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Implementation of the Convention on the Elimination of All Forms of Racial Discrimination in the People’s Republic of China: Progress

July 1, 2009


Progress under Specific Articles of the Convention
  Article 1
    Failure to adopt a definition of racial discrimination
    Failure to incorporate descent-based discrimination into legislative, judicial, administrative or other measures to end racial discrimination
 
  Article 2
    Detailed and disaggregated statistics support the effective implementation of the Convention
    Obstacles posed by the state secrets system
 
  Article 5
    Crackdowns on the civil and political rights of Tibetans
    National security policies and the rights of Uyghurs
    Economic development and the impact on Mongol culture
    Descent-based discrimination against rural hukou holders

Progress under Specific Articles of the Convention

Article 1: Definition of Racial Discrimination

Article 1(1)

In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, 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.

Failure to adopt a definition of racial discrimination

  1. The State party has not adopted a definition of racial discrimination in accordance with Article 1(1) of the Convention, as recommended in the Committee’s 2001 Concluding Observations.1 None of the laws and regulations cited in the State party’s report, including its Constitution, the Regional Ethnic Autonomy Law (REAL) and the Rules of the State Council on Implementation of the REAL, contain a definition of racial discrimination in conformity with the Convention. The State party’s response to the Committee’s recommendation does not address all the bases set forth in the Convention.
  2. The failure to adopt a definition of racial discrimination substantially hinders the State party’s ability to pursue, by all appropriate means and without delay, a policy to eliminate racial discrimination.2 It also hinders the Committee’s capacity to assess measures taken by the State party to give effect to the Convention’s provisions, including the elimination of distinctions, exclusions, restrictions and preferences based on race, color, descent, or national, or ethnic origin having the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms.3

Failure to incorporate descent-based discrimination into legislative, judicial, administrative or other measures to end racial discrimination

  1. The State party’s report, along with its Constitution, laws and regulations, fail to address descent as a prohibited basis of racial discrimination as set forth in Article 1(1). In the preamble to the Committee’s General Recommendation XXIX on Article 1, Paragraph 1, of the Convention (Descent), the Committee urged States parties to take “measures to eliminate descent-based discrimination and remedy its consequences.”4 The Committee affirmed that such discrimination includes discrimination against “members of communities based on forms of social stratification,” including “systems of inherited status,” and instructed that such discrimination could be recognized by, among other things, the “inability or restricted ability to alter inherited status.”5
  2. Under the State party’s household registration or hukou system, local authorities assign hukou designations to citizens that restrict eligibility for important social benefits based on “agricultural” (rural) or “non-agricultural” (urban) status. Moreover, children inherit their parents’ hukou status at birth, and despite attempts at official reform, the majority of rural hukou holders remain highly restricted in their ability to change their inherited status.6 The hukou system perpetuates distinctions, exclusions, restrictions and preferences based on descent, which have the effect of nullifying and impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms.
  3. As a descent-based group, China’s rural hukou holders suffer discrimination resulting from a system of social stratification and inherited status. In fact, in Paragraph 69 of its report, the State party itself acknowledges serious rural-urban inequalities in areas including poverty, infrastructure, and access to education and healthcare.7 Adopting a definition of racial discrimination in conformance with the Convention that would treat rural hukou holders as a descent-based group, would advance not only the State party’s implementation of the Convention, but would also enhance its efforts to address the inequitable treatment of China’s approximately one billion rural hukou holders,8 including over 200 million migrant workers.9
  4. HRIC urges the Committee to press on its 2001 recommendation that the State party adopt a definition of racial discrimination in compliance with Article 1(1) of the Convention. Specifically, the Committee should urge the State party to adopt a definition of racial discrimination that clearly prohibits discrimination on the basis of race, color, descent, or national or ethnic origin.

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Article 2: Implementation Measures

Article 2(1)

States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races…

Detailed and disaggregated statistics support the effective implementation of the Convention

  1. This Committee has made repeated requests for disaggregated socio-economic data necessary to evaluate the State party’s legislative, judicial, administrative or other measures and progress in implementing the Convention.10 Similar requests have been made in the concluding observations and recommendations of other treaty bodies, including the Committee on Economic, Social and Cultural Rights (CESCR), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC) and the Committee against Torture (CAT). HRIC notes that the State party report references its participation in the CESCR and CEDAW review processes as progress in implementing the Convention.11

    A table of representative requests for more detailed statistics, by both this Committee and other treaty bodies, is attached to this report as Annex 1.

  2. Although the State party’s report contains some disaggregated statistics, the provided information does not fully respond to the Committee’s prior requests. First, because charts annexed to the State party’s report are limited to “ethnic groups,” they exclude data that could be relevant to addressing the full range of prohibited discrimination, including descent-based discrimination. Second, while helpful, groupings of the populations of China’s ethnic groups, both generally and by gender, provide insufficient detail to fully assess the scope and impact of racial discrimination.
  3. Moreover, certain aggregated economic statistics in the State party’s report paint an incomplete picture of ethnic discrimination in the Tibetan Autonomous Region, (TAR), the Xinjiang Uyghur Autonomous Region (XUAR) and the Inner Mongolia Autonomous Region (IMAR).12 This is because the statistics aggregate information, for example, incomes of ethnic group members with those of newly-settled Han Chinese, who have migrated to these autonomous regions to enjoy development-generated employment that is largely unavailable to members of Uyghur, Tibetan or Mongol ethnicity.13 Without baseline information, benchmarks, and comparative indicators, a meaningful assessment of implementation progress is hampered. Detailed statistics for incomes and enjoyment of social and economic benefits, disaggregated by ethnicity, and for impact of Han migration and development policies and incentives on local ethnic groups would assist the State party in addressing disparities between ethnic groups and Han Chinese migrants.

