CHINA’S REGIONAL ETHNIC AUTONOMY LAW: DOES IT PROTECT MINORITY RIGHTS?

[House Hearing, 109 Congress]
[From the U.S. Government Printing Office]

http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg21045/html/CHRG-109hhrg21045.htm

CHINA’S REGIONAL ETHNIC AUTONOMY LAW: DOES IT PROTECT MINORITY RIGHTS?

=======================================================================

ROUNDTABLE

before the

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

__________

APRIL 11, 2005

__________

Printed for the use of the Congressional-Executive Commission on China

Available via the World Wide Web: http://www.cecc.gov

______

U.S. GOVERNMENT PRINTING OFFICE
21-045 WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

LEGISLATIVE BRANCH COMMISSIONERS

Senate House

CHUCK HAGEL, Nebraska, Chairman MEMBERS TO BE APPOINTED
SAM BROWNBACK, Kansas
GORDON SMITH, Oregon
JIM DeMINT, South Carolina
MEL MARTINEZ, Florida
MAX BAUCUS, Montana
CARL LEVIN, Michigan
DIANNE FEINSTEIN, California
BYRON DORGAN, North Dakota

EXECUTIVE BRANCH COMMISSIONERS

STEPHEN J. LAW, Department of Labor
PAULA DOBRIANSKY, Department of State
GRANT ALDONAS, Department of Commerce

David Dorman, Staff Director (Chairman)

John Foarde, Staff Director (Co-Chairman)

(ii)

C O N T E N T S

———-
Page

STATEMENTS

Phillips, David L., senior fellow and deputy director, Center for
Preventive Action, Council on Foreign Relations, and visiting
scholar, Harvard University, New York, NY…………………. 3
Atwood, Christopher P., associate professor, Department of
Central Eurasian Studies, Indiana University, Bloomington, IN.. 6
Bovingdon, Gardner, assistant professor, Department of Central
Eurasian Studies, Indiana University, Bloomington, IN………. 9

APPENDIX
Prepared Statements

Phillips, David L………………………………………… 30
Atwood, Christopher P…………………………………….. 44
Bovingdon, Gardner……………………………………….. 48

CHINA’S REGIONAL ETHNIC AUTONOMY LAW: DOES IT PROTECT MINORITY RIGHTS?

———-

MONDAY, APRIL 11, 2005

Congressional-Executive
Commission on China
Washington, DC.
The roundtable was convened, pursuant to notice, at 2 p.m.,
in room 2255, Rayburn House Office Building, John Foarde (staff
director) presiding.
Also present: Susan Roosevelt Weld, general counsel; Carl
Minzner, senior counsel; Katherine Kaup, special advisor for
minority nationality affairs; and Laura Mitchell, research
associate.
Mr. Foarde. Good afternoon, everyone. Let us get started.
It is such a beautiful spring day outside that I admire the
fortitude not only of our panelists, but also of all of you who
have come to listen to them this afternoon. I assume that we
will have a few more people attending in due course. But in any
case, we have prided ourselves over the last three and a half
years at getting started on time and ending on time, so we are
going to get busy.
I would like to welcome our three panelists, and everyone
in the audience, on behalf of Senator Chuck Hagel, the chairman
of the Congressional-Executive Commission on China, and the
members who have been appointed so far on the Senate side and
in the Administration.
We are gathered this afternoon to take a look at the
regional ethnic autonomy law, particularly with respect to
three distinct minority groups in China. The Chinese Government
recognizes over 100 million people living within its borders as
belonging to one of 55 minority nationalities. Although
minorities constitute less than 9 percent of China’s total
population, they occupy over 60 percent of the country’s total
landmass, primarily along international borders. Minority areas
are often located in resource-rich regions. More than 30 of the
groups have ethnic counterparts abroad, making the assurance of
their loyalty of strategic concern to the Chinese Government.
The Constitution and the 1984 Regional Ethnic Autonomy Law
guarantee numerous rights to minorities, including self-
government within designated autonomous areas; proportional
representation in the government; freedom to develop their own
languages, religions and cultures; and the power to adjust
central directives to local conditions. The laws also guarantee
minorities greater control over local economic development than
allowed in non-autonomous areas, the right to manage and
protect local natural resources and the right to organize local
public security forces to safeguard public order.
The implementation of the Regional Ethnic Autonomy Law has
varied greatly across China. The Chinese Government
systematically denies some minorities their legal rights and
arbitrarily arrests their members for exercising legally
protected freedoms. The government has particularly failed to
uphold the legal rights of minorities living in the Tibetan
Autonomous Region, the Xinjiang Uighur Autonomous Region, and
the Inner Mongolian Autonomous Region. So this afternoon we
want to look in depth at how the Regional Ethnic Autonomy Law
and its implementation affects people in Tibet, Xinjiang, and
Inner Mongolia.
To help us with that inquiry, we have three distinguished
panelists. I will introduce each in greater detail before they
speak. David Phillips, senior fellow at the Council on Foreign
Relations; Gardner Bovingdon, assistant professor, Department
of Central Eurasian Studies at Indiana University; and
Christopher Atwood, associate professor in the Department of
Central Eurasian Studies, also at Indiana University.
I would like to recognize, then, to start, David Phillips.
As I introduce him, let me say that, carrying on with the
practice we have had over the last three years or so, we will
ask each of our panelists to speak for 10 minutes. After about
eight minutes, I will tell you that you have two minutes
remaining, and that is your signal to wrap things up.
Inevitably, you will not reach all the points that you want to
make, and we will try to pick those up in the question and
answer session that will follow the formal presentations. We
will give each of our staff panel about five minutes to ask a
question and hear the answer, and we will do as many rounds as
we have time for until you are exhausted and cry “uncle” or
until 3:30 arrives, whichever is first.
So, let me introduce David Phillips. He is the project
director of a collaborative research project on “Legal
Standards and Autonomy Options for Minorities in China: the
Tibetan Case;” and he is deputy director of the Center for
Preventative Action at the Council on Foreign Relations. He is
currently a visiting scholar at Harvard University’s Center for
Middle East Studies, and director of the Program on Conflict
Prevention and Peace Building at American University’s Center
for Global Peace. In his alleged spare time, he has also been
an analyst for NBC News, and works today providing commentary
to the BBC. He has served as a senior advisor to the United
Nations Secretariat, and also to the U.S. Department of State.
Formerly the president of the Congressional Human Rights
Foundation, Mr. Phillips serves on numerous boards of
organizations concerned with human rights, humanitarian
affairs, peace, and conflict prevention.
Welcome, David Phillips. Thank you for sharing your
expertise with us this afternoon.

STATEMENT OF DAVID L. PHILLIPS, SENIOR FELLOW AND DEPUTY
DIRECTOR, CENTER FOR PREVENTIVE ACTION, COUNCIL ON FOREIGN
RELATIONS, AND VISITING SCHOLAR, HARVARD UNIVERSITY, NEW YORK,
NY

