Home > PUBLICATIONS & RESOURCES > JOURNAL >

On the Key Work of Ethnic Minority Rights Protection in China: Based on the Reports on the Work of the State council
May 04,2017   By:CSHRS

On the Key Work of Ethnic Minority Rights Protection in China: Based on the Reports on the Work of the State council

TANG Yong*

Abstract: The Reports on the Work of the Government has some features, such as official authority, annual continuity and focusing content, so it can be explained as major textual basis on which to define the key work of ethnic minority rights protection. At the present stage, the key work is to realize economic and cultural rights by insisting on and perfecting the system of regional national autonomy with the aim of realizing the right to development. According to the 13th Five-Year Plan, it is necessary to protect economic rights in the regional development framework, the cultural rights in national communication and the right of autonomy under the rule of law.

Keywords: Ethnic Minority,  Rights Protection, The Reports on the Work of the Government

In September, 2016, based on summarizing the execution and implementation experience of the first two National Human Rights Action Plans of China, The Information Office of the State Council released National Human Rights Action Plan of China (2016-2020), determining the new goals and tasks of national human rights in the new period. The new National Human Rights Action Plan of China paid more attention to ethnic minority rights protection, and proposed that the state would prioritize the development of ethnic minorities and ethnic-minority areas, respecting and protecting the rights of ethnic minorities.1 The corresponding statement in National Human Rights Action Plan of China (2009-2010) was “ In China, all ethnic groups are equal, and the state protects the lawful rights and interests of ethnic minorities”2 The corresponding statement in National Human Rights Action Plan of China (2012-2015) was “China is a unified multi-ethnic country, where all ethnic groups are equal, and the state protects the lawful rights and interests of ethnic minorities”3 In fact, as a comprehensive category system covering specific rights and power, ethnic minority rights are greatly different in cognition among scholars, subjects and even countries. For example, the liberalism and communitarianism abroad entered into groundless arguments on whether the ethnic minority rights are the rights of individual with ethnic attributes, or the rights of ethnic groups. It is key points in ethnic work and human rights cause in the new normal of the rule of law to reveal the loopholes of realizing ethnic minority rights and establish the core of rights protection .

I. The Statement of Ethnic Affairs in The Report on the Work of the Government

During the practice of adopting Marxist national theory in China, the national policy with Chinese characteristics has always attached great importance to the fundamental realities of multi-ethnic country, and kept a record of a large number of ethnic minority rights protection in the Party’s and the state’s history files. For instance, during the Sixth Plenary Session of the Sixth Central Committee of CCP in October, 1938, Mao Zedong pointed out in the report of On the New Stage that the Mongol nationality, Hui nationality, Tibetan nationality, Miao nationality, Yao nationality and other nationalities are allowed to have equal rights with the Han nationality, manage their own affairs under the common principle against Japan, and establish a unified country with the Han nationality.4 Common Program of the Chinese People's Political Consultative Conference and the Constitution (enacted in 1954) stipulated the national equality, national unity and regional autonomy of ethnic minorities in the form of fundamental law, which laid a constitutional foundation for management of national affairs and national rights protection; whilst the Constitution (enacted in 1982) further confirmed in the preface that “ socialist ethnic relationships of equality, unity and mutual assistance have been established”. Even to this day, while reviewing the achievement of the practice on ethnic minority rights, we shall re-examine the problems and weaknesses in the practice of ethnic minority rights protection since the reform and opening up, especially after the principle that “The state respects and safeguards human rights” was established as the constitutional principle in Amendments to the Constitution in 2014.

