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Implementation of the ICECSR in the PRC

April 14, 2005

A Parallel NGO Report by Human Rights in China, submitted on April 14, 2005 to the Committee on Economic, Social and Cultural Rights in advance of its review of the First Periodic Report of the People's Republic of China on Implementation of the International Covenant on Economic, Social and Cultural Rights.

Full Report with Executive Summary (PDF)

 


 

Executive Summary

In this report, Human Rights in China (HRIC) looks primarily at the People’s Republic of China’s (PRC) implementation of its obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) specifically as they relate to “worse-off regions or areas” and “specific groups or subgroups which appear to be particularly vulnerable or disadvantaged,” a focus mandated by the Covenant. The PRC Report relies primarily on national aggregated data and focuses on urban areas—thereby focusing on just 37.7 percent of the population (2002). Furthermore, the pervasive control and regulation of information by the PRC government through State Secrets, State Security, and other laws, social and police controls, and censorship technology, not only undermines effective monitoring and review of The PRC government’s compliance with the Covenant, but also impedes its ability to formulate properly designed policies and programs that facilitate public scrutiny and participation.

HRIC’s report addresses the hidden costs of China’s inequitable economic growth and the unbalanced burden it has imposed on vulnerable and marginalized groups, and concludes that the PRC government needs to report, monitor and evaluate more systematically and concretely the extensive formal legislation to implementation. Despite extensive promulgation of reform legislation and policies that have generated economic growth of nearly ten percent per annum during the past 20 years in China, vulnerable populations—rural inhabitants, ethnic minorities, women and migrant workers, and their families—are still largely excluded from the benefits of China’s economic growth due to both the preferential development of urban areas and to mechanisms such as the hukou registration system.

Despite past and present official announcements regarding reforms or dismantling of the hukou system, the restrictive hukou registration system still in place prevents those migrants from having equal access to housing, healthcare and work benefits. The actual implementation of any reforms, including an administrative licensing system for urban residency, will need to be carefully monitored. The growing social and economic gap is also fueling increasing social unrest and instability. According to official police data for 2003, there were at least 58,000 “mass incidents” involving more than three million people protesting a range of issues including corruption, forced relocations and evictions, lay-offs and unpaid back-pay.

In short, four years after ratifying the ICESCR, the PRC government has yet to use “all available means” to take deliberate, concrete and targeted steps towards realizing the rights recognized in the Covenant, and has not effectively complied with its immediate obligation of non-discrimination. It has also failed to adhere to the principles enumerated in the Declaration on the Right to Development explicitly adopted by the Committee, to adopt national policies that promote fair distribution of the benefits of development and equal opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income.

  • Article 2: Measures Taken to Guarantee the Full Realization of Rights

The PRC’s report emphasizes both the hard data of economic growth and the promulgation of extensive legislation to demonstrate the steps it has taken to implement the rights under the Covenant. However, as the General Comments outline, legislative measures are important but are not exhaustive of the obligations of a State Party which include both obligations of conduct and result. Therefore, the full range of measures adopted, the basis on which they are considered most appropriate, and the identification of benchmarks and goals are relevant to the monitoring and review of a State Party’s record.

Although the government’s report acknowledges that there exists a poverty gap in China, it fails to acknowledge and detail the extent to which vulnerable populations specifically are increasingly disadvantaged despite economic growth. Whereas the PRC Report largely uses national, aggregate data to show overall economic growth, that data cannot provide a complete assessment of its progressive implementation of the rights under the Covenant insofar as worse-off regions and vulnerable populations are concerned. Not only does the PRC Report present an incomplete picture, it also fails to provide proper description and analysis of the current situation. As HRIC’s report demonstrates by using available data and international standards to analyze the situation of particular groups and regions, serious inequality exists between China’s urban and rural residents, between its Han and ethnic minority groups, and between its settled and migrant population.

The PRC government is also under an obligation to give effect to the Covenant in its domestic legal order. However, the legislation it has passed does not clearly and adequately set forth avenues to redress for individuals and groups to vindicate wrongs or to protect rights. In addition to the formal legal system, the right to criticize and appeal the government (petitions and visits system) is guaranteed under Chinese law, and is used by increasingly large numbers of individuals. Yet the use of Public Security measures and detentions to clamp down on petitioners raises questions regarding violations and abuses of the rights of these petitioners, as well as undercuts the petition system as an effective means of grievance and redress.

  • Articles 6 and 7: The Right to Work and to Favorable Working Conditions

The unequal economic opportunities and income resulting from development policies that favor urban areas has led to increased rural-urban migration as rural inhabitants move to urban areas to seek better employment opportunities. The hukou system still in place also leads to institutionalized discrimination where migrant workers bear the disproportionate impact of unfavorable and unjust working conditions, including non-payment of wages, unsafe working environments and working hours that exceed the maximum in the labor law. These problems are compounded by the fact that access to information about workplace health and safety and industrial accidents is impeded by the State secrets regulatory framework. The lack of transparency impacts particularly on those vulnerable groups—migrant workers and rural residents—who make up a large proportion of those working in factories and mines.