Mr. Phillips. Thank you, Mr. Foarde and members of the
staff panel. It is a great pleasure to be with you this
afternoon and to discuss the report that Mr. Ted Sorensen and I
authored, published at Harvard University’s Belfer Center for
Science in International Affairs, titled “Legal Standards and
Autonomy Options for Minorities in China: the Tibetan Case.” I
have also submitted for the record a copy of the report and a
compilation of 161 laws and regulations concerning autonomy
arrangements in the ethnic Tibetan areas of western China.
The focus of our work was on the five provinces of western
China, the Tibet Autonomous Region, and the provinces of
Sichuan, Yunnan, Gansu, and Qinghai. The report provides an
assessment of existing national, provincial, and prefectural-
level laws and regulations. It analyzes and outlines existing
international standards for treatment of minorities and
autonomy arrangements, offers a menu of autonomy options based
on international models, itemizes Chinese laws, and provides a
more complete description of 22 global autonomy arrangements.
During a trip to China in June 2004, we had extensive
contact with Chinese officials, think tank representatives, and
cadres involved in ethnic autonomy issues. Our discussions
focused on implementation of the existing body of law in China.
Having visited China a number of times over the past 12
years, I heard a dramatically different message on this visit
than previous visits. Chinese officials talked about the need
to “improve” the country’s legal system, “perfect”
arrangements for ethnic autonomy, “adapt” measures to local
conditions, and “conform” laws and regulations on minority
rights to international standards. I remember my first meetings
with the United Front’s Bureau Number 2, the office that deals
with ethnic Tibetan matters. Discussions were a one-way street.
In contrast, there was genuine discourse and an exchange of
views during our visit nine months ago.
Recent developments are important to note. They provide
political context for scholarly analysis as well as our
discussions here today. Chinese officials affirmed that their
contact with overseas Tibetans in Dharamsala proved that “This
method proves there is contact between the central government
and the Dalai Lama. The lines of communication are open.”
Tibetans also recognize that autonomy is the best and most
realistic way to preserve Tibetan culture. The Dalai Lama has
adhered to the “one-China line” with increasing clarity over
the years. In an important interview two weeks ago in the South
China Morning Post, he indicated: “I’m not in favor of
separation. Tibet is a part of the People’s Republic of China.
Tibetan culture and Buddhism are part of Chinese culture.” He
also recognized the “broader interest” of Tibetans,
suggesting that Tibetans would benefit from China by sharing in
its material wealth. His statements create an opportunity to
deepen discussions between representatives from Dharamsala and
Chinese officials, hopefully paving the way for the Dalai
Lama’s return to Lhasa in his spiritual and religious capacity.
In order to advance this goal, and responding to the
openness of Chinese officials to conform autonomy arrangements
with international standards, I would like to propose that, as
part of the bilateral dialogue between China and the United
States on human rights, that the U.S. Government propose the
establishment of an international study group on international
models of autonomy. The activities of the study group would
include exchange programs between Chinese and international
scholars, field research by Chinese officials to autonomous
areas in other countries, and the establishment of an academic
consortia providing policy and program information, as
requested by Chinese participants. It is envisioned that this
study group would be resourced by the U.S. Government; its
terms of reference would be jointly negotiated between U.S. and
Chinese officials; the study group could be established at a
university or a think tank in the United States, and it may
involve participation from European institutions or
institutions in the Asia-Pacific region. Suitable Chinese
counterpart institutions might include the State Ethnic Affairs
Commission, the Chinese Academy of Social Sciences, Chinese
Minorities University, and/or the Chinese Center for Tibetology
Research.
The report that you have, and which is entered into the
record, provides detailed information on Chinese laws and
regulations on matters concerning governance, economy, and
culture. It assesses laws and regulations that have been
adopted at the national level, the provincial level, and to the
greatest extent possible, at the prefectural levels. But for
the purpose of brevity, I will summarize the laws and
regulations concerning religion, which is the focus of
overtures from the overseas Tibetans to the Chinese Government.
Under a 1952 State Council decision, all minorities are to
enjoy, among other things, the same freedom of religion as is
enjoyed by Han people in the same locality. The State Ethnic
Affairs Commission requires that the observance of minority
holidays, dietary restrictions, and religious practices be
allowed.
The PRC Autonomy Law requires the autonomy agencies of
ethnic autonomy areas to guarantee the freedom of religion of
citizens of all ethnic groups. No state agency, social group,
or individual may force any citizen to adopt any beliefs or
disavow any religious beliefs and may not discriminate against
citizens who have religious beliefs and those who do not. The
state protects “normal” religious activities. However, no
person may use religion to destroy social order, damage the
health or well-being of citizens, or interfere with the state
education system. In addition, religious groups and
institutions may not accept support from “foreign forces.”
While the government respects and protects religious
freedom of citizens, all religious activities must be carried
out within the scope of the Constitution and in compliance with
all laws, regulations and policies of the Chinese Government.
All religious groups and places of religious activity and
individuals must accept the leadership of the Communist Party
of China, the government, and support the socialist system.
Religion or places of religious activity may not be used to
incite trouble, create havoc, or carry out criminal activities
such as separatism, steps to destroy the unity of ethnic
groups, or disturb social and public order. The approval of the
Central People’s Government is required for the rebuilding or
opening of all places of religious activity. Registered places
will receive legal protection. Places of religious activity are
to be managed by “patriotic religious groups,” whose members
must support the Party and socialism, be patriotic and law-
abiding, and who safeguard the unity of the state and ethnic
group.
The Interim Measures of the Tibet Autonomous Region on the
Administration of Religious Affairs set a quota and an
application system for monks and nuns. Applicants who wish to
become a monk or nun must, among other things, be patriotic and
law-abiding.
Propaganda and publishing departments are to control the
publication of documents that contain religious content so that
they conform to the religious policies of the Party or the
state. Approval from relevant departments is required to edit,
publish, or distribute religious materials, including video and
audio recording.
In Gansu Province, religious teachers may not proselytize
outside places of religious activity. Moreover, the activities
of self-proclaimed preachers are prohibited. No foreign
donations for proselytizing activities may be accepted by any
party. Major donations from foreign organizations or followers
require the approval of the Central People’s Government or the
Religious Affairs Bureau of the State Council.
Foreign personnel who go to Qinghai may not, without
approval, “broadcast” audio or videotapes of sermons by
foreign religious persons or distribute religious tracts.
The report that we have published is not a human rights
report; it is an assessment of Chinese law. There is clearly a
gap between the legislative intent of Chinese laws and
regulations and their
implementation.
Of significance, Chinese officials did not dispute the need
to move forward with both drafting and implementing laws in a
way that standardizes the approach in all of the ethnic Tibetan
areas of western China.
Thank you, Mr. Foarde.
[The prepared statement of Mr. Phillips appears in the
appendix.]
Mr. Foarde. Thank you very much, David Phillips, for
kicking off our conversation and raising a host of interesting
issues that we will take up during the question and answer
session.
Next, I would like to recognize Christopher P. Atwood,
associate professor from the Department of Central Eurasian
Studies at Indiana University in Bloomington, IN. He is
associate professor of Mongolian Studies, and he has published
extensively on Mongolia and Inner Mongolia. In his 2000 book,
“Young Mongols and Vigilantes in Inner Mongolia: Interregnum
Decades 1911-1931,” he used recently opened Mongolian archives
to explore early Chinese Communist Party nationality policy and
pan-Mongol activism. He is the author of the “Encyclopedia of
Mongolia and the Mongol Empire,” a comprehensive reference
work on the region. His research interests include Mongolian
nationalism, demography, and ecological immigration.
Welcome, Christopher Atwood.

STATEMENT OF CHRISTOPHER P. ATWOOD, ASSOCIATE PROFESSOR,
DEPARTMENT OF CENTRAL EURASIAN STUDIES, INDIANA UNIVERSITY,
BLOOMINGTON, IN

