Indigenous World 2019: China

Written on 24 April 2019. Posted in China

Officially, the People’s Republic of China (PRC or China) proclaims itself to be a unified country with a diverse ethnic make-up, and all nationalities are considered equal in the Constitution.

Besides the Han Chinese majority, the government recognizes 55 minority nationalities within its borders. According to the latest national census in 2010, the minority nationalities’ population stands at 111,964,901 persons, or 8.49% of the country’s total population. There are also “unrecognized ethnic groups” in China, numbering a total of 640,101 persons.

The Law of the People’s Republic of China on Regional National Autonomy is a basic law for the governance of “minority nationalities” in China. It includes establishing autonomous areas of nationalities, setting up their own local governance and the right to practice their own language and culture. These regional national autonomous areas make up approximately 64% of China’s total territory.

The Chinese government does not recognize the existence of “indigenous peoples” in the PRC despite voting in favour of the UNDRIP. The right to self-determination as “indigenous peoples” is thus not applicable and it results in a lack of legitimate institutions for indigenous group representation. The “minority nationalities” are socially marginalized in the Chinese context.

Constitutional amendment and the “Chinese Nation” (zhonghuaminzu)

In 2018, the 1^st Session of the 13^th National People’s Congress adopted a Constitutional Amendment which, for the first time, articulates the term “Chinese nation” (zhonghuaminzu) in the Chinese constitution.¹ To emphasize the singular form of Chinese “nation” instead of the plural “nationalities” indicates a clear trend towards a nation-building goal of achieving “the great rejuvenation of the Chinese nation”. ² This normative change may negatively affect indigenous peoples’ possibilities of claiming their rights and their legal status as minority nationalities in

the Chinese legal framework. 

Communist Party’s leadership on ethnic and religious affairs

The Central Committee of the Communist Party of China (CPC) adopted a decision on deepening reform of the Party and state institutions at the third plenary session of the 19^th CPC Central Committee in March 2018.³ According to this decision, the United Front Work Department of the CPC Central Committee will exercise unified leadership over the State Ethnic Affairs Commission and directly administer religious affairs. These institutional reforms have implications for some laws, making it inadmissible to file a complaint through the courts as it is would now also be filed against the CPC. The changes in the law alter their focus because these laws only regulate actions taken by an administrative agency or any employee thereof that infringe upon the lawful rights and interests of citizens, legal persons, or other organizations.⁴ These institutional changes thus severely reduce the possibility of accessing legal remedy for individuals belonging to China’s ethnic, linguistic and religious groups, including those claiming to be indigenous peoples. 

Input to and outcomes of the CERD and the UPR

The major events of importance in the UN mechanisms this year were the 31^st session of the Universal Periodic Review (UPR) under the Human Rights Council (HRC)⁵ and the Committee on the Elimination of Racial Discrimination’s (CERD) review on the combined 14^th to 17^th periodic reports of China.⁶ There were numerous related issues raised during these UN processes, including side events organized by NGOs.⁷

Criminalization

Abuse of laws on countering “terrorism”, “separatism” and “religious extremism”

The broad definition of terrorism, separatism and the vague references to religious extremism in Chinese law could potentially and practically lead to the criminalization of peaceful civic and religious expression and facilitate the criminal profiling of ethnic and ethno-religious minorities including, in particular, the Muslim Uyghurs, Buddhist Tibetans and Mongolians.

Under the Criminal Law of the PRC, the crimes of “endangering national security”, “splitting the State or undermining the unity of the country” (Article 103) and “subverting the State power or overthrowing the socialist system” (Article 105) have been used and abused in various cases. The newly amended Counter-Terrorism Law of 2018⁸ and the Religious Affairs Regulations that came into effect on 1 February 2018⁹ reflect the state’s emphasis on using ambiguously defined notions of “state security”, “religious extremism”, and “terrorism” to attempt to link religious activities to politically-charged crimes. The following leading cases will further explain the risks.

