On 26 June 1945 in San Francisco, the Republic of China (ROC), first in suffering Axis aggression, was also first to sign the United Nations Charter and Statute for the International Court of Justice, which entered into force on 24 October, establishing the United Nations. The latter date followed the Double Tenth Agreement (10/10/1945) between Chaing Kai-Shek and Mao Zedong wherein the Chinese Communist Party (CCP) acknowledged the Republic’s Kuomintang government as legitimate and the Kuomintang the CCP as a legitimate opposition party. Full scale civil war resumed 26 June 1946. Before Mao proclaimed the People’s Republic of China on 1 October 1949, the ROC endorsed the Universal Declaration of Human Rights (10 December 1948). The mainland People’s Republic was not a party to UN human rights instruments before 1971 but reaffirmed the UN Charter and UDHR after the Republic of China was unseated. The PRC is now party to at least 17 international instruments [43].

The United Nations Office of High Commissioner for Human Rights characterizes universal human rights as “interrelated, interdependent and indivisible” often expressed in treaties, customary international law (i.e. implicit norms) or general principles. Documents comprise moral declarations, which implicitly presuppose a concept of human flourishing, and derivative binding treaties (covenants, conventions, protocols). The troika of the 1948 UDHR and the complementary international covenants on Economic, Social and Cultural Rights (ICESCR) and Civil and Political Rights (ICCPR), respectively opened for signature in parallel in 1966, comprise the so-called ‘Bill of Human Rights’, with others building upon them.

China is a full party to the ICESCR (signed 1997, ratified 2001); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, ratified 1988); the Convention on the Prevention and Punishment of the Crime of Genocide (signed 1949, ratified 1983); and the United Nations Convention against Transnational Crime (ratified 2003) whose concerns include organ trafficking (albeit patients rather than prisoner organs have comprised the transnational element in China).

China also signed, but has not ratified, the ICCPR in October 1998. While formally not bound by ICCPR provisions until ratification or accession, China is obliged not to defeat its general purpose. Per the Foreign Ministry at the time, China’s 1998 signature “demonstrates its firm determination to promote and protect human rights” as well as concretely commemorating the UDHR’s 50th anniversary, acknowledging a coherence bridging moral and legal rights. It also emphasized flexibility in prioritization: “the principle of the universality of human rights must be respected, but the specific conditions of each country must also be taken into consideration in observing this principle,” highlighting economic development successes against poverty. The tone markedly contrasts more recent ideological tightening contra “Western ideas”, expressly against universal values of human rights, parallel to an anticorruption campaign short on procedural protections [44].

China domestically has circulated “alternatively phrased” translations of signed human rights conventions rather than the UN’s official Chinese text, according to one source providing an interpretive buffer while also imprisoning those who ask for the ICCPR to be ratified [45]. Legally binding, however, are the official UN language versions, not CCP state paraphrases.

Human rights violations ending in organ harvesting from prisoners are, like human rights, also interrelated and interdependent. Violation cascades – one violation increasing probability of another given the substantive interrelationship of rights - increase vulnerability cumulatively whether in a specific person or in a targeted population. Rights violations via detention schemes and a death penalty regime subject to manipulation with lack of sufficient representation or appeal [46] precondition the subsequent act of forced organ extraction: risk accumulates to a specific subject and identifiable population. In this sense, the implication of the title of this paper is extensive and systemic, not simply perioperative. De jure and de facto factors, frequently in violation of international human rights standards, lead to and condition the supply of prisoners being solicited before execution or simply exploited in the first instance.

Specifically concerning the death penalty, variability includes bringing charges across 46 potentially capital offenses; death sentences and executions waxing and waning during ‘strike hard’ campaigns; and executions increasing before the new year. Furthermore, judges in China are not unaware that executees are the mainstay of transplantation. Beyond the design of preserving public order and social control through execution is added the exogenous influence of medical demand for execution as the chief gateway to a social good (organs for transplantation), at times indirectly abetted by the international community (e.g. The Transplantation Society’s policy supporting providing training to Chinese transplant surgeons under the banner of influencing eventual reform while simultaneously expanding capacity, as in the TTS Ethics Committee Letter of 6 November 2006 to TTS members [47]). It is notable that the initial 1984 Rules officially allowing organ harvesting from executed prisoners cited the initiative of medical personnel, not the state, as seeking to exploit this context for organ sourcing [16].

The practice of organ procurement in China that we have described violates freedom from torture and other cruel, inhuman or degrading treatment or punishment (UDHR, CAT, ICCPR Art. 7). Nowhere is an individual as subject to state power than in prison, and nowhere in prison than when awaiting execution. However, it is the contiguous context, not merely local ‘choice’, that is proper object of the human rights critique, exposing the step-wise cumulative vulnerability of prisoners at risk of being exploited in and through execution. This is aided and abetted by medical demand by an occupation that first pushed for exploiting execution for organ harvesting, and by a citizen population willing to rely upon, benefit from, and exploit the bound population - evident from ongoing reticence to participate in voluntary donor registration, yet seeking transplantation surgeries.

In general, an alibi of system reform has been countenanced too long. After over a decade of reform claims and the redefinition of the status of prisoners, the ethical outcome respecting human rights in China, here conforming with international medical ethical standards, is categorical cessation of organ sourcing from prisoners. Practically, this would remove the perverse incentives shared and relied upon by medical and judicial establishments, and by the general population. Given the nature of the violations and delay, justification of gradually realizing an ethical practice fails. This recognition should hold for actors and institutions of influence outside of China now in possession of over a decade of knowledge. While human rights violations in China span systemic structural preconditions, augmented by political whim, the most proximate point of intervention still lies with the medical community and professional societies. Admitting the failure of gradualism, and increasing, rather than decreasing, professional sanctions, may more quickly realize the intent: Cessation of prisoner organ sourcing generally; reducing perverse incentives in death penalty demand (moral hazard); and confronting the general population with two ethical alternatives: supporting or declining voluntary organ transplantation as a system, while bearing the cost of either choice.