Mr. Atwood. Thank you, Mr. Foarde. I would, first, like to
express my appreciation for the opportunity to appear today
before this staff-led panel of the Congressional-Executive
Commission on China and present my perspective on the question
of “China’s Regional Autonomy Law: Does it Protect Minority
Rights? ” Rather than discuss the broad range of minority
rights issues in play in Inner Mongolia today, I would like to
focus on the issue of ecological migration, which illustrates
in a striking manner how the guarantees of autonomy in the
Regional Autonomy Law failed to provide sufficient protection
against massive state-directed dislocation of ethnic Mongol
communities in China.
The earliest versions of ecological migration were
pioneered in the early 1990s in Alashan district in far-western
Inner Mongolia under the moniker of “three-ways labor
restructuring.” Responding to ongoing severe desertification
and pasture degradation in Inner Mongolia’s driest district,
the Alashan authorities started with the basic premise that
excess population and livestock are at the root of pasture
degradation. Their “three-ways restructuring” plan envisioned
one-third of the current pastoral population continuing as
herders, one-third switching to arable cultivation, and one-
third entering township or urban enterprises.
In 2001, this basic idea was adopted by the Inner Mongolian
Government and renamed “ecological migration.” The vastly
expanded plan involved moving up to 650,000 persons out of
areas where grasslands are subject to severe degradation into
towns and other areas. Considerable sums are being assigned to
build housing and other infrastructure for the new migrants,
although whether these sums are adequate is controversial. In
most areas, it appears the relocations are not total, with a
small number of herders regarded as “rationally” managing
rangeland being allowed to stay.
Those relocated may return after five years if they, too,
can demonstrate an ability to manage the grasslands
“scientifically.” Thus, “ecological migration” accelerates
the trend to polarization in which a small number of relatively
well-off herders, whether ethnically Mongol or Chinese, who
have assimilated contemporary Chinese ideas of proper livestock
management will continue herding, while the poorer, less
sophisticated herders will be forced off the land.
Any evaluation of ecological migration must deal with the
undeniable ecological crisis in Inner Mongolia today and the
legacy of decades of over-reclamation and over-grazing. Massive
dust storms in Beijing have alerted the Chinese central
government to the seriousness of the situation. There exists a
consensus among outside observers that, while overstocking of
livestock, particularly sheep and goats, valued for their wool
and cashmere, is currently driving much pasture degradation,
historically, over-reclamation of marginal lands for farming
has damaged Inner Mongolian pastures the most. Although Inner
Mongolian policy in 1984 officially prohibited further
reclamation of pasture, the 2003 land use law in Inner Mongolia
appears to again encourage “wild-cast” land reclamation.
Economically, we can say that the bankruptcy of smaller-scale,
less capitalized producers and their replacement by larger
scale commercialized producers is an unfortunate, but
universal, aspect of economic development, although rarely so
explicitly directed by the government as in this case.
In terms of human rights, ecological migration raises
serious problems. On an individual level, we can ask, “Are
these transfers truly voluntary, as claimed? ” Reports are
contradictory. Yet, it would be naive to put too much stock in
the possibility that the implementation of such migration is
fully voluntary. Ecological migration is now government policy,
adopted without significant public input. Those slated for
migration are undoubtedly aware that resistance is futile.
I would like to dispose of a red herring immediately.
Ecological migration is often cast as a conflict of purely
traditional Mongols, seen as stubbornly attached to rural life
and pastoral nomadism for cultural reasons, and Han Chinese
practicing innovative, high-productivity land use. In reality,
however, the Mongols of Inner Mongolia are highly educated,
with strong aspirations to success in modern sectors. In fact,
their literacy rate is slightly higher than that of the Han
Chinese in Inner Mongolia, and they are over-represented in the
ranks of cadres there. Pastoralists in Inner Mongolia are more
commercialized and have a higher income than farmers. For
better or for worse, Mongolian herders have been quite willing
to adopt the new, intensive managerial strategies of herding.
At the same time, the contention that this managerial herding
will be less harmful to the steppe than nomadic pastoralism is
quite dubious, scientifically. In fact, increasing, not
decreasing, mobility may be the key to saving the grasslands.
What is beyond doubt is the almost 20 years of state-directed
and scientifically managed programs to alleviate grasslands
degradations have not worked, and indeed may be accelerating
desertification. The minority rights issue, thus, is not
modernization versus tradition, but ensuring that the Mongols
have meaningful voice in the nature of the modernization of
their own communities. Thus, ecological migration remains an
ethnic issue. Although Han Chinese herders and farmers in
affected areas are also being deported, the Mongols remain the
predominant population group in the arid regions of Inner
Mongolia slated for population removal, and hence are being
disproportionately influenced by ecological migration. These
arid grasslands constitute the heartlands of ethnic Mongol life
where they are the local majority and dominate the community.
Until 2001, Mongolian language, social standards, and culture
still formed the norm in these remote areas to which the
immigrant Han partially conformed.
Ecological migration is breaking up many, if not most, of
these last redoubts of Mongol community life in Inner Mongolia.
In their new environment, the resettled migrants will often
lack proper skills and aptitudes for their new occupations.
Indeed, by moving the least “managerial” or least successful
herders, the authorities are choosing the ones least likely to
be able to adapt to a more urban way of life. When settled on
the outskirts of predominantly Han cities and towns, the
Mongols often lack Mongol language schools and become marginal
residents in a culturally and socially alien environment.
Already, there are alarming signs of dramatic drops in income
among the resettled migrants, as well as sharp drops in school
attendance as relocated Mongol students find themselves with
either no local schools, or only Chinese language ones.
Ecological migration thus runs directly contrary to any
minority’s right to preserve their communal life. Before 1947,
pasture and unreclaimed Mongol steppe was held collectively by
the “banner,” that is to say, a county-level unit. Decades of
political and social conflict among the Mongol-Han frontier in
the years leading up to 1947 revolved around the Mongols’
tenacious and resourceful attempts to protect these collective
land rights from encroachment by Chinese land-developers and
their allies in the provincial governments.
From the very inception of Chinese Communist land reform,
however, land was transferred as a whole to the Chinese state,
with rural producers being granted only longer or shorter
leases. The deprivation of land rights has hardly affected only
Mongols or minorities; collectivization in 1956 and the current
rampant abuse of government powers of eminent domain to
facilitate urban sprawl are simply two other egregious examples
of this cavalier disregard of land rights.
Articles 27 and 28 of the Law on Regional National Autonomy
discuss land use and give the autonomous regions the right to
determine ownership of pastures and forests. The same articles,
however, absolutely prohibit any “damage” to the grasslands,
whether by individuals or collectives, and call on the
autonomous authorities to give “priority to the rational
exploitation and utilization of the natural resources that the
local authorities are entitled to develop.” Technocracy, thus,
explicitly trumps individual or collective land rights. The
ongoing destruction of Mongol local community life involved in
ecological migration is, thus, fully in accord with, and may
indeed actually be mandated by, China’s National Autonomy Law–
as long as one accepts the disputed premise that nomadism and
overstocking are behind desertification.
Still, if Inner Mongolia’s regional national autonomous
organs actually spoke for the Mongol nationality, then Articles
27 and 28 would still put these technocratic land use decisions
in the hands of the Mongols, at least. This is not the case,
however. Along with the rejection of banner communal land-
ownership in 1947, the newly created Inner Mongolian Autonomous
Region in 1949 rejected the then-common practice of overlapping
Han and Mongol local jurisdiction with Han xian, or counties,
and Mongol banners in favor of unitary local government. Inner
Mongolia was eventually expanded to include most of China’s
far-flung Mongol communities, but only at the price of thereby
acquiring an overwhelming Han majority. At the prefectural and
county levels, administrative changes ostensibly intended to
give each unit a balance of agricultural and pastoral economies
frequently yoked sparsely settled
majority Mongol districts with vastly more populous Han
majority districts. As a result, only in the arid zone
townships–sumu–and in some purely steppe banners do Mongols
actually predominate in government. At the prefectural and all-
regional levels, the Mongols have the worst of both worlds:
over-represented enough through “affirmative action” to
generate resentment, but not numerous enough to actually
control decisionmaking in Mongol interests. This does not even
take into account the power of the central government in
Beijing.
Thus, the regional national autonomous organs simply cannot
act as protectors of specifically ethnic Mongol interests. Now,
no one can deny that it would be fundamentally unfair for
decisionmaking in a region only 16 percent Mongol, as Inner
Mongolia as a whole is, to be monopolized by Mongols. Yet,
apart from such a monopoly it is hard to see how the Mongols,
as a group, can be said to have had any meaningful voice in the
momentous decision taken in 2001 to remove whole communities
from their ancestral lands. Under Chinese law, regional
national autonomy, for better or for worse, is the only organ
through which the minority nationalities exercise their
collective right to autonomy, yet in a region with borders
drawn wherever possible to combine Han and Mongol communities,
such autonomy cannot help but be fictitious.
As a result, ecological migration, despite its origins
within the Inner Mongolian bureaucracy, is one more example of
the inability of Chinese regional national autonomy, as
currently structured, to allow the legitimate concerns of
minorities even to be voiced openly, let along to prevail, in
the public arena.
Thank you, Mr. Foarde.
[The prepared statement of Mr. Atwood appears in the
appendix.]
Mr. Foarde. Thank you very much for bringing us, for the
first time, some real expertise and depth on the whole question
of the Mongolian minority. We have been watching things for a
long time, and I know we will have a chance to get into things
in more depth during the Q&A.
It is my privilege now to recognize an old friend of the
Commission and the Commission staff, someone who has appeared
before us here in Washington, and we are delighted to welcome
back Professor Gardner Bovingdon of the same Department of
Central Eurasian Studies at Indiana University. Gardner is the
author of
several articles and book chapters on Xinjiang. He is fluent in
both Uighur and Chinese. He obtained his Ph.D. from Cornell
University in 2002, and conducted much of his dissertation
field work from Xinjiang University. He has published
“Autonomy in Xinjiang: Han Nationalist Imperatives and Uighur
Discontent” as part of the East-West Center’s Study Group on
Xinjiang, and he is currently revising a manuscript for
publication entitled “Strangers in their Own Land: The
Politics of Uighur Identity in Chinese Central Asia.”
Welcome, Gardner Bovingdon, please.

STATEMENT OF GARDNER BOVINGDON, ASSISTANT PROFESSOR, DEPARTMENT
OF CENTRAL EURASIAN STUDIES, INDIANA UNIVERSITY, BLOOMINGTON,
IN