Mr. Tashi Wangchuk is a Tibetan advocate for Tibetan language education in schools in Tibetan areas where Mandarin has become the sole language of instruction.¹⁰ He was arrested in January 2016 for participating in the New York Times’ documentary “A Tibetan’s Journey for Justice”, in which he appealed for education in the Tibetan minority language and for the right of Tibetan people to partake in their cultural life. On 22 May 2018, the Intermediate Court in Yushu, Qinghai province found him guilty of “incitement to separatism” and sentenced him to five years in prison. Six UN human rights experts condemned this sentence as unjustified.¹¹

In addition to this case, in its 2018 observations, the CERD expressed its concerns that Tibetan language teaching in schools in the Tibet Autonomous Region had not been placed on an equal footing in either law, policy or practice with Chinese, and that it had been significantly restricted.¹² Banning of the Uyghur language in schools in Xinjiang,¹³ and a significant reduction in the availability of Mongolian-language public schooling in Inner Mongolia Autonomous Region are of further concern.¹⁴

Mr. Ilham Tohti, an Uyghur scholar, used to serve as a Professor of Economics at the Minzu University of China. He founded the website Uyghur Online in 2006, which was designed to promote understanding between Uyghurs and Han Chinese. He was frequently harassed by the Chinese authorities for his outspoken views on Uyghur rights and, in 2014, he was sentenced to life imprisonment on charges of “splitting the State or undermining the unity of the country”.¹⁵ His commitment to improving human rights is recognized worldwide. The international community is voicing ongoing concerns about his health¹⁶ and making efforts to obtain his freedom.¹⁷ In January 2019, on the five-year anniversary of his arrest, civil society and scholars called for China to grant his immediate release and to heed calls for the release of an untold number of Uyghur scholars currently detained.¹⁸

State measures on counter terrorism or religious extremism in Xingjiang Michelle Bachelet, UN High Commissioner for Human Rights expressed that she was “deeply disturbed” by the widely reported allegations of  mass detentions of Muslim Uyghur minorities in so called re-education camps in Xinjiang during her opening statement at the 39^th session of the HRC on 10 September 2018.19 The international community is appealing for investigations into these alleged arbitrary detentions, restrictions on religious practice, and “forced political indoctrination” in a mass security clampdown.²⁰

China called for respect for its sovereignty and urged the international community not to listen to what it termed “one-sided information”. It also said that although security measures in Xinjiang were necessary to combat “extremism and terrorism”, they did not target specific ethnic groups or restrict religious freedoms. In September 2018, both the Xinjiang Uyghur Autonomous Region Regulation on De-extremification (2017)21 and the Xinjiang Uyghur Autonomous Region Implementation Measures on Counter-Terrorism Law (2016) were amended by regional legislative bodies to provide a legal basis on which to establish an “education and training center” so that existing security measures could be justified.22

The CERD’s concluding observations on the situation of Muslim Uyghur minorities highlight the lack of data on persons in detention and the reasons for their detention; the mass surveillance of Uyghurs; restrictions on travel for religious purposes; and restrictions on the safety of Uyghurs who have been forced to return to China.

Land rights

Many sources report that large numbers of farmers and nomadic herders in the regional national autonomous areas have lost their traditional lands and livelihoods owing to hydropower or extractive industry development, infrastructure construction, ecological restoration and through the application of poverty alleviation measures that required the relocation of minority nationalities in 2018.

Hydropower resettlement

During the 13^th Five-Year Plan (2016-2020), Southwest China became the major “hydropower hub” being prioritized for development.²³ Giant hydropower projects have been constructed in some of China’s most biologically primeval and culturally diverse river basins where indigenous peoples live. The mountains and water in this area are spiritually linked to the local communities and form the material basis of indigenous peoples’ distinctive way of life. Reports on protests over the relocation of these peoples have been fragmented and statistics are not available. During the 12^th Five-Year Plan (2011-2015), according to official documents, an estimated 400,000 persons were relocated.²⁴ The real number of affected and relocated communities may be higher. 

Relocating nomads

Some 1,102 Tibetan herders from two villages in Nyima county located at an average altitude of over 5,000 meters were relocated to Doilungdepen county in Lhasa, more than 1,000 kilometers away from their original herding area in June 2018.²⁵ While Xinhua News reported that this was for their own good and for the protection of wild animals, the International Campaign for Tibet saw it as a denial of the herders’ fundamental rights. They argued that it was the state’s various development initiatives and not nomadic Tibetans that were the greatest threat to Tibet’s fragile ecology.²⁶

The CERD is concerned that compensation for expropriated property is often insufficient to maintain an adequate standard of living. This affects not only Tibetans but Mongolians too. Despite an official policy of voluntary resettlement, the CERD is concerned that, in practice, informed consent is not consistently obtained. It recommends that Chinese authorities work closely and effectively with ethnic minority government officials and communities to provide financial allowances that ensure an adequate standard of living, as well as livelihood restoration measures and, where needed, linguistic and cultural integration assistance.²⁷ 

Accessing traditional lands

For decades, state authorities have continuously promoted the sedentarization of minority nationalities with distinctive ways of life such as hunting, reindeer herding, nomadic herding or mountain farming, as a way of ensuring their modernization and development. In addition to the more recent implementation of nomadic settlement plans in Tibet, Xingjiang and Inner Mongolia, the previous forceful resettlements or banning of hunting activities of other peoples, such as the Oroqin hunters²⁸ and the Ewenki reindeer herders,²⁹ have created difficulties for them in terms of accessing their traditional forest lands and continuing their ways of life.

