Implementation of the CRC in the PRC

A Parallel NGO Report by Human Rights in China, submitted on August 2, 2005 to the Committee on Rights of the Child in advance of its review of the Second Periodic Report of the People's Republic of China on Implementation of the International Convention of the Rights of the Child.

Full Report with Executive Summary (PDF, 604K)

Overview
The People’s Republic of China (PRC) ratified the Convention on the Rights of the Child (CRC or “the Convention”) in 1992, yet serious concerns remain on what rights have been implemented and how they have been implemented. Over the past two decades, China has undergone rapid macroeconomic growth; yet largely due to national government policy choices, the benefits of that growth have been concentrated in the urban coastal regions. The rights of China’s most vulnerable populations—rural inhabitants, migrants, women and ethnic minorities—have begun to backslide, with a disproportionate impact on children and their access to basic services such as health, education and housing.

Human Rights in China (HRIC) submits this report to facilitate the Committee on the Rights of the Child’s (the Committee) examination of the PRC’s second periodic report. HRIC’s report highlights those areas of concern that affect China’s most vulnerable children. Although the PRC has pointed to its developing country constraints as an obstacle for implementation, the Committee on Economic, Social and Cultural Rights recently concluded that there are no significant factors affecting the PRC’s capacity to effectively implement its human rights obligations. Further, certain CRC obligations came into immediate effect in 1992, including the obligation to implement the rights of the child without discrimination. Yet, as HRIC’s report makes clear, thirteen years later, the quality of children’s rights in China often remains contingent on geographic location, ethnicity, sex, or hukou status.

HRIC’s report emphasizes three major points. First, despite the PRC promulgation of legislation and programs that fall under the Convention’s scope of concern, the government’s policy choices have had a negative impact on the rights of children in China, and that impact has been disproportionately shouldered by the population’s most vulnerable groups. In fact, even where available information shows that rural inhabitants, for example, have lower availability, accessibility, acceptability and adaptability of education, the national government continues to give preference to coastal urban development in the allocation of resources.

Second, measures in the PRC to protect children in exceptionally difficult conditions—children within the juvenile justice system, AIDS orphans, and sexually exploited and trafficked children—are particularly inadequate in both formulation and implementation.

• Children in the juvenile justice system: laws and procedures relating to juvenile justice, are unclear and do not meet international standards on preventing exploitation, and in the execution of those procedures, children’s rights are violated;
• AIDS orphans: the growing number of AIDS orphans in poor rural areas often have little access to basic services because of the narrow definition for those children that the PRC uses, and because of insufficient allocation of resources to those children;
• Sexually exploited and trafficked children: inadequate national attention has been paid to the large number of trafficked children throughout China, resulting in defective reporting and collection of data.

Finally, the centrality of children’s voices and opinions is an integral part of the Convention’s principles and implementation framework. In this report, HRIC highlights the areas in which this substantive right under the Convention is most seriously undermined. In the context of education, the media, and legal proceedings, children’s voices are often silenced or undermined. In addition to the constraints on freedom of expression posed by the legal, social and technical architecture of information control in China, children in vulnerable groups are also disproportionately impacted by the digital divide and additional regulations restricting access for children on the Internet.

The PRC report details formal legislation and policy promulgated, and introduces social initiatives undertaken. The report is weak in four critical respects:

• Assessment of progress: systematic assessments of the implementation of the laws, policies and initiatives promulgated are lacking;
• Statistical methodology: statistical information is inadequate, and despite repeated requests from this Committee and other international bodies, it is not disaggregated by region, gender, age, ethnic minority, migrant or other status;
• Control of information: the state secrets legal and regulatory framework that controls the collection and dissemination of information—including statistics on child labor, nationwide figures on number of abortions and other areas affecting the rights of the child—undermines the PRC’s capacity to structure effective policy and program responses;
• Clarity of law and implementation: there are inconsistent definitions of “minor” in various laws and little or no rules and regulations that clarify procedures in a number of substantive areas.

The identification of some benchmarking and standard-setting in the PRC report is a useful start, looking towards the next periodic report. However targets need to be based on international standards, supported by adequately staffed and resourced monitoring mechanisms, and assessed on the basis of disaggregated data.

The key issues highlighted in HRIC’s report are summarized below, followed by a series of recommendations aimed at encouraging more comprehensive and effective implementation of the Convention.