There are three reasons for this thesis making The Report on the Work of the Government as the entry point: Firstly, the Report on the Work of the Government has formal authority. As a human right, the ethnic minority human rights’ subject of duty covers all the social subjects including ethnic minority individuals themselves, but of which the State (government) shall bear the most important obligations. The Report on the Work of the Government is the concrete embodiment for the State Council to be responsible for the National People’s Congress and report, which is not only a review of the work for the previous year, but also the arrangement and deployment for the current year, reflecting the government’s program of action in promoting the cause of human rights. Besides, through the approval of The National People's Congress and the suggestions of the members of the National Committee of CPPCC, the Report on the Work of the Government has legal effects after voting. Second, the Report on the Work of the Government has annual continuity. The Report on the Work of the Government is the annual continuity file, following the same procedure from drawing up and asking for opinions to consideration and vote. Thus, its records have longitudinally historical comparability. We could track the changes that the government concerns by analyzing the Report on the Work of the Government, and then conclude the enforcement of the ethnic minority rights protection. Third, the Report on the Work of the Government has focusing content. Although covering all aspects of the national economy and social development and striving to be comprehensive and objective, the Report on the Work of the Government, as the program deployed by the central government, shall highlight the key issues and key work with pertinence and easily find the core of the ethnic minority rights protection, rather than cover all the bases. This thesis collected the Reports on the Work of the Government from 2002 to 2016, and sorted out the key words of the ethnic minority through China Daily over the years and the separate editions, tutoring readers or learning readers published by People’s Publishing House.

Viewed from the details presented by the Report on the Work of the Government in the past fifteen years, the government ethnic affairs was usually delivered in a sentence of strengthening ethnic work in the part of “a review of the work” and no longer repeated in recent years. In fact, against the background of the national economy and social development, the enforcement of ethnic minority rights presents a great stance as a whole. In the part of “this year's work schedule”, the Report on the Work of the Government usually deploys the ethnic affairs in the way of dispersion and specific treatises: It is stipulated that we shall increase the support for ethnic minority areas in regional economy development strategy, support the education of ethnic minority or minority areas in education development program, and support the development of the folk medicines of ethnic minorities. In addition, the Reports on the Work of the Government over the years set specific paragraphs to stipulate minority affairs and religious affairs, consolidate and develop equality, unity and mutual assistance and harmony of socialistic ethnic relationship on the basis of the unified multi-ethnic country. Ethnic unity and ethnic development are the keywords appearing over the years. Regional autonomy system is a fundamental political system, and it is the statutory remit of the State Council to carry out the Law on Regional Ethnic Autonomy. The ethnic minority culture protection has become a new topic in recent years, which is interlocked with the enactment and implementation of Intangible Cultural Heritage Law. It is only mentioned for few times about striking the crimes of regional separatists. After America’s “9?11 event” in 2001, the then Foreign Minister Tang Jiaxuan indicated in the general debate of United Nations General Assembly that striking terrorist force and regional separatists were the general position of China, “Terrorism is a tiny fringe of extreme evils, representing neither any ethnic group nor any religion. Therefore, they shall not be lumped together”, and also thought that opposing Eastern Turkistan is of great importance in the international counter-terrorism struggle.5 Shanghai Cooperation Organization signed Shanghai Communiqué on Combating Terrorism, Separatism and Extremism, and put forward cracking down on “three forces” in the Report on the Work of the Government for two years in a row. Because of the “Urumqi riot on July 5, 2009”, the Report on the Work of the Government (2010) proposed that we shall be opposed to the attempts to split the nation and safeguard national unity.

II. The Interpretation of the Ethnic Minority Rights Protection in The Report on the Work of the Government

There are few times for “ethnic minority rights” appearing in The Reports on the Work of the Government over the years, but the arrangement and deployment of ethnic affairs is to guarantee and implement ethnic minority rights by carrying out ethnic work. According to the above mentioned, at the present stage, the key work is to realize economic and cultural rights by insisting on and perfecting the system of regional ethnic autonomy with the aim of realizing the right to development.