Obstacles posed by the state secrets system

  1. One significant obstacle to obtaining accurate, comprehensive, and reliable information, including information relevant to addressing racial discrimination, is China’s state secrets system. The state secrets system consists of the Law on the Protection of State Secrets of the People’s Republic of China (1988),14 the Measures for Implementing the Law on the Protection of State Secrets of the People’s Republic of China (1990),15 and relevant provisions of the State Security Law,16 the Criminal Law,17 Criminal Procedure Law,18 and the Supreme People’s Court Interpretation of Certain Issues Regarding the Specific Application of the Law When Trying Cases of Stealing, Gathering, Procuring or Illegally Providing State Secrets or Intelligence Outside of the Country.19 The states secrets system sweeps a vast universe of data into a non-transparent black hole of protected information. The overbroad reach of the state secrets system makes it exceedingly difficult to constructively assess the State party’s implementation progress.
  2. State secrets are classified as “Top Secret” (绝密), “Highly Secret” (机密), and “Secret” (秘密). Classifications cannot be challenged or appealed. In addition, government documents that are not classified as state secrets can be designated as “neibu” (内部) (internal) and banned from public circulation. There is no clear line between classified state secrets and neibu information because state secrets charges may be applied to a case that involves only neibu information. Also, information can be classified as state secrets retroactively. Individuals can be subject to criminal and administrative sanctions, and Party members can be subject to Party sanctions for either knowingly or unknowingly disclosing, leaking, divulging, or possessing state secrets.20
  3. A wide range of information relevant to the identification and prevention of racial discrimination is classified as state secrets. In fact, entire categories of information related directly to the administration of ethnic group affairs are explicitly classified as “Top Secret” (绝密). The following are examples of regulations classifying relevant information, which would be helpful in evaluating the State party’s implementation of the Convention.

    Ethnicity-related Categories of Classified Information

    Classification

    “Analyses of important developments and information on anything that could seriously harm ethnic relations, or that for other ethnic reasons could endanger national unity or affect social stability”

    - State Ethnic Affairs Commission (SEAC) and National Administration for the Protection of State Secrets (NAPSS)21

    Top Secret (绝密)

    “Strategies and measures for dealing with the occurrence of major ethnic-related public order emergencies”

    - SEAC and NAPSS22

    Top Secret (绝密)

    “Strategies and measures used in handling ethnic separatist activities

    - SEAC and NAPSS23

    Top Secret (绝密)

    “Secret intelligence involving the coordination of national security, the stability of social administration, ethnic unity, …and other especially important intelligence”

    - Ministry of Public Security and NAPSS24

    Top Secret (绝密)

  1. Much of the information specifically requested in the Committee’s 2001 Concluding Observations may also be classified as state secrets. Specifically, the Committee’s requests for disaggregated statistics on gender-related racial discrimination in the area of trafficking and reproductive health, and on detention, imprisonment, torture, death sentences, and executions, may be classified under the state secret system.

    A table of state secrets regulations and classifications relevant to the Committee’s requests is attached to this report as Annex 2.

  2. In response to the Committee’s request for information on the State Ethnic Affairs Commission (SEAC), Paragraph 13 of the State party’s report describes SEAC’s role in “protecting the lawful rights and interests of ethnic minorities and in promoting the development of ethnic areas.” In addition to “formulat[ing] policy measures” to “support and help the ethnic minorities and ethnic areas,”25 the SEAC also acts with the National Administration for the Protection of State Secrets (NAPSS) to promulgate regulations implementing the State Secrets law, including classifying information related to implementation of the Convention. Specifically, as noted above, SEAC and NAPSS regulations classify as “Top Secret” “information on anything that could seriously harm ethnic relations, or that for other ethnic reasons could endanger national unity or affect social stability,” and “strategies and measures” related to “ethnic-related public order emergencies” and “ethnic separatist activities.”26 This raises serious concern over conflicts between SEAC’s stated function of “protecting the lawful rights and interests of ethnic minorities” and its role in controlling information relevant to the State party’s policies and practices that have an impact on the human rights and fundamental freedoms of ethnic groups.27
  3. HRIC urges the Committee to press the State party for a more detailed and thorough response to the Committee’s 2001 requests for:
  • Socio-economic data, disaggregated by national and ethnic group;
  • Information on measures taken to prevent gender-related racial discrimination, including in the area of trafficking and reproductive health; and
  • Statistics, disaggregated by nationality and region, relating to detention, imprisonment, alleged, investigated and prosecuted cases of torture, death sentences, and executions.
  • HRIC also urges the Committee to clarify with the State party whether and to what extent information requested from the State party is in fact classified as state secrets or may instead be made available for review by the Committee. The Committee should also request that the State party provide updated information on the current status of reforms (if any) to the state secrets system, and whether regulations hindering implementation of the Convention will be assessed under such reforms.
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    Article 5: Equal Enjoyment of Rights