Mr. Bovingdon. Thank you very much, Mr. Foarde. I would
also like to thank the other members of the Commission staff
for organizing what is once again a very important panel on an
important topic. I would also like to preface my prepared
remarks by observing that the question of what exactly are
universal human rights is very much a vexed and still
contentious one, as we all know.
I applaud the work of Mr. Phillips and Mr. Sorenson in
preparing comparative legal materials, because I think it is
only through this kind of rigorous comparison of the laws of
the land in various autonomy regimes that we can come to any
consensus about what ought to be included in a system of
autonomy.
I have been invited to address the question of whether the
regional autonomy law protects minority rights in the Xinjiang
Uighur Autonomous Region. In a recent short monograph,
mentioned a moment ago, I considered the matter at greater
length. Here, I will focus on one particular right invoked in
the regional autonomy law, that of each non-Han ethno-national
group, or minzu, to administer its own internal affairs within
the autonomous unit or units assigned to it. Throughout, I will
refer to these groups not as minorities, but as minzu, a
Chinese term that keeps attention focused not on their numbers,
but on their cultural distinctiveness with respect to the Han.
I will take up three related matters. First, how is the
right
defined? In other words, what constitute the so-called
“internal affairs? ” Second, who administers this right?
Third, what legal recourse do groups have if the right is
abridged?
Now, on its face the term “internal affairs” seems
irremediably vague. In fact, much of the political contention
in modern Xinjiang can be understood as a dispute over the
meaning of the term.
Here, I would leap off the page of my prepared remarks and
observe that since so much of national level political
discourse is couched in terms of the general interest, and the
very term “democratic centralism” presumes that when the
minorities’ interests differ from those of the majority, the
majority will prevail. But this lends even greater urgency to
the question of determining exactly what are “internal
affairs.”
The law itself does little to clarify the question.
Specific articles enumerate the rights of members of each minzu
to vote, to be treated as equals with all other citizens, to
use and develop their native language, to foster the
“excellent parts” of their native culture, and to conduct
court proceedings in their native language. Other articles
describe special powers of autonomy, such as the right to
modify national laws if inappropriate to local circumstances,
to modify educational materials, to make special fiscal
arrangements locally and with Beijing, and to propose general
and special autonomy laws for each unit. Yet, in each case the
exercise of the power of autonomy is subject to approval by
higher-level government organs. In plain language, it is not
autonomous.
In the view of many Uighurs, a number of matters properly
constitute internal affairs in the autonomous region bearing
their name: control of immigration into Xinjiang, the
exploitation of its land, water, and mineral resources, the
content of education and the language in which it is delivered,
the practice of religion, the choice of family size, and the
management of expressive culture, including music, novels,
film, and so on. At present, all these are beyond popular
control, by which I mean the final say on what can be produced,
what can be promulgated, et cetera, lies outside control of the
locals.
If ordinary Uighurs have little opportunity to manage their
collective internal affairs, they must depend on political
representatives to do so on their behalf. As other scholars
have demonstrated, there are very few mechanisms of interest
aggregation available to ordinary citizens of China. Though the
PRC Constitution explicitly guarantees free speech, assembly,
and press in Article 35, many citizens throughout China have
been prosecuted for words they have spoken or written, many
others for taking part in demonstrations or other peaceful
gatherings.
The evidence suggests that these restrictions have fallen
with particular force on certain non-Han groups such as
Uighurs. Attempts by Uighur individuals or groups to raise
concerns with the government, or even to express them publicly,
have been harshly punished. Peaceful demonstrators, poets,
teachers, and business people have all been jailed on charges
of “separatism” or “leaking state secrets.” The stark
limitations on popular political expression lends special
importance to those who represent ordinary citizens in
government organs and in the Party.
The PRC’s recent experiments with electoral democracy have
thus far been confined to the local level. Most officials at
higher levels of the government have long been, and continue to
be, appointed by other officials. Party elites and autonomous
units made extraordinarily efforts to recruit government
officials from among non-Hans during the 15 years after the PRC
was founded. Here, I should explain when I speak of “non-
Hans” in Xinjiang, it is not an accident.
On the one hand, I point to the fact that Xinjiang has long
been, and continues to be, a region inhabited by many different
groups, not just Hans, not just Uighurs, but also Kazakhs and
others, and also the fact that when the government promulgates
figures indicating the percentage of cadres who are of the
various–what we are calling here today–“minority
nationalities,” they are lumping them all together, if you
will, to aggregate the numbers to make them look better.
I would add that, in the view of many Uighurs–and I am not
evaluating them myself–this is disingenuous, since after all,
in the Uighur Autonomous Region, the percentage of Uighurs
should itself be broken out from the whole.
The considerable success of Party elites in doing the
recruitment I just described is reflected in the more than
100,000 non-Han in government positions in Xinjiang by 1965. Of
a total body of 190,000 cadres, non-Hans thus constituted
nearly 56 percent. Though well below their proportion in the
general population of over 75 percent, these cadres lent
substance by their numbers to the slogan of minzu regional
autonomy, “minzu quyu zizhi.” Unfortunately, the vast
majority were purged during the Cultural Revolution, 1966 to
1976. By 1983, most of those had been reinstated, and many more
non-Han recruited into the government, raising the total number
to over 180,000. However, while the raw number of non-Han
cadres rose substantially, their share in the total number fell
over 10 percentage points to 43 percent. According to the PRC
State Council’s 2003 white paper in Xinjiang, the percentage
has risen since then. Today, the nearly 350,000 non-Han cadres
constitute almost 52 percent of the total.
The general point to be made is that there has consistently
been a substantial gap between the proportion of non-Han in
government and in the population, though massive Han
immigration has narrowed that gap considerably. The increased
proportion of non-Han in government positions since the 1970s
was the direct result of Beijing’s calls in the early 1980s for
increased “nativization”–minzuhua–of governments in
autonomous regions. Many Uighurs and other non-Han hoped that
this presaged more numerically representative governments and,
thus, broader autonomy in Xinjiang.
The 2001 revision of the Regional Autonomy Law points in
the opposite direction: where the original 1984 law suggested
that officials “as far as possible”–jinliang–be selected
from among non-Han, the new version stipulates only that
positions be apportioned “reasonably”–heli–among groups.
There has never been a corresponding initiative in the
Party. The percentage gap mentioned above is much more
pronounced in the case of Party members. In 1987, only 38.4
percent of Party members in Xinjiang were non-Han, though non-
Hans comprised more than 60 percent of the population. The
numbers subsequently fell. In 1994, the percentage of non-Han
Party members had decreased to 36.7 percent. The small and
falling proportion of non-Han in Xinjiang’s Party apparatus is
particularly significant, given the dominance of the CCP in
political life. Party officials outrank government officials at
corresponding ranks in the political hierarchy, and therefore
have the final say in matters of consequence.
The disproportion is even more pronounced in leadership
positions. At all levels of the hierarchy, from village to
provincial level, the overwhelming majority of Party first
secretaries in Xinjiang have always been Han. There has never
been an official explanation of this seeming statistical
anomaly. This level of numerical detail suggests in broad terms
that Uighurs and other non-Han have never enjoyed
representation in government organs commensurate with their
proportions in the population, and have been even less well-
represented in the Party. It remains to point out that, in the
estimation of ordinary Uighurs, those Uighurs who have risen to
top leadership positions have been selected not for their
responsiveness to popular concerns, but for their tractability
in the eyes of the Party.
Thus, the problem of defining the right under consideration
is compounded by an inadequate body of representatives charged
with giving substance to that political right. Where can
ordinary Uighurs turn if they feel the right to manage Uighurs’
internal affairs have been compromised and their
representatives have not protected their interests? The Chinese
legal scholar Yu Xingzhong illustrates a crucial weakness in
the 2001 Regional Autonomy Law. Though the law enumerates
certain rights, including the one under consideration here, it
is, in his words, “non-actionable.” “The enforcement of this
law,” he says, “rests entirely on the conscience and
awareness of the departments concerned. If a state organ fails
to implement such a law, there is no legal basis to hold such
an organ responsible and hence no remedy can be sought. . . .
In addition, a basic law like this is constitutional by nature
and as such, like the PRC Constitution itself, is not
actionable. Past experience has shown that the Regional
Autonomy Law has rarely been cited to decide court cases.” In
plain language, the law does not specify legal consequences if
a right is abridged, nor does it indicate where redress might
be pursued.
In sum, given the fuzziness with which the right of each
minzu to manage its own internal affairs is defined, the
paucity of minzu representatives empowered to exercise that
right in Xinjiang, and the absence of clear legal recourse if
the right is infringed, one is led to the conclusion that the
Regional Autonomy Law, as amended in 2001, does little to
protect minority rights. It is to be hoped that the next
version does better.
Thank you, Mr. Foarde.
The prepared statement of Mr. Bovingdon appears in the
appendix.]
Mr. Foarde. Thank you very much, Gardner Bovingdon.
I am going to let our three panelists rest their voices for
a moment while I encourage everyone who is attending today to
continue to check the CECC Web site at http://www.cecc.gov for not
only the proceedings and the full transcript of this roundtable
in a few weeks, but also all of our previous roundtables and
hearings are posted there, together with staff papers and other
information about China and about the topic of today’s
roundtable.
Let us go on, then, to the question and answer session. Our
staff panel up here will address questions either to one
specific panelist, or perhaps to all of you. If a question is
addressed to one panelist, but the others have a comment they
wish to make, by all means, because we want to hear everybody’s
views.
Let me begin the questioning by asking David Phillips a
couple of things. Just for the record, I was struck by your
comment about the difference in the first time that you visited
China and talked to some of the same interlocutors, or at least
similar ones, and this last time. When, for the record, was the
first time that you had these sorts of conversations with, was
it United Front Work Department? What year, roughly?
Mr. Phillips. About 10 years ago, the mid-1990s.
Mr. Foarde. Do you have a view on to what we could
attribute the gap between what the law says and the
implementation of the law, with specific focus on Tibet and
Tibetans?
Mr. Phillips. Lack of consultation with affected
populations, and then lack of recourse by those affected
populations if there is a gap between the legislative intent
and the implementation. There are few civil society
organizations or local government institutions that monitor
implementation of laws. In cases where they have called
deficiencies to the attention of local People’s Congresses,
those concerns have largely been unaddressed.
There should be more civil society participation in
monitoring legal implementation and a procedure for addressing
shortfalls that involves the affected populations.
Mr. Foarde. Useful. Thank you.
The work that you and your colleague did in coming up with
a recommendation for the international study group, I thought
was a fascinating idea. But one thing that I did not hear, and
I was wondering why, was whether or not there is a role for
both the U.S. and Chinese Governments in terms of supporting
this international study group not only with cash, but also
with in-kind support. I only heard you talking about it being
underwritten by the United States. Did you give any thought to,
or were any discussions had, about what the role of the PRC
central government might be, or even the Tibet Autonomous
Region Government? Is there a role for an agency or
organization in the U.N. system?
Mr. Phillips. To my understanding, the most effective
bilateral dialogue on human rights has been the dialogue
between China and Norway. The non-confrontational demeanor of
Norwegian officials is welcomed by their Chinese counterparts.
It is difficult for U.S. officials to engage in such
discussions because of the significance of the political and
security role that the United States plays worldwide. Chinese
officials are sensitive to any suggestion that dialogue might
represent interference in their internal affairs. Just by
virtue of America’s political persona, its intentions can be
misconstrued. Therefore, the proposal is that, as part of the
bilateral dialogue on human rights between the United States
and China, terms of reference would be mutually agreed and then
a quasi-governmental organization or academic institution would
carry that dialogue forward.
The dialogue can involve U.S. and Chinese institutions, but
it can also be multilateralized. There is extensive expertise
on global autonomy arrangements in the Asia-Pacific region, as
well as experts on power sharing formulas in western Europe.
I think the ultimate objective here is to provide
information to Chinese counterparts in a way which is benign
and non-intrusive, so they can benefit from the experience of
international partners, and then incorporate that experience
into their own approach and methodology.
Mr. Foarde. Thank you. Useful. Let me ask Christopher
Atwood, roughly how much money is the central Chinese
Government investing in the ecological migration program?
Mr. Atwood. I have not been able to find figures.