  • Article 8: The Right to Join a Trade Union

The PRC’s declaration regarding Article 8.1(a) states that the application of Article 8.1(a) shall be consistent with the relevant provisions of the Constitution of the People’s Republic of China, Trade Union Law of the People’s Republic of China and Labor Law of the People’s Republic of China. However, this declaration sidesteps the government’s obligation to modify its domestic legal order to conform and implement its obligations under the Covenant. The right to join a trade union of one’s choice is a necessary precondition that enables workers to seek remedies where the government may have violated their rights as guaranteed by the Covenant. The PRC Report maintains that Chinese domestic legislation protects the right to freedom of association and characterizes the All China Federation of Trade Unions (ACFTU) as a voluntary mass organization by the government. However, the fact that it is the only officially recognized union, undercuts the right to join a trade union of one’s choice.

  • Article 9: The Right to Social Security

For the migrant workers that make up a majority of those working in factories and in mines, the lack of a hukou means that their access to social security, medical, health and unemployment benefits is severely limited or non-existent. Despite some reforms to the system announced in the 1990s, migrants are in practice still excluded from access to social security. As a result, despite the overwhelming number of industrial and mining accidents that take place annually, migrant workers often have to forgo medical treatment for illness or work place injuries in the face of prohibitive cost.

  • Article 11: The Right to an Adequate Standard of Living

While the PRC government’s report recognizes a poverty gap between the rural and urban areas, it emphasizes that standards of living have overall improved, and asserts that no discrimination exists. The report details the size of housing and the urban infrastructure and notes the inadequacy of housing for rural inhabitants. Yet, the report does not give any account of the depth of the divide between the rural and urban areas; it also does not describe concrete measures, monitoring, and evaluation mechanisms for how the government will now counter its own reform era development strategy and preferential policies that created this social and economic gap.

In addition, the right to housing in particular, in both urban and rural areas continues to be violated by arbitrary evictions, land grabbing, corruption, major infrastructure development and urban renewal. Migrants who face limited housing options under the hukou system are often consigned to extremely poor housing through the factories where they work, which is overcrowded, unsafe, unhygienic, and lacking in basic heating and electric facilities. Migrants who are not housed through their factories can often live only on the outskirts of cities in overcrowded homes that also fall short of adequate housing. In the rural areas, through development schemes such as the Three Gorges Project, nearly one million people have been forcibly relocated, without adequate consultation or compensation. Finally, the development policies and decades of migration of Han settlers into Xinjiang, Inner Mongolia, Tibet and other autonomous regions have irreversibly changed the demographics and damaged the habitat of many of China’s ethnic minorities.

  • Article 12: The Right to the Highest Attainable Standard of Physical and Mental Health

Despite China’s rapid economic growth and an increase in total healthcare expenditure from 1994 to 2004, the GDP percentage share of funds allocated to public health has shrunk. The inadequate and reduced financing of health services, particularly for poor regions, has resulted in a growing health gap between poor rural and wealthier urban areas. Migrants remain excluded from healthcare in urban areas due to the hukou system, but the situation for them in their home villages is often no better. The healthcare system that had in the past delivered basic healthcare to the majority of rural residents has been drastically reduced without the support of the central government. While 90 percent of villages were covered in the 1970s, by 1989 only 4.8 percent were covered, causing many to forgo medical attention even when they are ill, creating a vicious cycle of illness breeding poverty and vice versa. Compounded by increased privatization and high user fees, inadequate preventative care programs and the resulting spread of infectious diseases including HIV/AIDS, there is now a growing health crisis in China’s rural areas. All suggest that the PRC government falls far short of providing the minimum core content of its obligations under Article 12.

  • Articles 13 and 14: The Right to Education

The disparity in the implementation of rights in the urban and rural regions is particularly telling in the area of the right to education in large part because the central government has, since the 1980s, shifted the burden of providing education to the local level without corresponding transfer of funding, and in 1994 announced that township governments would be responsible for implementing compulsory education. Local governments therefore make up for the funding shortfall through extra-budgetary resources derived from school fees, tuition fees, book fees and other direct and indirect fees, resulting in a system that has widely varying levels of education quality and access across China’s provinces. Despite abolition of many fees in 2000, eighty percent of all education funds go to urban schools. Statistics also indicate that because of the one-child policy and traditional preference for boys, an out-of-plan girl child may not be registered in the hukou system, and therefore will be excluded from public education.

Likewise, the hukou system has created serious problems for rural to urban migrants in educating their children. Migrant children cannot attend urban public schools without paying more than they can afford. Private schools set up by migrants are unregistered, lack adequate resources, and will not qualify those students to sit for exams for admission to the public school system. Thus, migrants are denied equal access to education enjoyed by their settled urban counterparts.

  • Article 15: The Right to Cultural Life and the Benefits of Science

Chinese citizens continue to face significant restrictions in their access to uncensored information, and in the expression of any opinions critical of the government in print, other media, or on the Internet, as reflected in detentions of journalists, internet activists, intellectuals, and grassroots activists. The PRC government has also not adequately protected and respected the right of minority groups to practice their religions and engage in cultural activity. In Xinjiang and Tibet in particular, the PRC government has increasingly invoked national security and the threat of separatism to curtail cultural and religious practices that extend to education and publications. This is in addition to government-sponsored migration policies bringing an influx of Han settlers that shift the local demographics and irreversibly alter the traditional lifestyles of the minority populations.

  • Recommendations

HRIC’s report concludes with two sets of recommendations, one directed at the Committee and the second at the government of the PRC. The recommendations track the articles of the Covenant and are submitted as a constructive contribution to the full review of the PRC report. They also serve as a contribution to advancing the development of concrete steps to monitor and inform legislative and other measures, and provide benchmarks for assessing ongoing compliance.

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