities.”

The only country in the interactive dialogue which mentioned Falun Gong was Canada. Canada asked China to “end prosecution and persecution on the basis of religion or belief, including for Muslims, Christians, Tibetan Buddhists and Falun Gong”.

Subsequent developments

Since the 2018 Universal Periodic Review session for China, there have been several developments on the issue of organ transplant abuse in China. This report sets out ten developments.

One development was the China Tribunal. That Tribunal, a people’s tribunal, concluded in a March 2020 judgment, after public hearings and a wealth of evidence, that the mass killing of Falun Gong for their organ had occurred and was occurring beyond a reasonable doubt. The Tribunal determined the slaughter to be a crime against humanity.(2)

Twelve UN human rights experts wrote to the Government of China on June 10, 2021 expressing

“utmost concern at the alleged regular and forced medical examination targeting ethnic, religious or linguistic minorities such as Falun Gong practitioners, Uyghurs, Tibetans, Muslims and Christians in detention, without their consent; and the alleged enforced disappearance of some detainees, which appears to be related to the allegedly illegal acquisition of prisoners’ organs for the purpose of organ trafficking.”(3)

This communication was followed by a press release four days letter expressing alarm at the organ harvesting allegations in China.(4)

The Government of China responded in August 2021 to this joint statement.(5) An analysis of the response is set out in an NGO letter sent to the Government of China in April 2022.(6)

The evidence of organ transplant abuse in China coupled with the implausible official Chinese Government denial prompted a lengthy resolution from the European Union Parliament in May 2022. The resolution, in part, “Calls for the EU and its Member States to raise the issue of organ harvesting in China at every Human Rights Dialogue”.(7)

Statistics the Government of China provides are troubling. For 2022, the official transplant volume in China is 20,333.(8) An unofficial tally of individual Chinese hospital totals of transplant volumes produces a figure five times that volume.(9) A study dated January 26, 2019 showed that Chinese official transplant numbers to that date had been generated by use of a mathematical equation and were not a reflection of reality.(10)

The NGO Doctors against Forced Organ Harvesting produced a 78 page report in December 10, 2022 updated in April 25, 2023 title “Forced Organ Harvesting From Living People in China. Its conclusions state, in part,

“The CCP [Chinese Communist Party], in control of the Chinese government, has weaponized the discipline of transplant medicine by using medical doctors to carry out the killing of dehumanized adherents of Falun Gong. The execution of banned dissidents has shifted from public squares to secret operating rooms.”(11)

There is spreading awareness of the need to address transplant tourism through legislation. The Council of Europe Convention against Trafficking in Human Organs obligates states parties to prohibit complicity by nationals or permanent residents in transplant abuse abroad. The Convention was open for signature March 25th, 2015.

At the time of previous Universal Periodic Review for China, on November 6, 2018, there were only six states which had ratified the Convention. Now there are fifteen. The most recent was France, ratifying on May 1st, 2023.

Before the 2018 Universal Periodic Review for China, there were only three jurisdictions which have not since ratified the Convention and which addressed extraterritorial complicity in organ transplant abuse – Israel, Taiwan and Italy. Now there are three more, South Korea, the United Kingdom and Canada.

The Executive Meeting of the State Council of the Government of China on October 20, 2023 adopted a Regulation on Donation and Transplantation of Human Organs. The Regulation was issued on December 4, 2023 to come into force on May 1, 2024.(12)

The regulation is one of the many exercises of the Chinese government and Communist Party in telling outsiders some of what they want to hear while continuing with their old behaviour. In the regulation, there is reference to openness in allocation of cadaveric organs,(13) but not to openness in sourcing.

The Regulation addresses procedures for obtaining cadaveric and living organs. However, there is nothing requiring openness about the functional operation of the procedures or the results.

There is no prohibition in the 2023 Regulation against sourcing organs from prisoners. The Regulation contains no reference at all to prisons or detention centre.

There is a 1984 law which explicitly allows for the sourcing of organs from prisoners without their consent or the consent of their families, provided their bodies are unclaimed.(14) That law remains unrepealed.

The concepts of transparency, traceability and openness to scrutiny are not mentioned in the new Regulation. Yet these are all essential components of the World Health Organization Guiding Principles on Human Cell, Tissue and Organ Transplantation.(15)

On 18 January 2024, the European Union Parliament passed a resolution which “Calls for the EU and its Member States to publicly condemn organ transplant abuses in China”.(16) This resolution was adopted after the 2023 announcement by the Government of China of its intended March 2024 reforms of its transplantation system.

