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Formalistic cooperation

July 23, 2001

China’s record on racial discrimination under review

 

This summer, the record of the People’s Republic of China on combating racial discrimination was reviewed by the United Nations. BEATRICE LAROCHE, who attended the meeting, describes the wide range of issues that were discussed at the CERD session, and analyzes the Chinese government’s responses. This article focuses on the situation in mainland China, and does not cover Hong Kong and Macau.

 


 

 

 

The 8th and 9th combined periodic report of the People’s Republic of China (PRC) to CERD, the Committee which monitors the implementation of the International Convention on the Elimination on Racial Discrimination (the Convention), was reviewed on July 31 and August 1 in Geneva. The Convention was one of the first human rights treaties ratified by the PRC. This was the fifth time the PRC had had reports reviewed since it acceded to the treaty in 1981, with previous reports submitted in 1983, 1985, 1987, and 1996.

As with other UN human rights treaties, governments that have ratified them are required to submit reports every two years on the measures they have taken to incorporate the Convention’s provisions into domestic legislation and implement them in practice.

The Committee is composed of 16 “independent experts” who are not supposed to represent their respective governments. Unfortunately, this is not always the case. For example, several CERD experts, including the chairperson, inappropriately congratulated the PRC government on its successful Olympic bid.

Experts review the government report, ask questions about the situation in the country, request further information on key areas, listen to responses from government representatives and finally issue “concluding observations.” These highlight the positive and negative aspects of governments’ efforts to combat racial discrimination and make recommendations on how to improve compliance with the Convention. One expert is named as the “rapporteur” for each country under review during that session of CERD, and is given the primary responsibility for reading the materials available and drafting the concluding observations.

The review of the PRC opened with Chinese Ambassador Qiao Zonghuai introducing his government’s report, followed by presentations from representatives from Hong Kong and Macau. Ambassador Qiao led an almost 30-strong delegation to the hearing. Then the rapporteur on China, Luis Valencia Rodriguez of Ecuador addressed a wide spectrum of issues, referring to the recommendations of other treaty monitoring bodies and to reports by UN thematic mechanisms. Most of the other experts on the Committee also posed questions and made comments on the PRC report.

 

SOURCES OF INFORMATION

 

Government reports tend to be a catalogue of achievements and successes, and the PRC report was certainly no exception, giving hardly any indication of any problems involved in implementing the Convention. It was evident that even less attention had been paid to compiling the PRC’s report to CERD than for reports it has submitted to other treaty bodies in recent years. Most of the document was given over to an enumeration of relevant laws and policies, and a list of policies and programs, without any comparative or contextual analysis.

In such circumstances, access to alternative sources of information becomes crucial to conducting a meaningful review of a government’s report. CERD, like other treaty bodies, relies substantially on submissions from non-governmental organizations (NGOs). Human Rights in China (HRIC) is one of a number of NGOs that had prepared a report on the implementation of the Convention in the PRC to provide experts with an alternative picture. In addition, NGOs organized a briefing for experts on the day their review of the PRC’s report started, which 11 of the 16 members attended. Many experts referred to the extensive data provided by human rights NGOs — altogether over 1,250 pages, according to one Committee member. Unfortunately, organizations inside the PRC were not able to participate in scrutinizing the performance of the government.

UN treaty bodies encourage governments to consult with NGOs during the drafting of their reports. In its concluding observations, the Committee commended Hong Kong on its cooperation with NGOs, indirectly emphasizing that this had not been the case with the PRC government. Questions to the PRC delegation on consultation mechanisms and cooperation with NGOs went unanswered.

Throughout the session, experts commented on and inquired about the discrepancies between data and analysis presented by the government and by NGOs. For example, the PRC delegation was asked to comment on the contrast between its information and that from Tibetan groups, relating to matters such as state control over the study and transmission of Buddhism, the “patriotic re-education” imposed on monks, as well as discrimination in the areas of health, employment and education. In response, Ambassador Qiao merely questioned the “credibility” of NGOs and invited CERD members to visit the PRC and “see for themselves.”