Apparently, there are figures for the entire region, aggregated
sums. They are figures that are apparently being dispersed at
local levels in accordance with local desires, and I have not
been able to find the totals. Also, the funds for funding
migration are often lumped locally with all expenses for
fighting desertification, tree planting, sowing grass, and the
like.
Mr. Foarde. So there is no sort of line item in the central
People’s government budget for this particular program.
Mr. Atwood. Not that I am aware of.
Mr. Foarde. Interesting. I was interested in your comments
about the programs that the relocated Mongolians are having
outside of predominantly Han cities. One of the questions that
we look into quite a lot here on the Commission staff, is the
whole problem of hukou, the residency permit system, and
whether or not it can be modified or whether or not it should
be scrapped, or what its future might be.
How does the existing hukou system affect these Mongolian
migrants?
Mr. Atwood. Well, these migrants’ hukous are transferred to
their new residency. Of course, the key thing is that they are
prohibited from returning to the area that they have left
without permission from the local district from which they have
been moved, for that five-year period, and even after that only
with approval. So in this case, the hukou system is functioning
not to keep people out of the urban areas, but rather to keep
them out of the rural areas from which they have been moved.
Another problem is not so much the transfer of hukou, but
simply the construction of the necessary infrastructure–having
it in place. The reporting on this is not systematic.
Certainly, large sums of money are being devoted to building
housing. Most of these ecological migrants are to be housed in
adobe houses or sometimes apartment-block style housing. This
seems to be adequate in some cases and seems to be inadequate
in other cases.
The areas of most concern with this are primarily
employment and adapting to the new environment. Are the
employment opportunities sufficient in the area to which they
are being moved? Are they adapting well to them? Also,
schooling, as I said. Does there exist Mongol-language
schooling? Is there Mongol-language schooling where they are
being moved, to largely Han areas?
I should say that there are a number of relatively small
town-like settlements in the steppe where the Mongols are also
a significant percentage of the population, so they are not all
being moved to the more dominantly Han cities and towns on the
steppes, such as Shiliin Hot and other urban places. But where
they are being moved to those dominantly Han areas, it is a
question of, does the Mongolian culture have a future? In fact,
this is taking place in a wider context of Mongolian language
education, and Mongolian autonomous institutions, so to speak,
facing a real crisis of confidence from the Mongolian
populations there.
Mr. Foarde. Thank you. I would now like to pass the
microphone to Susan Roosevelt Weld, who is the general counsel
of the Commission. Susan.
Ms. Weld. Thanks a lot, John. Thank you all for very
exciting remarks so far. I want to address my first question to
Mr. Phillips. This great–actually rather admirable–structure
of laws seems to be quite an advance in the way it provides
minority rights to people who otherwise have been overwhelmed
by the Han population in China. It seems, if you compare that
structure to reality, it is quite unrelated to what you
otherwise would see in the history of some of the minority
areas. So I am wondering, how do you put those two things
together? Can you challenge one with the other? I think to
myself, civil society in China is beginning, it is hopeful. And
I remember that Wang Dan says that here is where we should put
all our energies, into trying to promote civil society in
China.
But there are also new laws, for example, the
Administrative Litigation Law. Could there be some adjustment
legally so that a minority person in Tibet, for example, could
use the law to enforce some of this grand structure? A
structure which seems in all too many ways not to be effective?
Mr. Phillips. On the subject of minority rights, there is
no single covenant that enumerates minority rights standards.
Our research looked at a range of different treaties,
conventions, national constitutions, and regional documents in
order to aggregate a standard for minority rights.
We found, in large measure, Chinese laws have been drafted
in a way that accommodates international standards. But there
is a significant gap between the drafting of those laws and
their execution on the ground. We purposefully did not get into
an implementation analysis law-by-law. We felt that this work
is best done by human rights groups. Besides, that was outside
the mandate of our activity. Clearly, the gap between the
international standard and the laws is less significant than
the gap between the laws and their implementation in China.
On the question of civil society, I think that civil
society goes hand-in-hand with local government responsibility.
A great deal of focus, when it comes to governance of China,
has been on local elections and the development of local
institutions. China has welcomed international participation in
monitoring and evaluating local elections.
I would like to pick up on Mr. Foarde’s comments when it
comes to matters of budgeting. If there was local
responsibility, transparency, and reporting on the development
of natural resources–whether they be pastoral, energy or
mineral–so that there was an accounting as the basis for
returning some value to the local population, it would serve
the interests of those populations and be consistent with
Chinese and international objectives to strengthen local
governance.
Ms. Weld. So that would be done by the National Audit
Bureau, which has just begun raising its head above the water
last summer. Apparently it is now going to be pushing its
inspection
efforts down to lower levels of government. That is a real
recommendation that I think could be added to your report so
the National Auditor’s Office could go into the autonomous
areas and see where the money is actually going.
Mr. Phillips. Yes, that is a worthy recommendation. I would
not restrict that process entirely to a top-down review. I
think it is also important and consistent with the assignment
to an autonomous agency with responsibility for economic
development and the finances of autonomous governance
activities that there would be a mechanism that corresponds
with that audit process that can accurately reflect realities
on the ground and provide an outlet for civil society concerns
that are raised locally, so that those concerns are heard with
national government officials in Beijing.
Ms. Weld. Thank you.
Mr. Foarde. It is always important for us to recognize the
people who do the heavy lifting in organizing these staff-led
roundtables, so it is my great pleasure to recognize Dr.
Katherine Palmer Kaup, who is our visiting special advisor on
minorities issues for this calendar year. She joins us from
Furman University in Greenville, SC. We are really happy to
have you, Kate, and thank you for doing this today.
Ms. Kaup. Great. Thanks. I want to thank you all again very
much for coming. You had great testimony and I think we have
learned quite a lot already.
I would like to pick up on a question raised by Dr.
Bovingdon on the training of minority ethnic cadres. The
preface to the Law of Ethnic Regional Autonomy states that the
law “embodies the state’s full respect for, and guarantee of,
the right of minority nationalities to administer their
internal affairs.” It goes on to say that this requires “a
large number of cadres at various levels be trained from among
the minority nationalities.” Article 17 then says that posts
in the people’s governments of autonomous areas should be
“equitably allocated among people of the nationality
exercising regional autonomy and other minority nationalities
in the area concerned.”
Dr. Bovingdon gave us some good figures on the number of
cadres in government offices, but I would like to pursue that a
bit further and ask, how are these cadres selected? What role,
if any, do the local minority communities have in deciding
exactly who fills these government posts and other official
positions, including teachers, who are officially part of the
cadre corps. I raise the question to all three panelists.
Mr. Bovingdon. Unfortunately, I do not personally have–and
I am not sure anyone outside China has–very good information
on the topic you just raised, how officials are recruited above
the local level. We know that there are village-level
elections. Now, the story that one hears from ordinary Uighurs
is that this is essentially a top-down process in which likely
candidates at lower levels are selected and promoted if they
act in consonance with Party goals and local government goals.
But, unfortunately, I cannot give you more detailed information
on that very important question.
Mr. Atwood. Particularly above the township level, I would
have to concur with what Gardner just said. Apart from the
general impression that it is very much a top-down directed
process, details would be hard to come by.
But I would like to emphasize that at the township level in
Inner Mongolia, the general impression you get from a number of
researchers–it is also my own personal impression from those
areas I have visited–that, at the township level, the local
governments are still dominated by what we can call local
oligarchies. Most of these date–and many of them are held
quite continuously by one or two families–back to the Land
Reform period in the 1940s. This land reform took place from
around 1947 to around 1948 and was extremely violent and
extremely divisive, particularly in Eastern and Inner Mongolia,
and created community divisions that are still active today.
The populations of Inner Mongolia generally tend to be
concentrated toward the east, so the eastern areas are the ones
with the largest populations. That is to say, the people who
were the victors in that conflict are still there, many of them
family by blood or related by marriage, and are still more or
less running those local party and government organizations.
They form the very basic level for the recruitment of
Mongol cadres, who mostly come from the countryside, because of
the largely rural distribution of the Mongol population as a
whole. So that, I think, is something important to consider
sort of at the grass-roots level.
Mr. Phillips. It is no wonder that Dr. Bovingdon did his
field research at Xinjiang University, because a lot of data
just simply is not available sitting at an academic
institution, whether Cornell or Harvard. We were fortunate in
benefiting from a team of a dozen Chinese-language lawyers who
worked with us on the academic research. Through the course of
our research we discovered that we were really just scraping
the tip of the iceberg. It is particularly important to go out
to the ethnic Tibetan areas of western China and conduct
research there, which was beyond our scope at the time.
The international study group that I proposed should have a
point of contact in Beijing, but it should also seek to involve
institutions that are working in the ethnic Tibetan areas of
western China, because a lot of the data, both factual and
empirical, is only available when you are on the ground talking
to local cadres.
Mr. Bovingdon. I would like, if I may, to correct one
slight misimpression. I was affiliated with Xinjiang
University. I actually spent considerable time in local
villages interviewing ordinary individuals. When I say that I
do not have detailed information on the processes of selection
and promotion, what I mean is that I was not able to speak to
the kind of people who would speak knowledgeably about this
question. I can say, for instance, that when I went to villages
I heard such remarks. In fact, I will tell a little story. In a
village in eastern Xinjiang, I went with a group of Han Chinese
students who had studied Uighur at Xinjiang University and were
there for a practicum. They were there to learn how to speak
the language, since they really could not speak it yet.
Some local officials remarked, out of the hearing of these
students, that these would be the future leaders and Party
Secretaries in the area, and so the village ought to take very
good care of them and do a good job with them. So here, at
least, we have anecdotal evidence of the process by which they
are selected.
Mr. Atwood. We all seem to be adding little bits. I would
like to just point out that there is information at the higher
levels. We have a number of reports of large-scale factionalism
within the Inner Mongolian Autonomous Region, at the regional
level of the Inner Mongolian Autonomous Region’s Government.
Generally speaking, the factions are divided by observers from
published sources into three large groups. Uradyn Bulag’s
recent works are the best source on this issue. But his
analysis is what I have also heard from other people in Inner
Mongolia as well.
One, you have the West Mongol faction which, in the 1980s
and 1990s, was largely focused around the Yun family, which was
the family of Ulanfu, Inner Mongolia’s party and government
leader before the Cultural Revolution, and restored afterwards.
The family had the Yun surname, but Lanfu was a revolutionary
alias. Then you have the East Mongol faction, which is largely
from the Mongolian-speaking rural areas of Eastern Inner
Mongolia, particularly the Khorchin subgroup; and then,
finally, the local Han faction, the Han of Inner Mongolia.
Interestingly enough, the Party secretaries in Inner
Mongolia, since the Cultural Revolution have not been from any
of these factions. The Party secretaries are always Han, and
not only just Han, but also not local Han, Han cadres from
outside the autonomous region.
So the fact that, for a while in the late 1980s and 1990s,
the Yun family achieved a sort of domination of a number of
positions in both the regional and in the prefectural-level
governments, indicates quite clearly, non-meritocratic
procedures have been at work in cadre selection. I should say,
though, since about the mid-1990s, the Yun family has been
eased out of power almost entirely.
Mr. Foarde. One more, David. Then we are going to go on.
Mr. Phillips. All right. One should not underestimate the
extent to which local interlocutors are intimidated by
foreigners who come to do research. There are different ways of
handling that. One, is to identify local researchers with whom
you can work, but they are usually accountable to their
institutions in Beijing.
Another anecdote: When I was negotiating an ethnographic
mapping project, I presented detailed terms of reference to our
Chinese partner in the State Ethnic Affairs Commission. I
thought that all of that was understood and that we were going
to be able to go forward. I took him out for breakfast
beforehand, reviewed all the details, and I asked “Is
everything clear? ” He paused for about 30 seconds and he
said, “I really like the yogurt here in Norway.” So, it was
clear that we did not have a deal.
I then went back to China and they took me out to a lavish
dinner and presented their counter proposal, which essentially
was, give us all the money, we will do the research, and then
