II. Public interest litigation ensures human rights: a practical analysis

Public interest litigation, in its practice in China and abroad, has proven significant in safeguarding human rights.

1.Abroad

The Brown versus Board of Education of Topeka, Kansas, 1954, was a landmark lawsuit that, with the strong support from the National Association for the Advancement of Colored People (NAACP), overthrew the "separate but equal" doctrine of Plessy for public education with the Supreme Court's ruling and made the Constitutional rights real. More importantly, it ensured equal rights for the colored people with judicial authority. Though the anti-discrimination "affirmative action" was frustrated in the subsequent social movement, with the right-wing party in power, the Warren Court's elaborations on equal rights remain inspiring and encourage people to continue fighting for their rights.

In South Africa's Minister of Health and others versus Treatment Action Campaign and others, 2002, the Treatment Action Campaign, having teamed up with other NGOs such as legal resource center, children's rights center, the Community Law Centre, the Institute for Democracy in South Africa and Cotlands baby sanctuary, protected the rights and interests of AIDS patients and susceptible groups by transporting low-cost AIDS drugs, oppose pharmaceutical association's attempt to stop legislation supporting affordable AIDS drugs and demanding the government to make the drug nevirapine available at all medical facilities to prevent mother-to-child HIV transmission.

One of the most exciting developments, however, is the Constitutional Court, through this suit, realized the justiciability of economic, social and cultural rights, and stressed the state were liable to take rational actions to achieve anticipated effects. "If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test."

NGOs played a vital role in the above-mentioned cases. Because the appeals for rights by the disadvantaged groups of society, such as the black or AIDS patients, are often marginalized by law, it would be hard to ensure equal protection of their right without the publicity work, advocacy, calls and actions from NGOs and their alliances. Besides, the roles of "barefoot lawyers" and "basic level legal workers" were also exerted.

2. Domestic situation

In 2002 two teachers of China's Southeast University, Shi Jianhui and Gu Dasong, sued the Nanjing Urban Planning Bureau for the illegal construction of an observation platform by Nanjing Purple Mountain Observatory. The lawsuit, though filed as an "administrative litigation" and was rejected by the court, had all the elements of a public interest litigation in others' interest and, with the help of the media, brought environment rights and planning of public interest affairs into the spotlight.

In May 2006, Xu Jianguo sued a police station of the Wuhan Railway Public Security Bureau for its illegal checking of citizens' IDs. This is a public interest litigation for private interest and against illegal administrative procedure. The plaintiff, after filing the suit, applied for legal assistance at Wuhan University Center for Protection of the Rights of Disadvantaged Citizens, which he entrusted as his attorney. The case was eventually withdrawn, when the defendant offered to apologize to the plaintiff, pay the litigation costs and all other expenses and compensate the plaintiff for his losses. Yet NGOs have thereby demonstrated their power in providing legal assistance, arousing social attention and advocating social justice.

III. Safeguarding public interests, protecting human rights in action

1.Facing challenges: international and domestic

Article 28 of the Universal Declaration of Human Rights says that everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

China has ratified several international human rights conventions including International Covenant on Economic, Social and Cultural Rights and their definitions of labor rights, equal rights and judicial justice are binding to the Chinese government. Though we are not instantly liable for the full realization of all these rights, we will still undoubtedly face up to diverse pressures in international cooperation in these rights protection.

The international standard in human rights protection therefore demands a distinctive government obligation: on one hand, human rights standards should be transformed into explicit government obligations within the current capacity of the government and through domestic laws, so as to ensure corresponding judicial relief for human rights, e.g. environment information exposure, hearing procedures for administrative decision-making, etc; on the other hand, as a goal not altogether unbinding, the international standard setting of human rights also need public interest litigation in the civil rights movement sense to prompt its realization. For example, to make strategic choices in ensuring environment rights and invite democratic participation under the principle of sustainable development. Likewise, while development rights should be kept, social forces should also be allowed to ensure, through judicial means, that the government shoulders due responsibility in legal aid and social insurance sectors. These moves are significant in ensuring equal opportunities, preventing the yawning gap between rich and poor and ease social conflicts with a procedural expression of rights.

2. Argument beyond theory: from thinking to action

Sixty years have passed since the Universal Declaration of Human Rights was endorsed, and mankind has for long made great achievements in the international and domestic practice of rights protection. In fact, since the concept of human rights came into being, the phrase of "human rights", its inherent moral sense and legal obligation, has never been as widely recognized and accepted by people of different cultural backgrounds. We therefore have every reason to feel optimistic of the prospects of such efforts as we discuss today how public interest litigation will promote the development of human rights.

The international standard in human rights protection can be called a "minimal standard". Correspondingly, we advocate a "minimal theory" in public interest litigation. Though those with metaphysical pursuit are doomed to never abandon the "ethical" debate of human rights, the human rights theories we are exploring and concerned about in practice today should focus more on the effective organization of and guidance to our actions, including actions of the government, NGOs and individuals. Based on the general description of human rights standards given by the international human rights system, the incisive point of public interest litigation is that it protects and promotes the "minimal standard" of rights for specific groups through general judicial cases and expands the "minimal theory" in the process of discovering and solving human rights problems. This is used as a common basis for dialogue and cooperation, and a solution to the endless and ever changing legal problems in a transformational society.

China does not have the case law or the private attorney general system of the Anglo-American legal system, nor a clear-cut public interest litigation system as precisely stipulated as in continental law. But trees of life are permanently green whereas theories and systems are always gray. Based on the "minimal theory" of public interest litigation, our thinking would point to a probably pragmatic strategic proposal. Dedicated to public interest litigation, we will spare no efforts in urging the government to live up to its obligations in human rights training and legal aid; we will exert our utmost to support NGOs and university legal clinics to carry out human rights training and legal aid, protect the rights and interests of the disadvantaged people such as farmers and migrant workers, in order to help define the general content of human rights training and develop standards of legal aids, help more social forces to get involved, so as to arouse the public awareness and achieve publicity and education of the rule of law so that the public will be concerned of, and voluntarily work for, public welfare.

The debate over the theoretical corroboration of human rights' universality is therefore not so important. What is noteworthy is that we have witnessed the plight of our compatriots and the pinch of the disadvantaged groups, of which we feel awfully sorry. We will witness the profound connotation of human rights in our public interest litigation. Meanwhile, the road to human rights protection is long and zigzagging, but every small single step forward will witness our meaningful contribution.

(The author Zhang Wanhong is Associate Professor of Jurisprudence of Wuhan University Law School.)

(The speech was delivered at the first session of the Beijing Forum on Human Rights.)