General Measures of Implementation: Children in the Law

With only two laws that specifically address the protection and children’s rights, and other provisions relating to children scattered through PRC legislation, there is no comprehensive legal framework to implement the rights of the child. Because of this, “the child” is inconsistently defined in different areas of law. On the face of the laws in place, it is unclear whether the Convention can be invoked or whether other remedies are available should violations occur, undermining its effective implementation.

General principles: Non-Discrimination and Equal Development

The PRC violates the fundamental provision on non-discrimination in its policy choices that have, since “open and reform” in 1978, aimed to develop and modernize urban coastal regions, leading to serious and growing poverty gaps between the urban and rural areas. Although some programs such as the “Go West” campaign have reportedly invested a great deal of capital in the interior, information available suggests that programs funded have primarily been hard infrastructure such as rail and roadways, linking provinces to Beijing. Inadequate and retreating investment in education and healthcare contributes to the growing poverty gaps, and levies a disproportionate burden of financing those services on local governments that pass the cost onto poor rural residents, with significant ramifications for children’s development.

Civil rights and freedoms: Children’s Voices and Participation

The interconnected rights to information and to expression are crucial to the full development of the child. Although there have been some recent programs promulgated that seek to highlight some children’s voices, several factors impact on suppressing or distorting them. These include broad official constraints on information and expression, the impact of propaganda and ideological control, and the inability of a wide range of children to access gateways to information—including the Internet, affordable schools, and other publications.

Basic health and welfare: Family Planning Policies and the Sex Ratio

The so-called “one-child policy” has been credited with keeping down the country’s population. However, the combined impact of cultural preference for boys in rural parts of China, the PRC’s lack of a social security system, and the non-registration of unwanted girls, has resulted in a sex ratio imbalance. Incidents of sex-selective abortion and female infanticide remain widespread in certain areas, and unregistered, unwanted girls are left without access to social benefits. While some policies have been promulgated to combat these trends, the male-centered justifications for these policies often in fact perpetuate societal prejudices against women.

Education, leisure, and cultural activities: Access for Vulnerable Groups

Children from different vulnerable groups—ethnic minorities, girl children, migrants and rural inhabitants—all face particular difficulty in accessing the right to education. Due in large part to a 1994 policy shift that decentralized the funding of compulsory education, the quality of education has been polarized along economic lines, affecting China’s most vulnerable children:

• Rural children: because they receive insufficient funds from the national government, local governments pass the burden of financing to families through fees and other extra-budgetary expenses. The result is that children in wealthy urban areas are more likely than those in poor rural areas to achieve basic primary education;
• Migrant children: rural children that move with their families to cities lack the requisite hukou status to access city schools, leaving them with few options to access schools that allow them to advance to higher grades;
• Ethnic minority children: due to poor implementation of law and lack of supervision, ethnic minority children continue to face discrimination in their schools despite legislative directives to allow them instruction in their own language;
• Girl children: the pervasive problem of discrimination against girls means that throughout the population, girls have unequal access to schools and remain a high proportion of the country’s illiterate.

Special Protection Measures: Protection of Children in Exceptionally Difficult Conditions

Three subgroups of vulnerable children in China present an additional set of challenges and require the implementation of special protection measures: children in the juvenile justice system, AIDS orphans, and sexually exploited and trafficked children. These children have been failed by the legal system and the communities of which they are a part, or exploited by the market as commodities. For example, the PRC’s conviction rate of 99.9 percent of children in the criminal justice system already raises serious concerns over adequate due process and fairness. There is an increased chance of abuse outside the formal legal process, however, where little to no judicial oversight is involved in sending children into the systems of Work (Study) Reform Schools or Custody and Education, a process that violates the Convention because it results in the deprivation of freedom without adequate protections. There is serious concern with regard to the sheer number of children trafficked China annually, but due to the lack of data and no disaggregation of statistics where provided, adequate review of implementation cannot be carried out. Finally, due to pervasive social discrimination, and lack of allocation of resources and treatment facilities for children, the growing population of AIDS orphans is one of the most serious areas of concern in China.

Recommendations

Following the Executive Summary, HRIC offers a set of categorized and concise recommendations aimed at improving both the reporting process and the implementation of the Convention. The recommendations seek to address those areas of concern highlighted in this parallel report, and offer suggestions on how to advance the development of benchmarks to assess ongoing compliance as a means to improve program assessment and implementation.