    Crackdowns on the civil and politcal rights of Tibetans

    1. The State party’s policies in the TAR have had the effect of nullifying and impairing the recognition, enjoyment and exercise, on an equal footing, of the human rights and fundamental freedoms of Tibetans. These include documented inequities arising from the persistent exclusion of Tibetans from meaningful political participation, the lack of sufficient protections for Tibetan culture and religion, and the disproportionate costs burdened by Tibetans in the course of economic development.28 The State party’s report also acknowledges the “wide gap” between ethnic regions like the TAR and more economically-developed areas, as well as the extent of “absolute poverty in ethnic agricultural and pastoral areas.”29
    2. Failure to address fundamental inequalities suffered by Tibetans has contributed to unrest. Regrettably, the State party’s current approach to the Tibet situation, which includes the use of military force, undermines peaceful resolution through dialogue.
    3. Particularly disturbing are reliable reports of the arrest, detention, imprisonment, and mistreatment of what is believed to be thousands of Tibetans following security crackdowns in the wake of the March 2008 demonstrations.30 Regrettably, government authorities strictly regulated media access to the areas where demonstrations occurred. Information on the treatment and current status of detained and arrested Tibetans, and official responses and actions in the aftermath of the demonstrations, may be classified as state secrets. This raises serious concerns about the equal enjoyment of civil and political rights under Article 5, including rights to security of the person and protection by the State party against violence and bodily harm, to freedom of opinion and expression, and to freedom of peaceful assembly and association.
    4. The State party has also placed restrictions on the access of Tibetan detainees to legal assistance and representation. Lawyers seeking to defend the civil and political rights of Tibetan detainees, including lawyers of majority Han Chinese ethnicity, have been questioned by authorities, put under surveillance, had their communications monitored, and have even been stripped of their licenses to practice law.31 This raises serious concern over the rights of Tibetan detainees to equal treatment before tribunals and in the administration of justice under Article 5, and under the State party’s own Constitution and criminal procedure laws. Such actions also undermine the independence of the legal profession and the State party’s goal of establishing a rule of law. Moreover, by prohibiting Han Chinese citizens from advocating on behalf of their Tibetan neighbors, the State party undermines the promotion of “understanding, tolerance and friendship among nations and racial or ethnical groups” as encouraged under the Convention.32
    5. HRIC urges the Committee to request the State party to provide detailed information concerning the arrest, detention, imprisonment and mistreatment of Tibetans in the wake of the March 2008 demonstrations. Specifically, the Committee should make requests for information detailing:
    • The number of persons arrested, detained, and imprisoned after the March 2008 demonstrations, and the current status or conditions of those persons;
    • The number of cases investigated or prosecuted as a result of the March 2008 demonstrations, and the current status or outcomes of those cases;
    • Whether and to what extent arrested, detained, and imprisoned individuals have access to legal counsel, and the number of investigations or prosecutions in which the held individuals have and have not been represented by legal counsel; and
    • Whether and to what extent the requested information is in fact classified as state secrets or may instead be made available for review by the Committee.

    National security policies and the rights of Uyghurs

    1. The State party’s report cites developments in the XUAR, including reported increases in aggregated incomes and agricultural and industrial outputs. However, as noted by this Committee, economic development in minority areas does not ipso facto entail the equal enjoyment of economic, social and cultural rights in accordance with Article 5(e). Disaggregated information by ethnicity is necessary to assess whether these development policies benefit the predominantly Muslim Uyghurs. Without baseline information, benchmarks, and comparative indicators, a meaningful assessment of implementation progress is hampered.
    2. Reports of the State party’s harassment and mistreatment of Uyghurs under the banner of domestic security also raise serious concerns about the equal enjoyment of civil and political rights for Uyghurs, including the right to freedom of conscience, thought, and religion.33 The Committee’s 2001 Concluding Observations reflect these concerns, noting that “distinctive religion is integral to the identity” of ethnic groups such as the Uyghurs.34
    3. The State party’s participation in multilateral cooperation mechanisms such as the Shanghai Cooperation Organization (SCO) raises additional concerns that have cross-border and regional impacts. Under the framework of the Shanghai Convention on Combating Terrorism, Separatism and Extremism (Shanghai Convention),35 the State party is an active member of the SCO, which also includes the Republic of Kazakhstan, the Kyrgyz Republic, the Russian Federation, the Republic of Tajikistan, and the Republic of Uzbekistan. By linking the so-called “three evils” of “terrorism,”36separatism,”37 and “extremism38 under the Shanghai Convention, the State party risks exploiting the presumptive legitimacy of anti-terrorism measures to violate the rights of Uyghurs.
    4. The State party has long characterized the Uyghurs’ peaceful expressions of ethnic, cultural, and religious identity as separatist, extremist or even terrorist threats.39 Based on this characterization, the State party has cracked down hard against Uyghurs, including by severely curtailing religious and cultural freedoms during the period of Ramadan and increasing arrests and detentions.40 The State party’s invocation of a “war on terror” and separatist, extremist, or terrorist labels raise serious concerns regarding protections for ensuring an appropriate balance between national security and protection of human rights and fundamental freedoms under international norms and standards, such as the Johannesburg Principles.41
    5. Under the SCO framework, racial discrimination issues might arise from the cooperative efforts of other SCO member states, some of which border the XUAR. For instance, the Shanghai Convention obligates member states to cooperate on extradition, raising serious concerns over individuals at risk of persecution, mistreatment, or execution upon extradition to the State party’s jurisdiction. SCO members also share intelligence via the Regional Anti-Terrorist Structure (RATS), which has created a database with alarming potential for misuse. Finally, it is unclear whether any oversight is exercised by the State party or an SCO process concerning a member’s application of one of the “three evil” labels to an individual or group operating within that particular member’s borders.
    6. HRIC urges the Committee to request information regarding the State party’s participation in the SCO and the impact of State party measures to implement the SCO on the State party’s obligations under international law, including the Convention.
    7. HRIC also urges the Committee to request from the State party specific and detailed information:
    • The databases maintained by the SCO’s RATS mechanism, the types of individualized information that are compiled and analyzed by RATS, and how that information is used and exchanged by the State party as an SCO member;
    • The number of individuals extradited to or from the State party’s jurisdiction pursuant to the Shanghai Convention, and for what crimes; and
    • Protections for ensuring the appropriate balance of national security and protection of rights under international standards.

