On October 8th, 2010, the Norwegian Nobel Committee awarded the Nobel Peace Prize to Liu Xiaobo of China.[1] At the time of the announcement, Mr. Liu was sitting in a Chinese prison cell, less than one year into an 11-year sentence for subverting state power.[2] The announcement was quickly denounced by the Chinese government, which had warned the committee months earlier not to choose Mr. Liu for the prestigious award.[3] Liu was convicted of subversion in 2009, based on a series of six articles he published through the BBC and on his involvement in writing, signing, and distributing a document called Charter ’08.[4] [5]

Mr. Liu was convicted of violating Chapter 105 of the Criminal Code of the People’s Republic of China.[6] This section establishes significant penalties for “[w]hoever organizes, plots, or acts to subvert the political power of the state and overthrow the socialist system.”[7] Under the law, Mr. Liu’s innocence is a tough sell.

In fact, Mr. Liu has made a career of subverting the political power of the Chinese state. In his series of articles published by the BBC, Liu disparaged the Communist Party’s record on human rights, and mocked “the absurd theory of a party that takes the place of the state.”[8] He further predicted the impending doom of communist rule in China, insisting “there is no hope for them to continue for long since countless cracks have already appeared in the edifice of their dictatorship.”[9] And while his articles were largely focused on operations within the Communist Party, his work on Charter ’08 was an assault on the larger Chinese political system.

Charter ’08 is more than a call for reform, or a complaint about government corruption – it is a revolutionary document.  It is a bold and comprehensive call for political freedoms and democratic processes, aimed at a government famous for ignoring both.

As a statement of goals, it goes farther than many of the world’s most liberal democracies, and certainly farther than their founding documents. The American Declaration of Independence was a powerful statement on individual rights, as was the preamble of the United States Constitution.  However, Charter ’08, written with similar purposes, looks more like the modern than the original versions of America’s founding documents.  Like American national charters, Charter ’08 stresses freedom of expression, freedom of religion, and the separation of governmental powers.[10] It also recognizes additional rights absent from the American founding documents, like the rights of women, which the United States took generations to acknowledge.  As a fundamental principle, Charter ’08 asserts “[t]he integrity, dignity, and freedom of every person – regardless of social station, occupation, sex, economic condition, ethnicity, skin color, religion, or political belief.”[11] Many Americans are still dreaming of these very things.

The document’s bold language is surely due in part to its authors’ willingness to draw from influences outside of China, especially the traditions and doctrines of Western democracies like the United States. The Charter paraphrases both the American Declaration of Independence and the Bill of Rights of the United States Constitution. It also quotes the western principle of “one person one vote,” established by the US Supreme Court gerrymandering cases, among other places.[12] It outlines a government strikingly similar to that of the United States, composed of three independent branches, conceived around values of Federalism and Republicanism.  It even draws from the foundation of South African multi-racial democracy, calling for “truth in reconciliation.”[13]

Some of these goals are incompatible with one-party rule in China, but others, like increased freedoms of speech and religion, could be enacted without systemic overhauls.  The Charter makes clear, however, that it sees little potential to work for change within the current system.  Its introduction consists primarily of a scathing historical account of Chinese communism, which it credits with “a long trail of human rights disasters” that has resulted in “several generations have[ing] seen their freedom, their happiness, and their human dignity cruelly trampled.”

It was this brazen indictment of communist rule that earned Liu Xiaobo an 11-year prison term.  The penalties established by Chapter 105, under which Mr. Liu was convicted, include life imprisonment for “ringleaders or those whose crimes are grave.” In its published verdict, the sentencing court found Mr. Liu to be both a ringleader of the Charter ’08 movement and a person whose crime was grave, referring to his actions (writing) as “the crime of a major criminal.”[14]

Interestingly, Mr. Liu is the only person to have been incarcerated over Charter ’08, which had some 300 original signatories.  Of course, Liu had been in trouble before.  He was arrested for his participation in the Tiananmen Square protests of 1989, and had become a somewhat prominent dissident.[15] But, as at least one observer has argued, the articles for which he was prosecuted weren’t widely distributed, or popularly read.[16] From that perspective, the government’s decision to prosecute Mr. Liu – naming articles that are presumably censored in China, and quoting potent sections of them in its published verdict – may have done more to spread Liu’s message than to stifle it.  Even within China, Charter ’08 was effectively censored.  Almost 2 years after it was issued, a mere 10,000 signatories have added their names to the document.[17]

Perhaps the government’s handling of Mr. Liu was pure ham-handedness.  This is the same government that, in true Orwellian fashion, has called the Peace Prize an “attack” on China.  By prosecuting and incarcerating Mr. Liu, Chinese officials may have turned a fringe writer into an international icon.