report the data to you. I paused for about 30 seconds and said,
“I really like the noodles here in China.” [Laughter.] Once
we had established the principal of equality, we were then able
to go forward.
Mr. Foarde. Well done.
Mr. Phillips. So, one has to be wary of influence by
central government authorities.
Mr. Foarde. Thank you. I would now like to turn the
questioning over to a colleague whose portfolio encompasses a
lot of the themes that have come up today, such as NGO
development and hukou reform. Carl Minzner is a senior counsel
on the Commission staff.
Carl, over to you.
Mr. Minzner. Thank you very much, John. To the panelists,
thank you all for coming here and allowing me to learn about
Xinjiang, Mongolia, as well as Tibet.
All of you have raised issues of the implementation of the
Autonomy Law itself in your respective areas. A discussion of
these issues with PRC interlocutors is often complicated by
their tendency to view foreigners who raise these issues as
attempting to carve up China, to encourage secession, et
cetera, et cetera. Given this tendency, if we put you in the
role of an advisor to an American Government official who is
going to China to talk about these issues, are there any
specific topics that you think could be raised usefully, given
the mind-set of the Chinese officials with whom they might be
interacting?
Alternatively, is it simply the case that, with that mind-
set of many Chinese officials, there is really no way to
effectively raise some of these issues you brought up regarding
the Autonomy Law?
Mr. Phillips. You used the term “Tibet” in your question.
Let me differentiate the term “Tibet,” which is a political
term that typically refers to the Tibet Autonomous Region and
ethnic Tibetan areas, which refers to the five provinces where
Tibetans live. It would be particularly important in those
discussions to choose one’s words carefully. Any autonomy
arrangement that differentiates the TAR from the other ethnic
Tibetan areas would not be acceptable to Tibetans worldwide.
Therefore, a more uniform approach that encompasses the five
provinces would be imperative.
Mr. Atwood. To address that, actually, there is another
terminological issue that, perhaps for opposite reasons, is
probably very important, that is to distinguish Mongolia from
Inner Mongolia. To compare, it is like saying “Mexico” when
you mean “New Mexico.”
In one sense, ecological migration is a very good issue to
bring up. I think that while the issue here has, as I have
tried to emphasize, very important ethnic repercussions, it is
my belief that the Chinese Government is attempting sincerely
to deal with a real problem, which is desertification, and they
are attempting to do so based on science. I think there are a
number of studies that show that the science upon which they
are basing this looks pretty faulty. At any rate, it is
definitely not working. The data are very clear on the fact
that pasture degradation is not slowing. In fact, it has been
accelerating since 1984. So, I think that is an area where,
definitely, there is room for common dialogue, to say “We have
these concerns based on a number of pieces of information that
this is not the best for the people involved.” Also, “We have
this science that indicates that this may not be the right
approach to dealing with this very real problem.”
Second of all, I just would like to also emphasize that in
Inner Mongolia, it is not often realized the extent to which
Mongol rural community life has actually survived up until this
period. I think that is worthwhile to emphasize how there are
still these sort of vesiculated–as Gardner Bovingdon has
said–communities in Inner Mongolia; many times it is not
realized the degree to which Mongolian-language education,
Mongolian control of their own community life in many of the
arid zones has survived to the present. That is something that
can be emphasized as a positive feature, which is unfortunately
being lost due to this new policy.
Mr. Foarde. Gardner, if you have a comment, please, by all
means.
Mr. Bovingdon. Thanks. It strikes me that there is one
rhetorical approach and one substantive matter that the United
States side might bring to such an interaction.
The first thing which I think would be very likely to
please the Chinese side–although I hasten to add it would be
extremely unsatisfactory to the international Uighur
community–would be to approach the Chinese side by
acknowledging their sovereign control of all the territory of
China, including Xinjiang, and to say that any suggestions made
are consistent with the idea that the territory should be
peacefully administered throughout.
The substantive issue, it seems to me, would be that of
building a bridge between the United States’ continued
grappling with how to acknowledge the rights of Native
Americans, a population that has long been in many territories
in the United States, and the concerns of the Chinese
Government.
One caveat I should add, is that the Chinese Government has
always, since 1949, been loath to–in fact, refused to–
describe any of the 55 minzu as indigenous, for the very reason
that they are concerned about the implications of attaching
indigeneity to the land. But it does seem to me that, beginning
with a stance of saying that we, too, face such problems of
politically and ethnically distinct populations within our
territory might be less likely to rub them the wrong way and
induce that sense of “foreigners meddling in our internal
affairs.”
Mr. Foarde. Thank you. I would now like to recognize our
research associate, Laura Mitchell, for questions. Laura.
Ms. Mitchell. Thank you. Thank you for being here.
Could you speak about the exploitation of natural resources
in the autonomous areas? The Regional Ethnic Autonomy Law
states that compensation should be given when the central
government extracts natural resources from the autonomous
areas. Are there guidelines as to how the compensation should
be divided? Who ultimately has control over the resources?
Mr. Bovingdon. I will start. There are materials that I
would like to have with me here, that I do not, to describe how
the proceeds are apportioned. What I do know, in general terms,
is that at this point the rich oil and gas reserves of Xinjiang
are exploited largely for processing and consumption in China’s
interior, and that these resources are not monetized and paid
for locally. Rather, some part of the taxes from the
exploitation of these resources is reserved to the local
government. So in that sense, one cannot say that the locale is
compensated from the basic proceeds themselves, but rather only
on the margins. Although I should add that Xinjiang, in the
estimation of a number of scholars whom I respect, has long
received subsidies which may be, as Nicolas Becquelin has put
it, a disguised compensation for resource exploitation.
I would just like to add that, in the view of many ordinary
Uighurs, many that I interviewed, there is no connection, in
their view, between their perception that these resources
belong to the locality and to the people there and Beijing’s
conception, as written down in the Constitution, that the
resources really belong to the whole people of China.
Essentially, there is a substantial gap there, and Uighurs have
a feeling that they have no capacity to influence how, at what
price, when, or to what degree resources are exploited.
One more final point. I apologize. There is also a
perception among Uighurs that, because there are very few
Uighurs employed in the gas and oil industries, they lack even
the chance to receive employment and training from this
enterprise.
Mr. Atwood. I would just like to emphasize, all of what
Gardner just said would be applicable to Inner Mongolia,
particularly that last part. The extractive industries in Inner
Mongolia are overwhelmingly Han Chinese dominated. So the towns
created for these extractive industries, such as Bayan Oboo in
Southwestern Inner Mongolia, coal towns like Wuhai and so on,
are up to 98, 99 percent Han Chinese, and that are largely from
outside of Inner Mongolia in their population.
I would like to also make another comment that I think
links up this question with the question of different economy,
laws, and practices that go along with these sort of resources,
and also Gardner Bovingdon’s point about the question of
reservations, which might be a way of defusing hostility.
I just want to emphasize that pre-1947 arrangements–I say
1947 because the establishment of Chinese Communist Party
control occurred two years earlier in Inner Mongolia than it
did in the rest of China–in Inner Mongolia also form a very
rich fund of experience, which is, unfortunately, not being
used because it is, of course, excoriated as being feudal, part
of the whole Qing Dynasty past.
The strength of these autonomy systems, the traditional
banner system, was that first of all, it dealt with the
relative dispersion of the Mongolian population, both by being
decentralized within itself, and also by having local
government divided by ethnic status: banners for Mongols,
counties for Chinese. Now, for a number of functions, this is
not going to work. But for areas such as
education and a number of cultural issues, a kind of divided
local government, with people of different ethnic groups coming
under different authorities for cultural purposes, may have
something to offer, and it has been used in a number of other
countries as well.
Also, the banners were common property- and resource-
holding corporations. The local Mongols were members of these,
outsider Mongols and Han Chinese were not. Therefore,
exploitation of these resources by outsiders involved payment
of funds which had to be negotiated. This included not only
just for renting farmland, but also for exploiting salt lakes,
coal mining, and a number of other things.
Now, obviously we cannot just reinstitute the pre-1947
system, but this is a font of institutional experience which I
think could also be fruitfully included, especially because it
is something that the Mongols themselves have done, have
experience of, know, and which, to a certain extent, still has
some kind of legitimacy or memory among the Mongols.
Finally, about natural resources. The other thing left to
consider is environmental degradation. For example, in the
suburbs of Baotou, one of China’s largest steel metropolises,
the herding areas of Agarautai have extensive air pollution,
and the Mongols there feel that it is degrading the quality of
the pastures.
We also have the issues of eminent domain, with recent
reports of a number of abuses of the power of eminent domain,
people being moved off for power plants, coal mines, and other
industries in Inner Mongolia. These new institutions are going
to move herders off the land. So, this is another issue that
has to be brought into play when we talk about natural
resources.
Mr. Foarde. David, if you have a comment, please go ahead.
Mr. Phillips. For each of the ethnic Tibetan areas, there
are implementation measures that call on local authorities to
bear responsibility for managing and protecting natural
resources. In the TAR, laws demand “rational” development.
There are stipulations that prescribe a certain percentage of
mineral development, gold and silver, that is extracted be set
aside for decorative uses by Tibetans or for religious
iconography.
When it comes to the training of local cadres involved in
economic development, laws in the TAR call for modifying the
admission score of ethnic Tibetans. There is an active
affirmative action program which seeks to promote indigenous
participation.
There are extensive international reports that parts of the
TAR are used as a dumping ground for radioactive material via a
contract that the Chinese Government has entered into with
other countries for disposal of nuclear waste. That clearly is
being done without the consent of local authorities.
If I could return to your earlier question, Dr. Weld, and
associate myself with Professor Bovingdon. The United Nations
really does not have a significant role to play in these
matters.
When it comes to the United Nations, Chinese officials
focus on the Human Rights Commission, special rapporteurs, and
Chapter VII intervention. So, I do not think that the right
institutional mechanism for the kinds of cooperative
arrangements I have proposed involve U.N. agencies. However,
that does not mitigate the importance of multilateralism in
technical cooperation.
Mr. Foarde. Thank you. Really useful. Let me sneak in a
couple of very quick questions and see if we can give everybody
another chance to ask a question before we break up.
Gardner Bovingdon, I was really struck by one of the things
that you said about the official government policy, among other
things, being to foster the “excellent parts” of local
culture. Is the term “excellent parts,” or what constitutes
“excellent parts,” defined anywhere in law or regulation as
far as you know?
Mr. Bovingdon. It is an important question to which I do
not have a satisfactory answer. All I have is speculations. It
is possible that there are legal rubrics that define what
constitutes excellent parts of a culture. I can tell you what
my suspicions are based on extensive field experience in
Xinjiang. What this small turn of a phrase does is enable
officials to object to the fostering of certain aspects of what
are regarded as Uighur culture, or the culture of any minority
group in China, in the sense that this is intended to say that
this is not a blanket approval of support for all kinds of
culture. Some may be regarded as retrograde.
Here, I would like to relate my comments to what Professor
Atwood has previously said about “scientific” versus
“unscientific” farming. Once again, the definition of these
terms is in the eye of the beholder, and in this case the
beholder is also the power holder. Therefore, I regard this as
kind of an insidious qualification to the original term.
Mr. Foarde. Thank you. Professor Atwood, I wanted to pick
up on something that you talked about implicitly, but we did
not really ask a specific question about it. One of the things
that has always interested me, is how much contact and
influence across the border into Mongolia is there? And how
many contacts back and forth are there from Inner Mongolia and
Mongolia, particularly with respect to nationalities issues?
Mr. Atwood. Yes. That is a really important issue,
definitely one not to bring up when you are talking with
Chinese Government officials. Although I will say, in fact, in
some ways the situation turned out a lot better for the Chinese
authorities than they were expecting in the late 1980s.
Inner Mongolia and Mongolia had extensive contacts in the
1920s, were separated by politics in the 1930s and 1940s, and
had controlled, but still fairly extensive, contacts again in
the 1950s, and after that were again separated during the Sino-
Soviet split. The normalization of relations between Mongolia
and China, along with the Soviet Union and China, in 1989
opened the way for people on both sides of the border to come
back into contact.
That produced a couple of strikingly interesting reactions.
First of all, there was the expected creation of organizations
in independent Mongolia to promote Inner Mongolian human rights
and nationalism. These remained, however, very small. The