Most recently, on January 20th, 2024, 107 independent experts released a call for action to the United Nations Human Rights Council during its review of the human rights record under the Universal Periodic Review procedure. Within the call was a request to the Council for a decisive stance against forced organ harvesting of living prisoners of conscience in China.(17)

2024 UPR

a) State questions in advance

For the 2024 Universal Periodic Review for China, in the questions posed in advance by states, again only the United States mentioned Falun Gong, but in a more limited way than in 2018. The question was this:

“What is the location and status of the following non-exhaustive list of individuals? We have raised these cases, including in the State Department’s 2022 Human Rights Report and in public statements: … Falun Gong practitioner Bian Lichao; ….”

Bian Lichao was one of twenty-four names listed in the United States question. He had been arrested in February 2012 for distributing banned materials, in this case classical Chinese dance performance videos and posters. He was convicted and sentenced to twelve years in prison for the offence and brutally mistreated while in detention. According to the Falun Dafa information centre, he was released in June 2023.(18)

b) NGO submissions

The Office of the United Nations High Commissioner for Human Rights in its publicly posted report summarizing NGO submissions for the 2024 Universal Periodic Review for China made no mention of organ transplant abuse. Falun Gong was mentioned twice.(19)

One mention was this:

“JS8 [Joint Submission 8] stated that there had been continued reports of … the arbitrary detention and disappearance of countless Falun Gong practitioners ….”

The Office of the United Nations High Commissioner for Human Right report did not state what caused their disappearance.

The other mention was this:

“AI [Amnesty International highlighted that … Religious leaders and practitioners, including those belonging to … Falun Gong members, were among those subjected to arbitrary arrest and detention during the review period.”

c) Delegation meetings

I went to Geneva a week in advance of the Universal Periodic Review session for China to meet with the human rights members of the Permanent Missions to the United Nations in Geneva. In all, I sent requests for meetings to thirty Permanent Missions – Albania, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Ireland, Israel, Italy, Latvia, Lithuania, Moldova, the Netherlands, New Zealand, Norway, Poland, Romania, Spain, Sweden, Switzerland, the United Kingdom and the United States.

The requests for meetings indicated I wanted to discuss their raising at the Universal Periodic Review the mass killing of prisoners of conscience, primarily Falun Gong and also in large numbers Uyghurs, for their organs. I indicated in the letters that I was representing four different NGOs the International Coalition to End Transplant Abuse in China,(20) Doctors against Forced Organ Harvesting,(21) the Human Rights Action Group(22) and the Falun Dafa Association of Canada.

I received replies from eight of the thirty I contacted – Austria, Canada, Finland, Germany, Netherlands, Norway, the United Kingdom and the United States. The Austrian mission wrote me that they had already decided on their contribution to the Universal Periodic Review and, accordingly, the meeting would serve no purpose. Finland, Germany and the Netherlands all indicated that they were tied up with other meetings. Germany indicated that I should feel free to share information additional to that sent in the letter requesting the meeting.

Both Germany and The Netherlands indicated that they had passed on the information received to their colleagues in the capital. The Netherlands added that they had passed on the information also to their embassy in Beijing. I met with Canada, Norway, the United States and, briefly, with the United Kingdom, after the Universal Periodic Review for China had ended.

d) A parallel event

On January 22nd, the day before the Universal Periodic Review session for China, an NGO with ECOSOC status hosted a parallel session on forced organ harvesting of Falun Gong practitioners. The NGO host was CAP Freedom of Conscience, or Coordination des Associations et des Particuliers pour la Liberté de Conscience, headquartered in Paris, France. A poster for the event is attached to this report. I was one of the speakers.

Lord Hunt and Dr. Beyda, identified in the poster as speakers, did not in fact speak. Torsten Trey, executive director of the NGO Doctors against Forced Organ Harvesting (DAFOH), though not identified on the poster as a speaker, in fact, did make a presentation. The event can now be viewed on the internet.(23)

e) Country oral statements

Because of the large number of country representatives who wanted to make a statement in 2024 on China, 163 requests, the time allocated to each country to speak was 45 seconds. Many of the countries that spoke at the Review in 2024, as in past Reviews, had nothing but good things to say about the human rights record of China.

Reuters reported that China lobbied non-Western countries to speak at the 2024 Universal Periodic Review and, in those speeches, praise its human rights record.(24) A Chinese diplomatic note sent to other countries read:

“I would kindly request your delegation to render valuable support to China and make constructive recommendations in the interactive dialogue … taking into account the friendly relations and cooperation between our two countries.”

The diplomatic notes sent by China included specific speaking points to raise. Diplomats remarked that the scale of Chinese lobbying was exceptional.

The Chinese lobbying was successful. China gamed the system, generating a filibuster, enlisting governments over which it has influence to chew up the time allocated to the Review and limit the time available for those countries who want to address the human rights record of China honestly.

The result was that, in the Universal Periodic Review session, most of the interventions were uncritical of China and followed a standard format.(25) One state representative after another welcomed the Chinese delegation and their report to the Council on their human rights record. These delegations commended or hailed or supported or saluted or applauded or congratulated or expressed appreciation for or recognized the remarkable achievements or acknowledged the impressive progress or significant gains of China in its human rights record. The delegations then recommended that China continue doing what it had been doing. The delegations concluded by wishing China success in the Universal Periodic Review.