    Economic development and impact on Mongol culture

    1. The State party’s report places emphasis on economic development policies and reported increases in aggregated incomes in the IMAR to suggest improvements in the lives of Mongols.42 Moreover, without baseline information, benchmarks, and comparative indicators, a meaningful assessment of implementation progress is also hampered. However, the State party report’s lack of detailed information disaggregated by ethnicity, combined with reports of mass displacements of Mongol herdsmen and their households, raises grave concerns about the equal enjoyment of rights by members of the Mongol ethnic group.
    2. For instance, the State party’s “eco-development” policies have resulted in the forced displacement and relocation of hundreds of thousands of Mongol herders and their families away from their ancestral lands. Reports state that approximately 800,000 Mongols have been dispossessed of their land and livestock since 2001, forced impossibly to adapt to living conditions and occupations for which they have inadequate preparation or training.43 The State party’s policies give rise to serious concerns about the destruction of the Mongol group’s pastoral culture and way of life.
    3. HRIC urges the Committee to request that the State party provide detailed statistics, disaggregated by ethnicity, on the impact of IMAR economic development and ecological management policies on the rights of Mongols and other ethnic groups. Specifically, the Committee should request detailed disaggregated information related to the following:
    • The number of ethnic group households that have been displaced and relocated by the State party’s desertification prevention programs;
    • The locations to which such households have been relocated, and the numbers relocated to the respective locations;
    • Whether and to what extent displaced ethnic group households have been compensated for dispossession of their land and assets, including livestock;
    • Whether and to what extent the State party has implemented economic, social, and cultural adjustment programs, including occupational skills training, for displaced ethnic group households relocated to urban areas; and
    • Whether and to what extent displaced members of ethnic groups have been able to find new occupations or livelihoods in their new locations.

    Descent-based discrimination against rural hukou holders44

    1. Under the State party’s hukou household registration system, close to one billion rural hukou holders45 experience unequal enjoyment of their fundamental rights under Article 5 of the Convention. Due to barriers to alteration of hukou status, rural hukou holders suffer descent-based discrimination and unequal access to social welfare benefits in comparison to their urban counterparts. These inequalities undermine both the State party’s stated policy to “place people first” and its efforts to build a “harmonious society characterized by democracy, rule of law, equity, and justice.”46
    2. Through the hukou system,47 all citizens are given their hukou identification through a registration process administered by local public security authorities. In 1963, authorities began categorizing citizens into either “agricultural” (rural) or “non-agricultural” (urban) residents according to their particular place of residence. Children inherit their parents’ hukou status when they are born, thereby inheriting their social identities through descent.48
    3. The State party links social benefits and rights to hukou identification, thus creating the effect of impairing the equal enjoyment of rights by rural hukou holders. This state-constructed hukou identity serves as the basis for systematically depriving rural hukou holders of core rights and perpetuates their economically and politically disadvantaged status, including after they migrate to urban areas. Though narrow channels for crossing hukou barriers exist, such as becoming an officer in the military or passing college entrance exams,49 these channels are not available to the majority of migrant workers and rural residents.50 Eligibility for public benefits and services based on hukou status constitute descent-based preferences that put rural hukou holders on unequal footing with urban hukou holders. Ongoing problems of the hukou system have been recognized by the State party, as reflected in reform efforts.
    4. Since the Committee’s last review in 2001, the State party has further implemented a series of hukou reforms in an attempt to address the wide gap and growing inequalities between rural and urban residents, including reforms to lessen the effect of discrimination against rural hukou holders. Some examples of reform include:
      • At the provincial level there are trends towards abolishing or relaxing the distinction between an “agricultural” and “non-agricultural” hukou and allowing rural residents to obtain an urban hukou after meeting certain requirements (e.g. possession of a stable job and stable residence).
      • Recently at the national level, the National Development and Reform Commission indicated that restrictions in the hukou system will be abolished by 2020.
      • In April 2009, the State party’s Human Rights Action Plan (2009-2010) referenced pushing forward hukou reforms to relax requirements for settling in cities.

      For details on select State party reforms since 2001, see Annex 3.