In fact, two members of the Committee had done just that: Yuri Reshetov, of the Russian Federation, and Agha Shahi, of Pakistan, had recently been hosted in the PRC. During the session, although CERD members had dismissed the validity of “anecdotal” data, both told personal stories presenting a positive appraisal of the PRC’s implementation of the Convention, in particular in terms of religious belief and practice in Tibet.

In their comments, experts raised questions about the lack of an effective definition of discrimination in Chinese law, the apparent gap between laws on the books and their implementation, the vast differences in development in urban and rural and western parts of the PRC and tensions between the PRC’s economic development model and the protection of fundamental rights.

 

 

 

 

 

DEFICIENT DEFINITION

 

One of the key issues raised by CERD experts was whether the prohibitions on racial discrimination contained in China’s current legislation reflect the way the issue is defined in the Convention. Such definitional questions have been a focus of discussion when reports from China were reviewed by the Committee on the Elimination of Discrimination Against Women (CEDAW) and the Committee Against Torture (CAT).

Article 1 of the Convention defines racial discrimination broadly as covering “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” Patrick Thornberry of the UK noted that the PRC’s legislation lacked a definition of racial discrimination, while Patricia N. January-Bardill, from South Africa, pointed out that the PRC laws protect only recognized “national minorities” and thus do not prohibit discrimination against other sectors of the population. Indian expert Raghavan V. Pillai asked whether there were still groups that had not been officially recognized as distinct minorities, but were requesting such classification. The response of the Chinese delegation to this question was vague: “There are some individuals whose ethnic belonging cannot be clearly identified due to their complex background or ethnic origin.”

Committee members also expressed concern about whether the PRC had specific legal provisions and enforcement mechanisms to punish acts of racial discrimination, particularly concentrating on protections for individuals. They noted that the government report did not include statistics on the number of complaints, of prosecutions, or convictions in cases of racial discrimination. Ion Diaconu of Romania asked whether the law provides for punishments against violent acts committed against individuals of a different color, race or ethnic origin, and Rodriguez asked whether victims of racial discrimination were entitled to claim reparations.

Thus in its first recommendation, CERD “invited” the PRC to “review its legislation to ensure the adoption of a definition of discrimination in accordance with the Convention.” It also stated that the government should, “[give] full effect to the provisions of the Convention in its domestic legal order and ensure the penalization of racial discrimination, as well as access to effective protection and remedies through the competent national tribunals or other State institutions, against all acts of racial discrimination.”

 

 

 

 

 

 

 

AN EQUAL FUTURE

 

Since it is a vital mechanism for social advancement, a measure of equality and a locus for the preservation of minority cultures, a range of issues relating to education were given much attention during the session. Rodriguez mentioned concerns raised by the UN Committee on the Rights of the Child about the disparities in educational opportunities for different populations. In his concluding remarks, he emphasized the importance of bilingual education, while Thornberry asked for more details on this, and whether it was merely “viewed as a transition from the children’s mother tongue to Chinese.”

This subject elicited the strongest statement in the concluding observations: “The Committee is concerned about continuous reports of discrimination with regard to the right to education in minority regions, with particular emphasis on Tibet, and recommends the State party to urgently ensure that children in all minority areas have the right to develop knowledge about their own language and culture as well as the Chinese, and that they are guaranteed equal opportunities, particularly with regard to access to higher education.”

 

 

 

 

 

UNEVEN DEVELOPMENT

 

The relationship between poverty and racial discrimination was a central focus of the session. When UN High Commissioner for Human Rights Mary Robinson addressed the Committee at the beginning of its session, she pointed out that people in poverty often suffered “multiple forms of discrimination.”

Asked by Belgian expert Marc Bossuyt why ethnic minorities mostly lived in poor areas, the PRC delegation cited “historical reasons, harsh natural conditions and backward production mode... For a very long time, their forms of society evolved very slowly with hardly any progress in industrialization.” Rodriguez expressed concern about high rates of poverty among women in minority areas. According to CEDAW, he said, a disproportionate number of poor and illiterate women are in rural and minority areas, and women suffer additional discrimination in terms of employment. He asked the government to provide information on measures taken to improve their situation.