Or maybe Mr. Liu was a genuine threat to the Chinese government.  After 20 years of political agitation, perhaps government officials had come to fear his influence. As a prominent dissident, his detention may serve to ward off the Charter’s other supporters from pursuing their agenda.

Charter ’08 makes a 200-year leap over the Declaration of Independence, calling for social, racial, and gender equality.  A 21st century document, it prioritizes both environmental protection and civic education.  But the Chinese government is a product of 20th century totalitarianism.  From this perspective, Liu’s prosecution may be consistent with China’s continuing democratization.  Chapter 105, after all, is somewhat reminiscent of the Alien and Sedition Acts passed early in our American Democracy. It is probably unreasonable to expect China’s single-party government to be a great laboratory of civil liberty.

Charter ’08 may not be the ultimate statement of Chinese political reform. Among other things, its unmistakable reliance on American principles and historical experiences may be unattractive to the Chinese masses.

But whatever the merits of his charter, and whatever the motivations behind his incarceration, Mr. Liu has earned his prize.  Ironically enough, the Charter Liu helped write cites the law he was later prosecuted under.  On freedom of expression, the Charter asserts that:

“The provision in the current Criminal Law that refers to ‘the crime of incitement to subvert state power’ must be abolished. We should end the practice of viewing words as crimes.”[18]

Through his conviction, Mr. Liu has made a powerful case for at least this section of Charter ’08.  With the Nobel Prize announcement, China’s practice of “viewing words as crimes” has again been brought into the international spotlight.

[1] Norwegian Nobel Committee, The Nobel Peace Prize for 2010, Nobelprize.org, Oct. 8, 2010, http://nobelprize.org/nobel_prizes/peace/laureates/2010/press.html.
[2] Id.
[3] See Shirong Chen, China warns Nobel Committee not to Honour Dissident Liu, BBC, Sept. 28, 2010, http://www.bbc.co.uk/news/world-asia-pacific-11429869.
[4] Case Update: International Community Speaks Out on Liu Xiaobo Verdict, Human Rights In China, Dec. 30, 2009, http://www.hrichina.org/public/contents/press?revision_id=172717&item_id=172713.
[5] Prosecutors Indict Liu Xiaobo; Trial to Take Place December 23, Congressional – Executive Commission on China, Dec. 22, 2009, http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=133497&PHPSESSID=0fdadfe211be6f9c9a01a8eae33ca11b.
[6] Prosecutors Indict Liu Xiaobo; Trial to Take Place December 23, supra note 5.
[7] Crimes Endangering National Security (promulgated by Order No.83 of the President of the People’s Republic of China, Mar. 14, 1997, effective Oct. 1, 1997) P.R.C. Laws, Chapter 105, para. 2, available at http://www.cecc.gov/pages/virtualAcad/exp/explaws.php#criminallaw (list of Chinese laws and English translations from the Congressional Executive Committee on China).
[8] Case Update: International Community Speaks Out on Liu Xiaobo Verdict, supra note iv.
[9] Id.
[10] Perry Link, China’s Charter ’08, The New York Review of Books, Dec. 18, 2010, http://www.nybooks.com/articles/archives/2009/jan/15/chinas-charter-08/.
[11] Id.
[12] Id.; See generally Reynolds v. Sims, 377 U.S. 533 (1964) (standing for the principle that state legislature districts must be divided roughly equally by population).
[13] China’s Charter ’08, supra note 10.
[14] Case Update: International Community Speaks Out on Liu Xiaobo Verdict, supra note 9.
[15] The Nobel Peace Prize for 2010. supra note 1.
[16] Donald Clark, Verdict in Liu Xiaobo Case: English Translation, Chinese Law Prof Blog, Dec. 30, 2009, http://lawprofessors.typepad.com/china_law_prof_blog/2009/12/verdict-in-liu-xiaobo-case-english-translation.html.
[17] Perry Link, What Beijing Fears Most, New York Review of Books, Jan. 27, 2010, http://www.nybooks.com/blogs/nyrblog/2010/jan/27/what-beijing-fears-most/.
[18] China’s Charter ’08, supra note 10.

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