Even in this litany of obsequiousness, there were a few statements which stood out. Venezuela encouraged China to continue its repression in Tibet and Xinjiang (East Turkestan), stating, euphemistically that China “Continue to maintain overall social stability in Xizang (Tibet)” and “Continue to coordinate the work of maintaining stability … in Xinjiang (East Turkestan).”

Both Venezuela and Hungary attacked the use of Universal Periodic Review for human rights criticism of China. Venezuela recommended that China “Continue to firmly oppose the politicization and instrumentalization of human rights, and interference in China’s internal affairs under the pretext of issues related to Xinjiang (East Turkestan), Hong Kong and Xizang (Tibet).” Hungary urged that the Universal Periodic Review not be used as a platform for instrumentalization of human rights issues.

Tanzania at least was honest about what was happening. In the midst of the usual litany of commendations and congratulations, Tanzania commended China “for providing development assistance to developing countries”.

What was notable was not only what was said, but also what was not said. The mass killing of prisoners of conscience for their organs was not mentioned by even one state. Canada was the only state which mentioned the persecution of Falun Gong, calling on China to “End all forms of enforced disappearance targeting … Falun Gong practitioners.”

The concept of disappearances was picked up in several statements. The Ivory Coast recommended that China “ratify the International Convention for the Protection of All Persons against Enforced Disappearances”. Samoa and Japan had the same recommendation. Lesotho recommended that China consider ratifying that Convention. Argentina recommended that China “ratify all human rights treaties to which China is not yet a party, in particular ratify the International Convention for the Protection of All Persons from Enforced Disappearances”. Australia recommended that China “end enforced disappearances”. Germany recommended that China “abolish all forms of enforced disappearance”.

There is a simple, obvious explanation for the enforced disappearances in China – the mass killing of prisoners of conscience for their organs, primarily Falun Gong, also Uyghurs in large numbers and, in smaller numbers, Tibetans and House Christians. The fact that so many states were prepared to address the phenomenon of disappearances but none were willing to address who was disappearing and why speaks volumes about the deficiencies of the Universal Periodic Review procedure.

The Report of the Working Group on the Universal Periodic Review session on China tabulated the state recommendations.(26) The report set out 139 recommendations that China continue what it was doing, 48 that it strengthen existing activity, 38 that it improve existing activity and 4 that it maintain existing activity. In contrast, there were only 17 recommendation that China end what it was doing, only 12 that it cease what it was doing, only 7 that it stop what it was doing, only 4 that it release those unjustly detained, and only three that it repeal various measures.

f) Observations

The silence on forced organ harvesting at this Universal Periodic Review session was notable in light of the increased confirmation of that violation and concern about it, set out above, in the period since the previous Universal Periodic Review for China. Rather than this increased confirmation and concern leading to an increased concern about the abuse at the Universal Periodic Review for China, the Review went in the opposite direction, saying less.

The Universal Periodic Review for China of 2024, compared to the Review for China in 2018, was retrogressive. As noted above, in 2018 Germany asked a couple of advance questions about organ transplant abuse. Austria raised a concern about organ transplant abuse in its oral statement. This time round no country raised the issue of organ transplant abuse, either by way of questions posed in advance or by way of oral statements. This was so even there were substantial developments on the issue, more confirmation, more support, more evidence, more verification, and more widespread expert, governmental and parliamentary/ congressional concern.

The reason for this downward shift is partly the increased ability of China to game the Universal Periodic Review system through mobilizing client states to chew up the available time. Mostly the shift can be explained by the worsening human rights situation in China coupled with the increasing spread of Chinese transnational repression.

The Netherlands, in their statement to the Universal Periodic Review, expressed concern about “the severe decline of human rights in China”. Canada, in their statement, noted “with concern the increasing extraterritorial repression of human rights defenders”.

The China of 2024 is a more repressive country than the China of 2018 both at home and abroad. Xi Jinping has led the country into a downward repression spiral. This spiral impacts not only on victims in China. Critics abroad with ties to China are intimidated. The Chinese government leverages business and political connections abroad to silence criticism. The 2024 UPR reflected this downward spiral.

The United Nations holds up a mirror to the face of the world. Looking in that mirror at the Universal Periodic Review, the world looks ugly, alarming, monstrous. Concern for respect for human rights in China was left to a minority of states. The overwhelming majority either did not care, did not want to know or actively endorsed Chinese human rights violations.

Next steps

Although it will be several years before the turn of China again comes up at Universal Periodic Review, the travesty of the Review this year highlights the need to reform the Review procedure. One simple reform would be joint government statements.