One of the few positive aspects CERD pointed to in its concluding comments was the government’s efforts “to promote economic and social development in economically backward regions inhabited largely by minority populations.” But at the same time, the Committee expressed concern that the government’s definition of “development” was overly narrow. CERD asserted that economic development projects did not ipso facto entail the equal enjoyment of economic, social and cultural rights” in minority regions.

CERD members highlighted the tensions between the PRC’s development model and the protection of fundamental human rights. Questions were raised about the extent to which national minorities were allowed to manage their own resources: did members of national minorities participate in the design of development projects, or were these imposed from above? What had been the real impact of the measures taken to improve living standards in minority areas? Was there any monitoring of preferential measures in minority areas to ensure that they actually benefited members of national minorities, as opposed to settlers? Pillai and German expert Gabriele Britz, a new member of the Committee, requested statistics on the nature of such preferential measures and their impact. “The projects and achievements are so many that we cannot give you a breakdown in the report,” the delegation replied, merely stating that these measures had “brought about tangible benefits to ethnic minorities.”

Some Committee members were hardly satisfied with such assertions, and as in previous sessions asked the PRC to provide “socio-economic data disaggregated by national and ethnic groups,” something the Chinese government has so far neglected to do in its reports to CERD. It also requested “further information on the enjoyment of economic, social and cultural rights by all nationalities of China and regarding steps taken to ensure that the minority population benefits from the general economic growth. In this context, the State party is requested to take all appropriate measures to ensure that the local and regional cultures and traditions are also promoted and the rights of the populations fully respected.”

 

 

 

 

 

DILUTING MINORITY POPULATIONS

 

In its review of the PRC in 1996, the Committee had expressed concern about Han settlement in minority areas. In 2001, CERD experts tried to assess whether in the interim, the government had reviewed policies or practices liable to “result in a substantial alteration of the demographic composition of autonomous areas.” Pillai pointed out imbalances between Han settlers and members of national minorities in minority areas terms of access to health, education and employment.

However, the delegation simply denied the existence of any such policies and incentives to settlers, and failed to present the results of the 2000 census, as requested. It specified that non-Tibetan people “working in Tibet for the region’s development are specialists and technical workers with a higher level of education and special skills. Most of them would go back to their place of origin upon the completion of their tenure in Tibet.”

At the NGO briefing, Erkin Aptelkin, Secretary-General of the Unrepresented Nations and Peoples Organization, denounced the growing population imbalance in Xinjiang resulting from the “unending flow of Han settlers.” He feared that Uighurs “would undergo the same fate as the Manchus in the last century.” This issue was also a key focus of unofficial reports on the situation in Tibet.

Although CERD did not issue any new recommendation on this question, French expert R□is de Gouttes reiterated that more information was needed on the advantages enjoyed by Han settlers in autonomous regions and on the resulting shifts in population composition. He emphasized that “following CERD 1996 recommendations, the government should revise the practices that are likely to result in population imbalances in autonomous areas.”

 

 

 

 

 

CONTROLS OVER POPULATION MOVEMENT

 

Broader issues of population movement and the rural-urban divide were another topic of discussion during the CERD hearing. In its alternative report to the Committee, HRIC argued that there is systematic discrimination against three groups—rural dwellers, internal migrants and national minorities. There are close connections between this and the government’s household registration system (hukou), which has institutionalized a form of discrimination based on descent, HRIC said. In her speech, Mary Robinson had pointed to a need for anti-discrimination legislation to prohibit discrimination based on descent, as well as on grounds of ethnicity or race.

Committee members took up such concerns in their remarks. Argentinean expert Mario Jorge Yutzis noted that the PRC government’s report failed to include any reference to discrimination against internal rural-to-urban migrants. He asked the delegation to comment on the hukou system and the restrictions it imposed on internal migration.

In response, the government delegation denied that the hukou system restricted freedom of movement and claimed that the floating population enjoyed the same rights as the rest of the population. Unspecified reform of the hukou system was under discussion, it claimed. This inadequate reply prompted a passionate reaction from Yutzis. The development model implemented in the PRC, he contended, has resulted in obvious tensions and conflicts between urban and rural areas, resulting in a lack of protection for rural dwellers. He asked the government to investigate this trend in its next report to CERD. Pointing out that the situation of rural-to-urban migrants resembles that of trans-border migrants in Western countries, he concluded that the PRC should not repeat the mistakes made, not only by Western countries, but also by countries like Argentina, that had resulted in the spread of shanty-towns outside big cities.