Mongolian Government has been extremely strict about
acknowledging explicitly, without any reservation, that they
respect the territorial integrity of China, acknowledge one
China, all of those things. But as a democracy, they do not
suppress the existence of these various groups supporting Inner
Mongolian nationalism, though none of them are particularly
active. So, that was the thing that China did not like.
For example, there is a recent report about the Mongolian
heavy metal band Hurd, which was going to be playing in Hohhot.
They had done it a couple of times before, but this time the
Inner Mongolian Government prevented the students from
attending that concert. I think it was because the latest CD
had a title song called “Born in Mongolia,” and it went on
from there with very nationalistic lyrics.
On the other hand, though, and more strongly, the Inner
Mongolians and the Mongolians, over their period of separation,
have become very different in their whole viewpoints and way of
life, so there was quite a bit of mutual disillusionment there
with that situation. The constituency for pan-Mongolism in
Mongolia is now actually shallow, extremely shallow. So in a
sense there is quite a bit of contact, but it has only
exacerbated the sense of “these people are different from us”
on both sides. Inner Mongolians and the Mongolians do not
really feel themselves to be a part of the same political
community in the same way that they were hoping to in the mid-
1980s.
Mr. Foarde. Interesting. Thank you.
Mr. Phillips. It sounds as though Hurd has taken a number
from Bruce Springsteen’s playlist.
Mr. Foarde. Susan, do you want to pick up the questioning?
Ms. Weld. Sure. This is a little bit outside what we have
been talking about so far. I am interested in some of the
trafficking in women and children that has been going on in
China recently. I noticed that there was a case where one of
these gangs purchases babies from hospitals locally and puts
them into a sort of trafficking flow throughout China to
another place where they want to buy the babies. Is this a
problem in Mongolia? It does not seem to be something that
happens in ethnic areas, perhaps because their preference for
sons is not as strong as in the Han areas. Does anybody have
any answers on that?
Mr. Atwood. The only thing is early in the 1960s, the
government placed orphaned Chinese children from Shanghai with
Inner Mongolian families, and they have grown up to be
Mongolian-speaking herders, registered as Mongols, but of Han
Chinese origin, Shanghai origin. But, no, I do not believe
there is any particular traffic.
Mr. Foarde. Let me pass it on to Kate for another question.
Ms. Kaup. Great. Thanks.
I am struck, listening to all of you, at how differently
minority policy has been applied in different areas. My own
fieldwork has been in Southern China among the Zhuang and the
context is very different there. So I would like to direct my
question specifically to Gardner, and then ask David Phillips
to expand on the Tibetan case as well.
A number of Xinjiang analysts–including Western analysts,
human rights activists, Uighurs within Xinjiang, as well as
Uighurs in exile–have noted an increase in central controls in
Xinjiang, particularly since 2000.
These analysts have noted increased Chinese Government
violations of Uighurs’ rights of expression, religious
practice, and of their right to use their own language. They
have noted an increase in arrests of Uighurs who question the
state’s minority policy. Most of these analysts point to an
increase in governmental controls since the “Develop the
West” campaign was launched in 2000, and they note a major
crackdown, particularly on Muslims, in the post-September 11
time period.
I would like to ask, first, if you have noticed similar
trends. Second, given–I think it is a given–increased
tensions at the moment between the Han Chinese and the minority
groups, what concrete steps can be taken to ease these
tensions?
Specifically, if you had a chance to speak to the Chinese
Government, how would you encourage them to loosen controls and
reassure them that doing so is not going to lead to increased
separatist activity or support for independence?
Mr. Bovingdon. That is a full plate of questions.
Let me agree, first of all, with the findings of other
analysts that you mentioned, that there has clearly been
increased crackdown, however we want to put it, political
repression, in Xinjiang since 2000.
In addition to the matters that you took up, I would also
add the fact that there have been book burnings on several
occasions, something I find astounding in the 21st century.
Very recently, within the last month and a half, a Uighur
poet, Nurmamet Yasin, was thrown in prison and all copies of an
allegorical short story he wrote about a pigeon were destroyed.
It seems to me that this, along with the recent increase in the
arms given to police and other peacekeepers in Xinjiang, and
the fact that over the last five years there have been several
clear initiatives to recruit low-level officials from the
interior of China, often in terms that make it clear they
specifically want Hans–that all these signs point to a concern
in Beijing with increasing security in Xinjiang, and in turn
officials understand increasing security to mean increasing
repression, something I think we would all agree is lamentable.
I think one problem with convincing Chinese officials that
decreasing, rather than increasing, repression is likely to
have a beneficent outcome, is that hardliners who have always
thought that decreased control leads to chaos are very much in
the ascendant in the political climate in China today. Wang
Lequan, who is the Party Secretary of Xinjiang and who also
sits on the highest political body in Beijing, has long
believed this himself.
I think one strategy would be to try to reach the softline
constituency and point out that in fact, in the 1980s, in the
first few years of the reforms, while there were a few episodes
of ethnic riots, this was actually not only a fairly free time,
but a fairly peaceful time. Economic growth was high, Uighur
cultural production was high, there was a lot of satisfaction
in the memories of many of my informants with increased
cultural freedoms. I think a case can be made that carefully
managed decreased repression, rather than increased repression,
could lead to the kind of good outcomes that we saw in the
1980s.
Add to this that the kinds of political infiltration that
the Chinese Government feared coming from Central Asia are less
likely to happen with the Taliban out of the way in
Afghanistan, with the climate in Pakistan changing. These, by
the way, are areas directly contiguous with southwest Xinjiang.
I think a case could be made that it is far less likely that
decreasing repression will lead to the infiltration of
undesirable ideas, particularly religious radicalism, et
cetera.
Mr. Foarde. David, do you want to pick that up with respect
to Tibet?
Mr. Phillips. Sure. Just to respond, briefly, to Susan
Weld’s interest on the family matter. One child-one family
rules apply in the ethnic Tibetan areas, but there are
provisions for a second child in certain instances,
particularly in Sichuan, and prefectures in Yunnan and Ganzi.
There are also arrangements for a third child under controlled
circumstances.
Related to Dr. Kaup’s question, in May of 2004 the Chinese
Government issued a white paper on its Tibet policy. If you
read that paper, it sounded like a throwback to hardline
approaches of the 1960s. If I were a Chinese official
contemplating the third visit by overseas Tibetans to Beijing,
I would also have laid down a hard line and used that as a
point of departure for discussion. The fact that the third
visit by the Dharamsala representatives followed the issuance
of that white paper suggests to me that Chinese officials treat
these discussions with greater and greater importance.
In terms of preventing independence, it is essential that
discussions about cultural and religious autonomy include the
element of finality. If there is an arrangement between the
Dalai Lama’s representatives and Chinese officials,
implementation needs to be monitored. Moreover, there can be no
exit clause that allows the arrangement to be revisited in the
future, unless there are serious violations with
implementation. The question of finality is going to be a very
important consideration in Beijing if they want to address the
Tibetan question once and for all. We emphasize elements of
finality in all of our discussions with Chinese officials.
Mr. Foarde. Thank you. Let us take a couple more minutes
and ask Carl Minzner to ask another question.
Mr. Minzner. Thank you very much, John.
In the eastern areas of China, with regard to migrants
coming into urban areas, one thing that you see is the
emergence of a socially excluded migrant underclass. Based on
my reading of some of your written statements, it seems to me
that both economic development in China, as well as direct
Chinese policies, are effectively leading to the breakup of
previously cohesive, small rural communities in all of the
areas that you all focus on, and resettlement, or migration of
those people into urban areas.
Could you first tell me if you think that is an accurate
assessment, and, second, perhaps speculate a little bit on the
social implications of that with regard to the areas that each
of you study?
Mr. Atwood. Yes. First, I would say that that is an
excellent summary of the issue. I like the way, also, that you
divided it into both economic forces working during
development, and also the government force. I think that is
really important to emphasize that both of those are occurring
at the same time and they are both pushing largely toward the
same end. This is, exactly as you said, that there is going to
be a significant urbanization of the minority populations that
have previously been largely rural.
This is particularly important for the Mongols who, unlike
the Uighurs, do not have the tradition of special ethnic
enclaves or wards within cities. Inner Mongolia has not had
special urban wards of Mongol minorities within the cities. The
cities have been almost exclusively Han enclaves.
So that process you described is occurring, and I think
that is the worry, that it will lead to the creation of
something that has not existed before, a kind of Mongol shanty
town. It would be a kind of housing project neighborhoods–
adobe houses or apartment blocks as the case may be–for
Mongols out on the edges of cities and district towns in Inner
Mongolia. That is the worry. But that is exactly where
indications seem to be showing where we are heading, both the
economic factors and also the government’s policy.
Mr. Bovingdon. I would concur. You see similar processes in
Xinjiang. I would just add one extra note that is perhaps a
little bit far from what you were talking about, but I think
will in fact compound the problem that you described.
In Urumqi and Kashgar, the government has taken the
initiative, and I suppose in some cases it is private money as
well, to tear down long-existing city blocks and districts and
replace them with new high-rise apartments.
On the one hand, this seems to be a good outcome in the
sense that you have more spaces in which people can live. The
problem with them is, of course, that they are priced far
beyond the reach of the former residents. I am not aware of any
special arrangements being made for the former residents, other
than telling them that they can get into this apartment if they
can afford it.
The reason that I mention this issue is because I think we
are seeing already, and will see more in the future, not only
the arrival of people coming off the farms who can no longer
find gainful employment there, but also the dispersion of
previously core urban populations in the very ethnic
neighborhoods Chris was just referring to, now being forced
themselves into situations of uncertain safety and quality.
Mr. Foarde. David.
Mr. Phillips. With consideration for the Commission’s
practice of ending the roundtable on time, I will defer an
answer.
Mr. Foarde. All right. Then let me give the last set of
questions this afternoon to Laura Mitchell.
Ms. Mitchell. Recently, the Renewable Resources Law was
passed, in part, to address environmental degradation that has
accompanied development and, in part, to develop sources of
energy in rural and remote areas.
A recent Beijing Review article mentioned that, in
Xinjiang, Inner Mongolia, and Tibet, there have been a number
of projects to develop the use of natural resources such as
hydro power, solar power, and wind power. How have the projects
impacted the people living in the areas?
Mr. Atwood. The development of renewable resources.
Ms. Mitchell. Right. Right.
Mr. Atwood. The use of wind power, in particular, was a
kind of beacon of appropriate small-scale technology in Inner
Mongolia, and also, in Mongolia now as well. Basically, you
have windmills that are portable and are, therefore, compatible
with nomadism, if one is still nomadic or transhumant, and is
able to give people in very remote areas some kind of way of
generating electricity for light, for operating a radio or
television, and other things. So, it has played a significant
role and it has actually a relatively important source of
electricity for a number of people on the grasslands.
I should say, of course, Mongols resettled in these migrant
communities do not need windmills any more. They will get power
from the power grids of the towns and cities where they are
being settled.
Mr. Foarde. Either of the other panelists, please go ahead.
Mr. Phillips. Just given the altitude of western China and
the ethnic Tibetan areas, portable photovoltaic solar
technology has been widely used for remote electrification. In
addition, solar cookers have been used as a substitute for
hydrocarbon fuel sources.
I would add forests to your list a non-renewable resources.
There has been considerable deforestation in western China.
Integrating renewable energy technologies may be a remedy to
deforestation.
Mr. Bovingdon. A last word. I too worry about ecological
devastation and exploitation of non-renewable resources. Since
a number of you have visited Xinjiang, I just want to
acknowledge something all of you must have seen from the train
cars, which is an enormous windmill farm outside of Urumqi:
beautiful, tall, slender stalks on which state-of-the-art
windmills are to be found. I applaud such an initiative to try
to generate power in a renewable and non-polluting way.
Mr. Foarde. Thank you all very much.
Probably the most gratifying thing about doing these issues
roundtables over the last 38 months has been the very high
quality of the conversation that we have had, and we have
continued our excellent record this afternoon. This result is
owing not only to the excellent staff work of my colleagues
here, but particularly to the quality of the panelists. So,
thank all three of you very much on behalf of Senator Chuck
Hagel and the Members of the Congressional-Executive Commission
on China.
But since we have gone a few minutes over our allotted time
to keep the conversation going, let me now gavel this one to a
close with our thanks. Thanks to everyone who attended. Good
afternoon.
[Whereupon, at 3:38 p.m. the issues roundtable was
concluded.]