A. Realizing economic and cultural rights of ethnic minority is an important grasp of ethnic affairs

Firstly, it is the realistic basis of establishing equal ethnic relations to protect economic and cultural rights of ethnic minority. The equality of socialistic ethnic relationship is reflected in “Recognizing and adhering to the full equality of all ethnic groups in all aspects of social life, that is, the full equality is not only at the political level, but also at the economic level and cultural level”.6 At the present stage, the ethnic equality at the political level and especially the “non-discrimination” principle in public law have been established, the individual of ethnic minorities and the collective of ethnic minority groups are respectively protected in the constitution through “equality before the law” in citizens’ equality norms and “all ethnic groups being equal” in ethnic minorities’ equality norms. However, due to the historical, geographical, cultural and habitual differences, the equality in economic and cultural aspects between ethnic minorities and between minorities and Han nationality has not yet been fully realized. In consequence, it is important for achieving ethnic equality to realize economic and cultural cause.

Second, it is the powerful weapon of cracking down ethnic separatist activities to protect economic and cultural rights of ethnic minority. It is the punitive measures afterwards to crack down ethnic separatist activities in accordance with the system of criminal law, while it is the preventive measures in advance for constraining the spread of ethnic separatist ideas to improve economic and cultural living standards of ethnic minorities. The improvement of economic and cultural living standards of ethnic minorities, especially the full-employment and assigned social security, will strengthen the ethnic minorities’ national identity, promote ethnic unity and resist the infiltration of the forces of ethnic separatism.

Third, it is always the weakness of our national work to protect economic and cultural rights of ethnic minority. Whether in the west region development strategy or in the regional coordinating development strategy, it is always the theme of The Report on the Work of the Government to intensify the development and support of former revolutionary base areas, which shows that in the aspects of national economy and social development, the economic construction is always vulnerable, and cultural development of underdeveloped areas could not be enhanced simultaneously. Seeing from the aspect of overcoming the shortcoming, to improve and realise the economic and cultural rights are the key points of China’s national matters.

B. The right to life and the right to development are the primary human rights

The formation of the term “the right to development” is closely related to the nationality. In 1972, the Spanish international human rights jurist Juan Antonio Carrillo Salcedo wrote that “The right to development is not only a human right, but also a right of nationality. It is concluded that everyone and every nationality shall promote the common goal of all mankind indiscriminately. The right to life and the right to development are understood as growth and change, which constitutes the revolutionary direction in the old structure of public international law, and becomes freer and more human in the process of socialization and democratization.”7 The definition of the right to development is formed on the basis of the different development of different subjects, aiming at eliminating differences through the realization of rights and thereby sharing the achievements in the progress of human civilization. In a word, the right to development is the right concerning equality of development opportunity and pooling of development interests.8 For the practice of minority rights, ethnic equality not only pursues the static equality, but also emphasizes the equality of development process and especially the development results. For example, the life expectancy at birth in Shanghai is 80.26 years old, while in Tibet Autonomous Region 68.17 years old.9 If for some reason, the life expectancy in Shanghai tends to decline but Tibet’s stays the same, then the gap of development indicator between the two places tends to disappear. Nonetheless, the seeming equality doesn't mean that the trend is likely to accept. Thus, ethnic equality is based on ethnic development, and help ethnic minorities and ethnic regions equally participate in development and fairly share the achievements of development by means of the different financial support in ethnic regions, the allocation of resources to the weak areas and developed regions assisting and stimulating underdeveloped regions, etc. It is explained that the goal of ethnic minority rights protection is “to ensure that people equally participate and develop rights, safeguard social fairness and justice, and score new achievements in which every kid is in school, everyone has work to do, everyone has a roof over the head, the sick are treated and the elderly are taken care of” and “to fairly share more benefits of development to all the people” in ethnic matters.10