The hukou system and its associated rights problems had never before been addressed by any UN body. Although CERD’s concern did not translate into any specific recommendation, the mere fact that experts requested information opens a new field of inquiry and represents a recognition that this human rights issue needs to be addressed by the government.

 

 

 

 

 

FREEDOM OF RELIGION

Another contested area relating to minority autonomy and state control is religion. This had been a central aspect of the 1996 review, and de Gouttes focused his inquiries on assessing whether the Chinese government had implemented CERD’s 1996 recommendations. He thus inquired about discrimination on religious grounds, respect for religious rights and the integrity of places of worship.

The PRC delegation’s answer reflected the government’s exclusive recognition of churches and religious activities under state supervision of the state. On reported “atheism campaigns” in Tibet, the delegation claimed that these were not allowed in “sites for religious activities.” In general, the picture painted by the government delegation of the “religious atmosphere” in Tibet was a rosy one.

Questions were asked on whether members of the Chinese Communist Party (CCP) enjoyed freedom of religion. Given the leading role of the CCP in all areas of the PRC, including minority areas, this is an important issue. The PRC delegation’s response was unequivocal: “Each citizen has the right to choose on his or her own to join the [Party] or believe in a religion. Members of the CCP are atheists, therefore they should not have any religious belief.”

Members of the Committee evidently disagreed on the state of religious freedom in the PRC. Reshetov and Shahi, having enjoyed the Chinese government’s hospitality, argued that freedom of religion was fully respected; others questioned this. The lack of consensus was reflected in the concluding observations: “Some members of the Committee remain concerned with regard to the actual enjoyment of the right to freedom of religion by people belonging to national minorities in the State party, particularly in the Muslim part of Xinjiang and in Tibet.” However, CERD also pointed out: “The Committee recalls that a distinctive religion is integral to the identity of several minorities and urges the State party to review legislation and practices that may restrict the right of persons belonging to minorities to freedom of religion.”

 

ENFORCED UNITY

 

At the NGO briefing, Amnesty International had stressed how the concepts of “unity of nationalities” and “stability” were used as a justification for preventing national minorities from exercising their cultural and religious rights. This was most evident in “Strike Hard” campaigns, which targeted alleged “splittists,” and resulted in widespread police brutality and torture, and even execution of some activists. Experts asked the PRC representatives to give information and statistics about violations of the rights to physical integrity and to be protected against torture and ill treatment in autonomous regions. None were provided. In its recommendations, as it had in 1996, CERD asked “to receive statistics, disaggregated by nationality and region, relating to detention, imprisonment, alleged, investigated and prosecuted cases of torture, death sentences and executions.”

It is a rare occurrence in the work of UN treaty bodies that victims of human rights abuses are mentioned by name. On this occasion, Rodriguez inquired about the fate of Ngawang Choepel, a Tibetan student who was arrested while working on a documentary on traditional dance in Tibet and sentenced in 1996 to 18 years’ imprisonment for alleged spying. Rodriguez pointed to the contradiction between such repression and the pervasive insistence in the government’s report on how much effort it put into preserving cultural heritage.

 

 

 

 

 

REFUGEES, OR ECONOMIC MIGRANTS?

 

The plight of North Korean refugees in China was the focus of a number of comments. Rodriguez asked the government about reports it had returned some 5,000 asylum seekers back to North Korea. In reply, the delegation stated: “In recent years, some North Koreans illegally crossed the border into China for such economic reasons as shortage of food. They are not refugees as defined by international law. China’s repatriation of them to their country of origin is in line with the universally accepted international practice.” The PRC asserted that legislation on asylum seekers was being drafted, but did not provide details.

CERD’s recommendation was firm: “Particular concern is expressed regarding the treatment of asylum seekers from North Korea, who are reportedly systematically refused asylum and returned, even in cases when they have been considered to be refugees by the UN High Commissioner for Refugees.” Unfortunately, the statement on what to do about this was rather weak in the light of the severity of the situation: the PRC was merely asked “to implement objective criteria for the determination of refugee status.”