    5. Notwithstanding the State party’s reform efforts, there has been only limited effect on the elimination of hukou-based discrimination, which has even been perpetuated in some cases. Ongoing problems include:
      • For most rural hukou holders who migrate to urban areas, requirements to obtain a local hukou such as having a “stable job or source of income” and a “stable place of residence for a specified period of time” are too difficult to overcome.51
      • The implementation of hukou reforms initiated at the provincial level is uneven from one province to the next.52
      • At the national level, although the State party’s Human Rights Action Plan (2009-2010) referenced hukou reforms, the scope of the reforms are limited to “small and medium-sized cities” without a specific timeframe or implementation mechanism.53
    6. In face of this ongoing hukou-based discrimination, there have been civil society efforts to challenge the restrictions for obtaining a local urban hukou. For example, since April 2007, Beijing public interest lawyers Cheng Hai [程海] and Li Subin [李苏滨] have filed several lawsuits against the public security departments to request a change of hukou status. The lawyers requested that the public security authorities observe the Regulations on Household Registration [中华人民共和国户口登记条例]. Through these lawsuits, the lawyers’ goal was to promote institutional changes in the hukou system that would allow every citizen the right to obtain a hukou in his or her habitual residence.54

      As of May 2009, the lawyers have not won any of the lawsuits at the lower trial levels and are still pursuing appeals. Pending the court’s decisions, public security authorities continue to implement regulations that restrict the majority of rural hukou holders, both rural residents and migrant workers, from changing their hukou status.

    Two Lawyers’ Lawsuits

    Lawyers Cheng Hai [程海] and Li Subin [李苏滨] are originally from other provinces but have lived in Beijing for many years. After several unsuccessful attempts at applying to change their original hukou into a Beijing hukou based on the Regulations on Household Registration [中华人民共和国户口登记条例] (“RHR”) passed by the Standing Committee of the National People's Congress (the highest legislature in China), they filed lawsuits against the Beijing Public Security Department for refusing their application to grant them a Beijing hukou.

    Lawyers Cheng and Li argued that the RHR requires citizens to register as inhabitants in their habitual residence (Art. 6) and when they leave their original habitual residence for more than 3 months, they must apply to change their original hukou to one in their new habitual residence (Art. 16). The lawyers claimed that according to the RHR, they have the right to acquire a Beijing hukou because Beijing is their current habitual residence. However, the Beijing Public Security Department used lower-level regulations promulgated by the Ministry of Public Security and the Beijing government to restrict them from acquiring such a hukou. The two lawyers argued that the lower-level regulations contradict the higher-level RHR, and that the public security authorities should observe the higher-level RHR instead of the lower-level regulations. The lawyers have not won any of the lawsuits, but they have continued to appeal the court decisions as of May 2009.55

    1. The over 200 million56 rural-to-urban migrant workers continue to face descent-based discrimination due to their inability to change their hukou. Through the State party’s measures, which link hukou identification with provision of public rights and services, descent-based discrimination disadvantages these migrants in a number of significant areas, including education, employment, healthcare, housing, and political participation.
    • Education

      • Although the Ministry of Finance57 has abolished the collection of “temporary student fees” [借读费], an additional educational fee is levied on migrant children based on their hukou status, the majority of migrant families are still paying these fees,58 which constitute a significant portion of the average migrant’s annual income.59
      • Students with an urban hukou in large cities can be admitted into the city’s universities with a lower exam score,60 which has the effect of impairing equal enjoyment of educational rights for rural hukou students.60
    • Employment

      • Hukou-based discrimination is still prevalent in the workplace.61 Local governments of large cities have used regulations and policies to exclude migrants from the enjoyment of employment opportunities.62
      • Even if hired, those who do not have a local urban hukou usually do not enjoy equal wage and benefits compared to local urban hukou holders.63
      • Migrant workers are especially vulnerable to such discrimination because they are often unaware of their rights and do not have financial or legal resources to combat the discrimination.
    • Healthcare

      • Access to many health care insurance programs are conditional on having a local urban hukou. Thus, rural migrants are often denied medical care in urban areas and are restricted in their ability to obtain subsidized healthcare.64
    • Housing

      • In most large cities, the government provides preferential housing benefits only to local urban hukou holders to purchase and rent housing at a lower cost.65
    • Political Participation

      • Hukou registration is commonly linked to voting rights. Without a local hukou, migrants are often required to vote in their place of registration. Localities such as Beijing have undertaken reforms for allowing migrants to vote in their place of habitual residence. These reforms, however, generally require migrants to first return to their place of hukou registration and obtain official approval to vote in their place of actual habitual residence.66 These burdensome requirements have the effect of restricting the ability of poor migrants to exercise their voting rights on equal footing with urban hukou holders.
  • During the current economic crisis, many migrant workers are now being forced to return to rural areas as a result of widespread unemployment.67 In March 2009, figures showed that the number of unemployed migrant workers had risen to 23 million.68 This trend raises concerns that a massive number of displaced migrant workers, desperate for work, are even more vulnerable to exploitation in the workforce, thereby amplifying existing hukou-related discrimination.69 Other concerns include:

    • As migrant workers are forced to return to their hometowns, additional conflicts and problems arise from land contracts. Many migrant workers, believing that they would work in the cities long-term, leased out their land to neighbors to farm. However, upon their forced return, the migrant workers renege on their contracts and reclaim the land, sometimes through violence.70
    • Migrant workers, after their return to their hometowns, experience both the lack of employment opportunities and the unequal social rights and benefits to which rural hukou residents in general are subject.
  • The failure to meaningfully address descent-based discrimination against China’s approximately one billion people rural hukou holders not only undermines the Committee’s comprehensive review of the State party’s progress, but also the State party’s implementation of the Convention. The State party has acknowledged that the hukou system and resulting hukou-based discrimination require reform.71 Inclusion of the discrimination of rural hukou holders under the Committee’s review would contribute to the State party’s reform efforts and effective implementation of the Convention.
  • HRIC urges the Committee to press the State party to provide specific information on current reforms to the hukou household registration system, including specific details concerning progress, timeframes, and impact of these reforms on the equal enjoyment of human rights and fundamental freedoms protected under the Convention.
  • In addressing inequalities between rural and urban areas, HRIC also urges the Committee to request that the State party provide more detailed and comprehensive information, including baseline information, benchmarks, and comparative indicators, regarding the enjoyment of economic, social, and cultural rights by rural inhabitants, including rural-to-urban migrants, and the measures taken to ensure that rural inhabitants have equal enjoyment of these rights.
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    Endnotes