Large-scale infrastructure projects and extractive industry operations in minority nationalities’ homelands result in violations of the affected peoples’ land rights and other economic social and cultural rights.³⁰ In March 2018, a Tibetan man was detained in the northern part of Driru County in Nagchu Prefecture after opposing a mining project on the sacred mountain of Serra Dzagen.³¹ 

Access to justice 

Indigenous human rights defenders face major obstacles in accessing justice in China, for the following reasons:

Lack of recognition, information and remedy: The state does not recognize the existence of indigenous peoples in China and denies the relevance of all UN instruments on indigenous peoples. This makes claiming indigenous peoples’ rights difficult.

More than 640,000 people belong to “unidentified nationalities”, according to the 2010 national census. These people neither belong to the Han majority nor one of the 55 recognized minority nationalities. This means they have no right to establish their own autonomous area, and they encounter difficulties in obtaining political representation and special measures. This is not a new phenomenon as their subjective identification as independent and distinctive groups in law has long been denied.

The state’s reports to the UN treaty bodies normally lack comprehensive statistics, surveys, administrative records or registers of acts of racial discrimination and related administrative and civil complaints, investigations, procedures and sanctions. Other sources report that ethnic Uyghurs, Mongolians and Tibetans face discrimination in recruitment processes, and this is of concern to the CERD. China’s regional unemployment and poverty rate statistics are not disaggregated by ethnicity, however, and there is a lack of information on state investigations into racially discriminatory practices.³²

China’s National Human Rights Action Plan (2016–2020) is committed to a “people-centered development approach”. However, in the 2018 CERD review, the CPC provided information showing that acute poverty remained widespread throughout the regional national autonomous areas. In its response, the CERD highlighted that China should include human rights in its people-centered approach to development. It pointed, in particular, to meaningful consultations with minority nationalities before and during poverty alleviation projects, increased measures to reduce the high levels of poverty and the reduced inequality among them.³³

Dechen Shingdrup is a major annual religious prayer event held at the Tibetan Buddhist Larung Gar Institute and this year it fell on 27 October. This festival attracts Tibetan devotees from across the Tibetan plateau and has become a very popular mass prayer gathering. On 16 October 2018, the festival was banned for the third consecutive year despite local Tibetans and devotees appealing to the authorities that the festival was lawful, in accordance with freedom of religion.

Striving to access the UN mechanism: Mr. Dolkun Isa, president of the World Uyghur Congress, and a member of the Society for Threatened Peoples (STP), received accreditation through this NGO to attend the annual UN Permanent Forum on Indigenous Issues (UNPFII) in New York from 16-27 April 2018. UN diplomatic security stopped him from entering UN headquarters on 17 April, however, based on unspecified “security concerns”. The Chinese government has, for many years, accused Mr. Isa of being a “terrorist” but has failed to produce any substantiated evidence.³⁴ Finally, on 25 April, Mr. Isa finally gained entry to the UN building so that he could participate in the last three days of the UNPFII session. In May 2018, China tried to call for withdrawal of STP’s consultative status in relation to its accreditation of Mr. Isa.³⁵

Despite shrinking space for expression, in 2018 Mongols continued to try and access justice by registering the “South Mongolia Genocide Incident” in the UNESCO Memory of the World Programme.³⁶ There have been some 153 self-immolation cases among Tibetans since February 2009. The most recent was that of Tsekho Tugchak who died on 7 March 2018 in Ngaba, Sichuan Province.³⁷ 

Role of civil society

The implementation of new legislation, such as the Law on the Administration of Activities of Overseas Non-governmental Organizations in the Mainland of China (2016)³⁸ and the Charity Law (2016),³⁹ has meant that many civil society and charitable organizations have been unable to register, or re-register, as required in order to operate in mainland China. The CERD expressed concern in 2018 that the number of NGOs in China had decreased tremendously in the past few years, and that no organizations working to combat racial discrimination were registered.⁴⁰