 

 

 

 

 

POPULATION

 

There was a similar disconnect between the level of concern expressed by experts on abuses related to the population policy and the concluding observations, which merely asked the government to include in its next periodic report “information on measures taken to prevent gender-related racial discrimination, including in the area of trafficking and reproductive health.”

Yet Rodriguez had highlighted the possibility that the population control policy could lead to acts of torture, cruel or inhuman treatment, including the practice of forced sterilization. He asked about sanctions faced by Tibetan families with “out-of-plan” children. Several experts stressed that governments should apply human rights standards to reproductive rights. In reply, the PRC delegation merely explained that implementation of the population control policy was more flexible for national minorities than for Han families.

 

 

 

 

 

REAL COMMITMENT?

 

Reiteration of CERD’s 1996 recommendations was a major feature of the 2001 session, demonstrating a lack of commitment to implementing the Convention on the part of the PRC government. This was also evident in the formulaic nature of the PRC delegation’s replies to questions from Committee members, and the fact that many questions were not answered at all. This points to more general questions about the PRC’s cooperation with the UN human rights mechanisms and the efficiency of these mechanisms.

On the positive side, the focus on past recommendations reveals the Committee’s commitment to continuity. Previous recommendations can continue to be used as benchmarks to assess the government’s efforts to combat racial discrimination. An incremental approach with strong institutional memory is crucial to the impact of the monitoring process. Another positive aspect of the CERD review of the PRC was the recognition that discrimination suffered by rural dwellers, the vast majority of the PRC population, and rural-to-urban migrants, should be on the Committee’s agenda. Since the government is required to address unanswered questions in its next report, CERD members will have a basis for continuing to scrutinize these issues and possibly to draft specific recommendations.

However, the 2001 concluding observations are weaker, both in form and content, than those issued in 1996. It is regrettable that the depth, scope and quality of questions raised by CERD experts during the session failed to translate into equally strong recommendations.

This is partly a reflection of the lack of consensus among CERD members alluded to above. It is also related to the severe time limitations, which were exacerbated by the fact that the PRC, Hong Kong and Macau each presented separate reports, and representatives of the two special administrative regions also attended the session. The PRC’s report was given the same time as accorded to all other countries — a full day of the Committee’s time, with one afternoon and one morning session. But when it came to responding to the Committee’s questions, the PRC delegation took only 45 minutes to reply, compared with 40 minutes for the Hong Kong delegation and some 20 minutes for Macau. (For more on this issue, see the article on CERD review of Hong Kong.)

Finally, the impact of CERD’s review is severely limited by the absolute blackout on news of the hearings or of alternative reports inside the PRC. This is also reflected in the fact that the Convention is not used domestically. A number of experts asked why the Convention had not been included in compilations of UN instruments on apartheid and genocide published in China and mentioned in the government’s report, and what publicity has been given to the Convention and previous CERD recommendations. The delegation’s answer was hardly convincing—that the government would put up CERD-related documents on the Internet.

Once again, this hearing showed the PRC government’s cooperation with UN human rights mechanisms to be more form than substance, intentionally isolated from the domestic debate and scrutiny which would give it real meaning and impact.

Further information

 

 

 

 

 

  • PRC’s 8th and 9th report to CERD (CERD/C/357/Add.4)
  • CERD 2001 Concluding observations (CERD/C/59/Misc. 16/Rev.3)
  • CERD 1996 Concluding observations (CERD/C/304/Add.15)
    All available on the Web site of the Office of the High Commissioner for Human Rights: http://www.unhchr.ch/
  • HRIC, “Implementation of the International Convention on the Elimination of all forms of Racial Discrimination in the People’s Republic of China,” July 2001
    http://www.hrichina.org/reports/CERD2001Web.htm
  • Amnesty International, “People’s Republic of China: Gross Violations of Human Rights in the Xinjiang Uighur Autonomous Region,” April 1999 (AI Index: ASA 17/18/99)
    http://www.amnesty.org
  • Department of Information and International Relations of the Tibetan Government-in-Exile, “Violations by the People’s Republic of China against the People of Tibet,” July 2001
    http://www.icare.to

    B□TRICE LAROCHE is UN Liaison at Human Rights in China.
     

 

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