It is commonplace for NGOs to make joint submissions for the Universal Periodic Review. For the 2024 Universal Periodic Review for China, there were forty joint NGO submissions summarized in the UN Summary of Stakeholders Submissions.

Joint government oral statements are a way of circumventing the gaming of the system we saw with the Chinese Universal Periodic Review. With joint government oral statements, those countries who are serious about respect for human rights could, with each joint statement, take up a different human rights issue. Repetition could be avoided and the time available for serious human rights presentations could be best used.

Joint government statements are a commonplace of the United Nations Human Rights Council regular and special sessions. In principle, there should be no obstacle to introducing them into the Universal Periodic Review.

Something more immediate, when it comes to China, would be directing attention to the regular sessions of the United Nations Human Rights Council. There are three such sessions a year, in late February and March, June and early July and September and early October. Every session has an agenda item titled “General Debate on Human Rights Situations that Require the Council’s Attention”.

Organ transplant abuse can be raised by any member state of the United Nations during any regular Council session during discussion on that agenda item. That agenda item is a more propitious opportunity than the Universal Periodic Review to raise concerns about human rights abuses in China, including the mass killing of prisoners of conscience for their organs, because of the frequency of the opportunity.

There is also the power the United Nations Human Rights Council has to hold a special debate or convene a special session on a particular subject. At the UN Human Rights Council session of September and early October 2022, a resolution to hold at the next regular session of the Council a debate on the situation of human rights in the Xinjiang Uyghur Autonomous Region was co-sponsored by twenty-six states and defeated by a vote of 17 to 19 with eleven abstentions.

The reason that the vote in favour was less than the number of co-sponsoring states is that a state not member of the Council can co-sponsor a resolution, but not vote on a resolution. Of the twenty-six co-sponsors, only nine were Council members.

Although the resolution was defeated, it carried a message and had an impact. The majority of the Council did not vote against the resolution. The resolution failed only because of the number of abstentions. This technique, presenting at a regular session of the Council a resolution for a debate or a special session on forced organ harvesting in China, would be useful to raise awareness and concern about the abuse even if the resolution, for geo-political reasons, fails.

Another vehicle for information, investigation, advocacy and remedy within the UN Human Rights Council system is the appointment of either a country specific or thematic mechanism. Right now there are forty-five thematic mechanisms and thirteen country mechanisms which have been established by the Council.

The Council, for instance, in October 2022, created a special rapporteur on the situation of human rights in the Russian Federation. There is no reason why the Council could not also mandate a special rapporteur on the situation of human rights in China or a thematic mechanism, a special rapporteur, on organ transplant abuse.(27)

The response of the Government of China in August 2021 was unresponsive to the requests and concerns of the UN human rights experts of June 2021.(28) The experts should say so. They should follow up with a recommendation for an independent UN based investigation into organ transplant in China. That investigation should occur ideally with Government of China cooperation. In its absence, an investigation should be conducted nonetheless.

In August 2013, the Special Rapporteur on trafficking in persons, especially women and children, at the time Joy Ngozi Ezeilo, produced a thematic analysis of the issue of trafficking in persons for the removal of organs.(29)

The Rapporteur in 2013 wrote:

“31. A very different picture of organ ‘trade’ involves the harvesting by the State of organs of persons who have been or are being executed. Allegations of such practices have been levelled at a number of countries, including in East Asia, from where consistent and credible evidence has emerged.”

The footnote associated with that statement was this:

“See David Matas and Torsten Trey, eds., State Organs: Transplant Abuse in China (Woodstock, Ontario, Seraphim Editions, 2012). See also Mingxu Wang and Xueliang Wang, ‘Organ donation by capital prisoners in China: reflections in Confucian ethics’, Journal of Medicine and Philosophy, vol. 35, No. 2 (2010), pp. 197-212; and G. M. Danovitch, M. E. Shapiro and J. Lavee, ‘The use of executed prisoners as a source of organ transplants in China must stop’, American Journal of Transplantation, vol. 11, No. 3 (2011), pp. 426-428.”

The current Rapporteur is Siobhἀn Mullally, the Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights at the School of Law, National University of Ireland, Galway.(30) Ms. Mullally was one of the twelve UN human rights experts who made the 2021 joint statement, mentioned earlier in this text, expressing concerns and alarm about reports of forced organ harvesting in China. She could be asked to address the scourge of forced organ harvesting in China in detail in one of her annual reports to the United Nations Human Rights Council.

Conclusion

The Universal Periodic Review is not the be all and end all for human rights accountability. There are other recourses within the UN human rights system which are more frequent, more accessible and more easily mobilized. The failure of the Universal Periodic Review for China to hold China to account for its human rights abuses, in particular the failure to address the mass killing of prisoners of conscience for their organs, should lead those concerned about Chinese abuses generally and this abuse in particular to invoke the other recourses available.

References