C. The system of regional national autonomy is of great importance to protect ethnic minority rights

Among basic political systems created by the Constitution, the system of regional national autonomy is designed for the conditions of the multi-ethnic country. If the multi-ethnic country is to achieve national equality, firstly it shall give citizens of all nationalities the equal right to participate in politics, then set an organization of a collective voice possessed by the minority in power structure, and at last, when the aforementioned organization is not working and is in humanitarian crisis, the international community would relieve and assist in accordance with international law.11 In a federal state, “federalism has the special function to give ethnic minority the right of autonomy.”12 In dealing with ethnic (or racial) issues, liberalism constitutes the kernel of autonomy and federalism constitutes the shell of the autonomy. Local self-governance and social self-governance constitute the main ways of political life. Switzerland is known as the most successful national federalism and the nations fulfill the national autonomy adequately. In unitary state, the national autonomy commonly exists. For instance, the Irish, as a nation, enjoy the right of autonomy in Britain in accordance with the Northern Ireland Law. Chinese system of regional national autonomy is based on the combination of the national autonomy and regional autonomy. The combination of the national autonomy and regional autonomy makes the nationalities of human settlement enjoy the right of autonomy, so do the nationalities living together. Minority nationals take the posts of chairmen of the autonomous regions, commissioners of the autonomous prefectures and the autonomous counties magistrates, which shows that autonomous regions are not the simple local autonomy but including the national elements. In this sense, China’s ethnic minority rights protection is not only the individual support model on the basis of ethnic belonging, but also the regional development and construction model on account of minority areas. The development and implementation of ethnic minority rights protection shall be supported by regional national autonomy, and promote gradually in the process of upholding and improving the system of regional national autonomy.

III. The Ethnic Minority Rights Protection in the Period of the 13th Five Year Plan

It is conducive to hold the fundamental condition of realizing the ethnic minority rights protection in accordance with the interpretation of the Reports on the Work of the Government in the late 15 years. The economy field is the weakness. Educational and cultural field shall change the emphases. National autonomy shall innovate systems in different levels finally to be unified in realizing the right to development of ethnic minority. This thesis argues that the focal point of the ethnic minority rights protection during the 13th Five Year Plan period shall lie in the following three aspects.

A. Protecting economic rights in the regional development framework

The intertexture of national economy and regional economy is co-determined by the regional features of ethnic distribution and the political design of the system of regional national autonomy. Therefore, we could not be out of the framework of optimizing the regional development pattern to protecting economic rights of ethnic minority. Since the implementation of the west development strategy in 2000, the regional development presents the domestic field and international field.

Firstly, the domestic field manifests the three-level pattern as developed areas, underdeveloped areas and former revolutionary base areas. The emphasis of protecting economic rights of ethnic minority in developed areas lies in urban ethnic minorities. In China, there are about a third of the minority population living in cities, and there are more than 20 cities covering 56 ethnic groups. How to “let the cities better accept ethnic minorities and let the ethnic minorities better incorporate into the cities” concerns the overall situation of national work and city work. The prerequisite for ethnic minorities incorporating into the cities and the model sample of the national urbanization is to enjoy the equal rights of employment and entrepreneurial opportunities in some urban agglomerations of developed areas such as Yangtze river delta area, Pearl river delta, and Beijing-Tianjin-Hebei region, etc. In underdeveloped areas, it is difficult for ethnic minorities themselves to realize the economic great-leap-forward development. Thus, the work centrality is the differentiation of policy support. “Because of the divergence of ethnic composition, natural environment, historical accumulation and so on, the differences between city and countryside, pastoral areas and agricultural areas, and settlement and scattered areas require that the supportive polices be targeted and accurate. ”13 In former revolutionary base areas, the dilemma easily appearing is that “Each place could not have its own way of supporting its own inhabitants.” In that way, poverty alleviation and relocation is the effective means to protect the realization of the economic rights of ethnic minority. In the course of implementation, we shall respect the wishes of the ethnic minorities themselves and provide the protection no less than immigration areas in housing, social security and employment.