    1. UN Committee on the Elimination of Racial Discrimination, “Concluding Observations of the Committee on the Elimination of Racial Discrimination: China,” UN Doc. A/56/18, para. 241, September 8, 2001. ^

    2. International Convention on the Elimination of All Forms of Racial Discrimination, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force Jan. 4, 1969. ^

    3. Ibid., Art.1(1). ^

    4. UN Committee on the Elimination of Racial Discrimination, “General Recommendation XXIX on Article 1, Paragraph 1, of the Convention (Descent)” (2002), preamble. ^

    5. Ibid., preamble and para. 1(a). ^

    6. Congressional-Executive Commission on China, China’s Household Registration System: Sustained Reform Needed to Protect China’s Rural Migrants (2005). ^

    7. The State party acknowledges  “[d]ifficulties related to roads, electricity and drinking water abound in agricultural and pastoral areas,” statistics on “absolute poverty in ethnic agricultural and pastoral areas,” “backward” educational facilities in rural schools, and a “serious shortage of medical personnel and facilities in … outlying mountainous and pastoral areas.” UN Committee on the Elimination of Racial Discrimination, “Thirteenth Periodic Reports of State Parties Due in 2007: China,” UN Doc. CERD/C/CHN/10-13 (2009), para. 69. ^

    8. The one billion figure includes both rural hukou holders living in rural areas and the over 200 million migrant workers with a rural hukou. National Bureau of Statistics of China, Statistical Communiqué of the People's Republic of China on the 2008 National Economic and Social Development (2009); National Bureau of Statistics of China, Statistical Communiqué on Labor and Social Security Development in 2008 (2009). ^

    9. National Bureau of Statistics of China, Statistical Communiqué on Labor and Social Security Development in 2008 (2009). ^

    10. See note 1, para. 250. ^

    11. UN Committee on the Elimination of Racial Discrimination, “Thirteenth Periodic Reports of State Parties Due in 2007: China,” UN Doc. CERD/C/CHN/10-13 (2009), paras. 68, 82, 125. (hereinafter the State party’s report) ^

    12. The State party’s report, paras. 37-39. ^

    13. Minority Rights Group International and Human Rights In China, China: Minority Exclusion, Marginalization and Rising Tensions (2007), p. 23, note 178. ^

    14. Law of the People’s Republic of China on the Guarding of State Secrets (hereinafter State Secrets Law) [中华人民共和国保守国家秘密法], issued by the Standing Committee of the National People’s Congress [全国人民代表大会常务委员会], promulgated on September 5, 1988, and effective on May 1, 1989, Art. 2. ^

    15. Measures for Implementing the Law of the People's Republic of China on Guarding State Secrets [中华人民共和国保守国家秘密法实施办法] (hereinafter Implementation Measures), issued by the National Administration for the Protection of State Secrets [国家保密局], promulgated and effective on May 25, 1990. ^

    16. State Security Law of the People's Republic of China [中华人民共和国国家安全法] (hereinafter State Security Law), issued by the Standing Committee of the National People's Congress [全国人民代表大会常务委员会], promulgated and effective on February 22, 1993.^

    17. Criminal Law of the People’s Republic of China [中华人民共和国刑法] (hereinafter Criminal Law), issued by the National People’s Congress [全国人民代表大会], promulgated on July 1, 1979, revised in 1997, and amended 1999, 2001, 2002, 2005, 2006.^

    18. Criminal Procedure Law of the People’s Republic of China [中华人民共和国刑事诉讼法] (hereinafter Criminal Procedure Law), issued by the National People’s Congress [全国人民代表大会] on July 1, 1979, amended on March 17, 1996 and the amended version took effective on January 1, 1997. ^

    19. Supreme People’s Court Interpretation of Certain Issues Regarding the Specific Application of the Law When Trying Cases of Stealing, Gathering, Procuring or Illegally Providing State Secrets or Intelligence Outside of the Country [最高人民法院关于审理为境外窃取、刺探、收买、非法提供国家秘密、情报案件具体应用法律若干问题的解释], promulgated on January 17, 2001 and effective on January 22, 2001. ^

    20. Human Rights in China, State Secrets: China’s Legal Labyrinth (2007). ^

    21. Regulation on State Secrets and the Specific Scope of Each Level of Secrets in Ethnic Work  [民族工作中国家秘密及其密级具体范围的规定], issued by the State Ethnic Affairs Commission [国家民族事务委员会] and the National Administration for the Protection of State Secrets [国家保密局], promulgated on March 17, 1995, Art. 3.1.1. ^

    22. Ibid., Art. 3.1.2. ^

    23. Ibid., Art. 3.1.3. ^

    24. Regulation on State Secrets and the Specific Scope of Each Level of Secrets in Public Security Work  [公安工作中国家秘密及其密级具体范围的规定], issued by the Ministry of Public Security [公安部] and the National Administration for the Protection of State Secrets [国家保密局], promulgated on March 28, 1995, and effective on May 1, 1995, Art. 2A.2. ^