Notes and References

1. The Constitutional Amendment, see The National Peoples Congress at http://bit.ly/2SYLn3y
2. See Xinhuanet at http://bit.ly/2SUFZyx
3. See cn at http://bit.ly/2T0gPyr
4. For example, the application of Administrative Litigation Law of the People’s Republic of China adopted 1989 and amended
5. China Review 31st Session of Universal Periodic Review, 6 Nov 2018 see http://bit.ly/2SWTcXw
6. Committee on the Elimination of Racial Discrimination, Concluding observations, 19 September 2018, CERD/C/CHN/CO/14-17
7. The Geneva Human Rights Forum – 2018-11-03, http://southmongolia.org/en/277/
8. The 2018 Amendment to the Counter-Terrorism Law (2015 adopted), see NPC at http://bit.ly/2T0WDMW
9. See cn at http://bit.ly/2SZ6Au1
10. See Free Tibetan Heroes at http://bit.ly/2SUwejO
11. These UN experts include Special Rapporteurs on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, in the field of cultural rights, on minority issues, of the Working Group on Arbitrary Detention, on the situation of human rights defenders, on the promotion and protection of the right to freedom of opinion and expression. See “China: UN human rights experts condemn 5-year jail term for Tibetan activist”, UNHRC at http://bit.ly/2SUKWY7
12. Committee on the Elimination of Racial Discrimination, Concluding observations on the combined 14th to 17th periodic reviews of China (including Hong Kong, China and Macao, China), 43, CERD/C/CHN/CO/14-17.
13. Ibid, para. 41
14. Ibid, para. 44
15. See China Court at http://bit.ly/2T0WQjc; See the judgement at VOA news http://bit.ly/2SXFfbF
16. We Shouldn’t Allow Ilham Tohti to Become a Second Liu Xiaobo’, 27 July 2018, See RFA at http://bit.ly/2T1I6jZ
17. See World Uyghur Congress at http://bit.ly/2SZbuqV
18. See World Uyghur Congress at http://bit.ly/2SXELSV
19. See UNHRC at http://bit.ly/2SXxx1f
20. Committee on the Elimination of Racial Discrimination, Concluding observations, CERD/C/CHN/CO/14-17, 40-42
21. See People.cn at http://bit.ly/2SUDaNX
22. See XJPCSC at http://bit.ly/2SULz3V
23. These plans in the central authorities mainly include the Outline of the 13th Five-Year Plan on National Eco-nomic and Social Development, the 13th Five-Year Plan on Energy Development, the 13th Five-Year Plan on Renewable Energy Development, and the 13th Five-Year Plan on Hydroelectricity Development. There are a series of corresponding plans in the local authorities as well.

24. The 12th Five-Year Plan on Hydropower Development, Bureau of Energy, 2012
25. Zhang Jingping report, See People.cn at http://bit.ly/2SXFun5
26. International Campaign for Tibet, Mass migration program highlights contested nomads’ resettlement policies in Tibet, see savetibet at http://bit.ly/2SUwAHa
27. CERD/C/CHN/CO/14-17, para. 26-27.
28. & Zhou (2009). Hunting-Prohibition in the Hunters’ Autonomous Area: Legal Rights of Oroqen People and the Implementation of Regional National Autonomy Law. International Journal on Minority and Group Rights.
29. Kolås & Xie (2015) Reclaiming the Forest. the Ewenki Reindeer Herders of Aoluguya, Berghahn.
30. Joint submission report by: International Federation for Human Rights (FIDH), (France); and International Campaign for Tibet, (USA), para. 3. See http://bit.ly/2SWX1fk
31. Tibetan Man Detained After Villagers Protest Chinese Mine Plans, Radio Free Asia, March 20,
32. CERD/C/CHN/CO/14-17, 47.
33. Ibid, para. 18-19.
34. In February 2018, Interpol removed a longstanding China-initiated red notice (i.e., an international alert) against Isa.
35. Andrea Worden, 10 July 2018, China Fails in its Gambit to Use the UN NGO Committee to Silence the Society for Threatened Peoples and Uyghur Activist Dolkun Isa, See http://bit.ly/2Tb9HiZ
36. See Southern Mongolia Congress at http://bit.ly/2T2ewe8 

37. Tibetan man dies after self-immolation; oppressive measures intensified in March 10 anniversary week, International Campaign for Tibet, 7 March
38. See The Ministry of Public Security at http://bit.ly/2SXyxm1
39. See The National People’s Congress at http://bit.ly/2SRQz9x
40. CERD/C/CHN/CO/14-17, 33.

Author: Due to the sensitivity of some of the issues covered in this article, the author prefers to remain anonymous.