Second, in international field, Chinese regional development layout is no longer confined to the boundary of the national territory. Instead, China creates new economic growth point through bilateral development, multinational collaboration, etc. “The Belt and Road” is the typical transnational regional development pattern. The minority areas are at the periphery of national territory, but in the forefront of opening up in the program of “the Belt and Road”. There are almost 19000 km of China’s 22000 km land border in minority areas 22000 km land border, and there are 109 in minority areas of 138 frontier counties (regions or cities). The infrastructure construction such as airports, railways, highways, energy, water conservancy, communication, etc line minority areas of “the Belt and Road” lays a material foundation for the realization of economic rights. In addition, the construction of communication platform such as exposition, free trade zones, financial balance centers, border trading ports, etc offers development opportunities. During the development process, “We try out to make compensation for indigenous peoples through providing collective equity for those who develop hydroelectric power and mineral resources occupying collective lands in order to explore the assets income support system for the impoverished.”14
 
B. Protecting the cultural rights in national communication

There was a special mention of the theme of intercourse between ethnic groups in the Report on the Work of the Government (2015) and the Report on the Work of the Government (2016). “To deepen the creating activities of national unity and progress, propel the embedded construction of social structure and community environment for all nationalities, and promote the communication and blend.”15 The pattern of diversity in unity of the Chinese nation make all nationalities exchange of needed goods and contribute to heritage of civilization, which strengthens the ethnic identity. All ethnic groups intermingle with each other and unify as the Chinese nation, which strengthens the national identity. Thus, intercourse between ethnic groups includes not only the economic interchange using the resource, products and service trade as the carrier, but also the cultural exchange between the ethnic minorities, and ethnic minorities and the Han nationality. During the period of 13th Five Year Plan, we shall not ignore the cultural rights in protecting ethnic minority rights. The cultural rights shall at least include the right to education, the participation right of cultural life, the right of enjoying the achievement of scientific and technological progress, etc in accordance with the indication of United Nations’ International Covenant on Economic, Social and Cultural Rights.

Firstly, in the aspect of the right to education, the focus of the Report on the Work of the Government changes from the popularization of compulsory education (e.g. in the year of 2002) to equity development in the field of education (e.g. in the year of 2015). The ethnic education shall broaden the types such as bilingual education, vocational education, higher education, etc, especially focusing on training the applicable talents. For example, bilingual judges, cultivated in the field of bilingual education and vocational education, could serve the administration of justice in ethnic minority areas and protect the litigation rights of ethnic minorities using native languages.

Second, in the aspect of the participation right of cultural life, the unique language and culture of ethnic minorities is the sign of ethnic identification and the symbol of national identity. There are three levels to protect cultural rights: In the respect level, we shall respect the ethnic culture and inherit and develop in accordance with their own law of development. In protection level, we shall prevent man-made destruction and protect the aggrieved cultural rights and interests judicial methods. In promotion level, we shall support the development of ethnic culture and preserve and prosper the culture through capital investment, project support, academic research, etc. Besides, the protection of intangible cultural heritage of ethnic minorities is also the ingredient of protecting cultural rights.

Third, in the aspect of the right of enjoying the achievement of scientific and technological progress, the Declaration on the Right to Development of the United Nations stresses that “People should be the active participants and beneficiaries of the right to development.” It is the main content of national informatization and digitalization construction that the ethnic minorities shall enjoy the extension to the Midwest and even the border areas of the public service in the “Internet Plus” era dividend of the scientific and technological progress, the popularity of digital services, the promotion of online transactions, etc.

C. Protecting the right of autonomy under the rule of law

The rights-talk is constructed on the basis of the human dignity, whose implicit logical premise is that the free will and self-determined option of the mankind is worth cherishing and respecting. Then, in terms of the ethnic minorities, the autonomy shall be respected and protected on the premise of national unification and unity of ethnic minority. Hence, the work of ethnic minority rights protection during the period of 13thFive Year Plan shall better realize the right of autonomy of regional nationalities.