    25. The State party’s report, para. 13. ^

    26. See note 21, Art. 3.1.1., 3.1.2. and 3.1.3. ^

    27. The State party’s report, Para. 13. ^

    28. See note 13, p. 14-16, 18-25, 29-33. ^

    29. The State party’s report, para. 69. ^

    30. Human Rights in China, “Stop Crackdowns in Tibet, Start Dialogue,” March 14, 2008; Human Rights in China, “HRIC Calls upon Chinese Authorities to Release Information on Tibetan TV Producer and Other Detained Individuals,” April 17, 2008; Howard W. French, “Intellectuals in China Condemn Crackdown,” New York Times, March 24, 2008. ^

    31. Human Rights in China, “Chinese Lawyers Offer Legal Help to Detained Tibetans,” April 4, 2008; Human Rights in China, “Chinese Authorities Target Lawyers Offering Legal Assistance to Tibetans,” April 9, 2008. ^

    32. See note 2, Preamble. ^

    33. World Uyghur Congress, A Report of the Violations of the Convention for the Elimination of Racial Discrimination by the People’s Republic of China Against the Uyghur People (2009), p. 18-20. ^

    34. See note 1, para. 244. ^

    35. Shanghai Convention on Combating Terrorism, Separatism and Extremism [打击恐怖主义、分裂主义和极端主义上海公约] (hereinafter Shanghai Convention), June 15, 2001. ^

    36. Under the Shanghai Convention, “‘terrorism” is defined to include, among other things, any act “intended to cause death or serious bodily injury to a civilian, or any other person not taking an active part in the hostilities in a situation of armed conflict or to cause major damage to any material facility, as well as to organize, plan, aid and abet such act, when the purpose of such act, by its nature or context, is to intimidate a population, violate public security or to compel public authorities or an international organization to do or to abstain from doing any act, and prosecuted in accordance with the national laws of the Parties.” Shanghai Convention Art. 1.1.1. ^

    37. The definition of “separatism” includes “any act intended to violate territorial integrity of a State including by annexation of any part of its territory or to disintegrate a State, committed in a violent manner, as well as planning and preparing, and abetting such act, and subject to criminal prosecuting in accordance with the national laws of the Parties.” Shanghai Convention Art. 1.1.2. ^

    38. The definition of “extremism” includes any act “aimed at seizing or keeping power through the use of violence or changing violently the constitutional regime of a State, as well as a violent encroachment upon public security, including organization, for the above purposes, of illegal armed formations and participation in them, criminally prosecuted in conformity with the national laws of the Parties.” Shanghai Convention Art. 1.1.3. ^

    39. Human Rights Watch and Human Rights in China, Devastating Blows: Religious Repression of Uighurs in Xinjiang (2005), p. 15-17. ^

    40. China Imposes Ramadan Security Crackdown in Muslim Northwest,” Agence France-Presse, September 4, 2008; Edward Wong, “Arrests Increased in Chinese Region,” New York Times, January 5, 2009. See also Uyghur Human Rights Project, A ‘Life or Death Struggle’ in East Turkestan: Uyghurs Face Unprecedented Persecution in Post-Olympic Period (2008). ^

    41. Johannesburg Principles on National Security, Freedom of Expression and Access to Information (hereinafter Johannesburg Principles), (1995). ^

    42. The State party’s report, Paras. 37-38. ^

    43. Geoffrey York, “Mongol Herdsmen No Longer Free to Roam,” Globe and Mail, March 30, 2009; “China’s Mongols See Bleak Future for Their Culture,” Agence France-Presse, May 3, 2009. ^

    44. For more background information on the hukou system, please refer to HRIC’s parallel report submitted to the Committee in 2001. HRIC, Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination in the Peoples Republic of China (2001). ^

    45. See note 8. ^

    46. UN Human Rights Council, Working Group on the Universal Periodic Review, “National Report: China,” UN Doc. A/HRC/WG.6/4/CHN/1 (2008). ^

    47. During the mid-1950s, in order to stem what was referred to as the “blind flow” of migrants into the city, the State party imposed a number of administrative mechanisms, and also sought to impose controls on the population as a means of maintaining order through provisional rules for a system of population registration. These policies culminated in the 1958 Regulations on Household Registration [中华人民共和国户口登记条例]. However, it was not until 1963, that the Ministry of Public Security (MPS) began categorizing citizens into either “agricultural” (rural) or “non-agricultural” (urban) residents, which was strengthened by a State Council notice in 1977. See Kam Wing Chan and Li Zhang, “The Hukou System and Rural-Urban Migration in China: Processes and Changes,” The China Quarterly, no. 160 (1999); Yao Xiulan [姚秀兰], “Evolution and Reform of Chinese Domicile Registration System” [论中国户籍制度的演变与改革],  Shenzhen Daxue Faxue [深圳大学法学], 2004, no.5. ^

    48. See note 6. ^

    49. Zhonghua renmin gongheguo hukou dengji tiaoli [中华人民共和国户口登记条例], issued by the Standing Committee of the National People’s Congress [全国人民代表大会常务委员会], promulgated January 9, 1958 and effective on January 9, 1958, Article 10. ^

    50. Congressional-Executive Commission on China, Annual Report 2008 (2008). ^

    51. Yao Xiulan [姚秀兰], “Evolution and Reform of Chinese Domicile Registration System” [论中国户籍制度的演变与改革],  Shenzhen Daxue Faxue [深圳大学法学], 2004, no.5. ^

    52. See note 6. ^

    53. National Human Rights Action Plan of China (2009-2010), issued by Information Office of the State Council of the People's Republic of China, April 13, 2009. ^

    54. Based on the interpretation issued by the Supreme People’s Court, habitual residence refers to the place where a citizen lives for over a year after leaving the domicile. See Guanyu guanche zhixing “Zhonghua Renmin Gongheguo minfa tongze” ruogan wenti de yijian (shixing) [最高人民法院关于贯彻执行《中华人民共和国民法通则》若干问题的意见(试行)], issued by the Supreme People’s Court, promulgated on January 26, 1988, effective on April 2, 1988 ^

    55. “Fangtan Cheng Hai: wei he xuanze huji susong” [访谈程海:为何选择户籍诉讼], The Beijing News [新京报], May 5, 2007; “Hukou qianyi di yi an gongmin heshi neng ziyou qianxi” [户口迁移第一案 公民何时能自由迁徙]Law & Life [法律与生活], September 20, 2007; Li Subin [李苏滨], “Hukou qianyi an shang su zhuang” [户口迁移案上诉状], May 28, 2007. ^

    56. See note 9. ^

    57. Guanyu gongbu quxiao he tingzhi zhengshou 100 xiang xingzheng shiyexing shoufei xiangmu de tongzhi [关于公布取消和停止征收100项行政事业性收费项目的通知], issued by the Ministry of Finance and the National Development and Reform Commission, promulgated November 13, 2008, effective on January 1, 2009. ^

    58. China Labor Bulletin, The Children of Migrant Workers in China (2009). ^

    59. In 2006, migrant laborers in Chinese cities earned an average of 966 yuan (US$120) per month, much more than the average farmer, but still very low compared to urban residents. See “Migrant Workers Earn Average Monthly Income of US$120,” Xinhua News Agency, October 23, 2006. ^

    60. “Ren-Da daibiao tiyi quanguo tongyi gaokao lüqu fen shu xian” [人大代表提议全国统一高考录取分数线], Southern Metropolis Daily [南方都市报], March 9, 2006. ^

    61. “Da xue sheng jiuye gaobai: ‘huji qishi’、’shenti shexian’ rang ren zuo nan” [大学生就业告白:“户籍歧视”、“身体设限”让人作难], Workers Daily [工人日报], April 18, 2007; “Jizhe diaocha: jiuye qishi ‘yin hun bu san,’” [记者调查:就业歧视“阴魂不散”], Workers Daily [工人日报], January 8, 2007, http://acftu.people.com.cn/GB/67561/5258189.html; “Zhichang chongtu ‘jiu zong zui’ zhi huji qishi” [职场冲突“九宗罪”之户籍歧视], China Business Post [财经时报], May 17, 2007. ^

    62. For example, migrants are only permitted certain types of work, usually the least desirable, such as in slaughterhouses, cleaning, mining, and on construction sites. They are also prevented from working in sectors such as finance, real estate and advertising. See 2000 nian Beijing shi yunxu he xianzhi shiyong waidi renyuan de hangye, zhiye fanwei [2000年北京市允许和限制使用外地人员的行业、职业范围], issued by Beijing Labor and Social Security Bureau [北京市劳动和社会保障局], promulgated and effective on December 1, 1999. In November 2008, the Beijing municipal government announced a system that will provide employers annual subsidies of up to 10,000 yuan (US$1,470) for employing jobseekers with a Beijing urban hukou. Migrants without such a hukou are explicitly denied the same employment opportunities, therefore reinforcing the discriminatory nature of the urban hukou system. See Human Rights Watch, “China: Economic Crisis Increases Risks for Migrant Workers,” January 23, 2009. ^

    63. According to a 2004 survey, migrant workers suffer hukou discrimination in the areas of wages, pension, medical insurance, unemployment insurance and participation in the work union. While there may be other reasons to explain differential treatments, such as human capital and difference of enterprises, the study shows that hukou discrimination is a major factor in differential treatments to urban workers and migrant workers. See Yao Xianguo [姚先国] and Lai Puqing [赖普清], “Zhongguo laozi guanxi de chengxiang huji chayi” [中国劳资关系的城乡户籍差异], Zhejiang da xue jing ji xue yuan jing ji yan jiu [浙江大学经济学院经济研究], 2004, no. 4. ^

    64. See note 6. ^

    65. There are several housing benefits in Beijing that migrants do not enjoy.  First, the “Housing Fund System” [住房公积金制度] enables working urban hukou holders to have a portion of their paychecks invested into a housing fund. When they are ready to purchase, the account additionally allows them to secure loans from the bank at a lower interest rate. Second, the “Economically Affordable Housing” [经济适用房制] government policy enables Beijing hukou holders to purchase housing at a substantially lower price. Third, the “Low-rent Housing Program” [廉租房制度] ensures that Beijing hukou holders who do not meet a minimum income enjoy a lower rent for housing.^

    66. See note 6. ^

    67. “Painful Lunar New Year for China’s Migrant Workers,” Wall Street Journal, January 23, 2009.^

    68. Peter Foster, “China’s Jobless Migrant Workers Hits 23m,” Daily Telegraph, March 25, 2009. ^

    69. Human Rights Watch, “China: Economic Crisis Increases Risks for Migrant Workers,” January 23, 2009. ^

    70. “Migrants Mass Return Tests Rural Officials,” Xinhua News Agency, March 5, 2009.^

    71. For example, see Annex 3 on select hukou reforms since 2001.^

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