Firstly, to protect the right of autonomy in accordance with the rule of law. The integration construction under the rule of law, government by law and society ruled by law provides strategic support for the realization of right of autonomy. The scope of the right shall be defined by law, the exercise of the right shall be realized under the rule of law and the tort of the right shall be rectified in accordance with the law.

Second, to realize the right of autonomy through democracy. The right of autonomy embodies the general will of autonomous areas rather than the will of ethnic minorities themselves or the will of the leaders of autonomy authorities. The general will is formed by democratic procedures. In addition, the people’s congress of autonomous areas shall play an active role, become the combination and expression agencies of autonomous areas’ rights and interests, and especially improve the quality of national legislation through legislative hearing, soliciting opinions, examination and approval of the representatives, etc, during the procedure of establishing autonomous regulations, specific regulations and other regulating documents involved in ethnic affairs.

Third, to perfect the right of autonomy relying on innovation. In the framework of the Law on Regional National Autonomy, the autonomous areas shall be bold and innovative particularly in the fields of economy, society and culture, transfer the spirit of innovation and find out the development potentialities of minority regions during the process of the exercise of the right of autonomy. The Party Central Committee shall grant more autonomy and encourage the underdeveloped areas to explore the road of poverty alleviation by means of resource integration, project development, petty loan, etc. The practitioner of the petty loan Muhammad Yunus viewed that “If we give the poor the same or the similar opportunities as others’, they could lift themselves from poverty. The poor themselves would create a world without poverty. For this reason, the only thing we need to do is to break the chain that we put.”16 We shall confer rights to ethnic minorities in institution innovation.

                                       (translated by Sha lijin and Ning Xuan)

* TANG Yong (唐勇), a postdoctoral research fellow of China’s Institute of Applied Jurisprudence, the Supreme People's Court, and a lecturer of Law School, Zhejiang University of Finance and Economics.

1. The Information Office of the State Council:”National Human Rights Action Plan of China (2016-2020),” People's Daily, September 30, 2016.
2. People's Daily, April 14, 2009.
3. People's Daily, June 12, 2012.
4. United Front Work Department: The Document Collection of National Problems, 1991, The Press of Central Party School of the Communist Party of China, at 595.
5. He Hongze, Ding Gang:”An Overall Explanation on China’s Foreign Policy,” People's Daily , November 13, 2001.
6. Wu Shimin ed., Introduction to National Problems, People's Publishing House, 2011, at 245.
7. Héctor Gros Espiell,“The Right of Development as a Human Right,” 16 Texas International Law Journal (1981), at 193.
8. Wang Xigen, The Basic Human Right in Society Ruled by Law:the Legal System Research of the Right to Development, Chinese People's Public Security University Press, 2002, at 60.
9. Provincial Annual Data of the State Statistical Bureau, at http//data.stats.gov.cn/easyquery.htm?cn=E0103, last visited on Dec. 20, 2016.
10. Xi Jinping, Xi jinping Talking about Ruling State and Dealing with Politics, Foreign Languages Press, 2014, at 41.
11. Chen Jianyue, “Protecting the Ethnic Minority Rights In System and the Rule of Law—the Path and Experience of Chinese Regional National Autonomy,” Ethnic Study, No. 4 (2009).
12. Allen Liphart, Models of Democracy: Form of Government and Government Performance of the 36 Countries, translated by Chen Qi, Peking University Press, 2006, at 142.
13. Tang Yong, “Protecting Equal Right to Development and Promoting the Harmonious Development of Ethnic Minority,” China national news, April 15, 2016.
14. The editorial committee:The Tutoring Reader of the Central Committee of the Communist Party of China to Develop the 13th Five Year Plan for National Economy and Social Development, People's Publishing House,2015, at 45.
15. The Drawing Board of the State Council Research Office: The Tutoring Reader on the Report on the Work of the Government of the 4th Session of the 12th National People's Congress, People's Publishing House, 2016, at 37.
16. Yunus, Banker to the Poor, translated by Juliet Wu, Joint Publishing, 2006, at 218.