A P P E N D I X

=======================================================================

Prepared Statements

———-

Prepared Statement of David L. Phillips

APRIL 11, 2005

Thank you for the opportunity to address the Congressional
Executive Committee on China’s roundtable on “China’s Regional
Autonomy Law: Does it protect Minority Rights.”
I am submitting for the record a copy of Legal Standards and
Autonomy Options for Minority Rights in China: the Tibetan Case.\1\
Also submitted for the record is a compilation analysis of 161 laws and
regulations establishing autonomy in the ethnic Tibetan areas of
Western China including the provinces of Sichuan, Yunnan, Gansu,
Qinghai and the Tibet Autonomous Region (TAR).
—————————————————————————
\1\ Harvard University, Belfer Center for Science and International
Affairs at the John F. Kennedy School of Government, September 2005.
—————————————————————————
The report offers a directory of Chinese laws and regulations on
minority rights and autonomy. It:

Provides an assessment of existing national, provincial and
prefectural level Chinese laws and regulations.
Analyzes and outlines the existing international standards
for treatment of minorities and autonomy arrangements.
Offers a menu of autonomy options, based on examples of
existing autonomy models from around the world.
Itemizes the full list of Chinese laws and regulations
reviewed for the report.
Describes 22 other illustrative autonomy arrangements.

Scholarship should not exist in a vacuum. To have practical
application, it must take into account the political context. To this
end, Mr. Theodore C. Sorensen and I visited Beijing in June 2004. The
purpose of our trip was to assess the views of Chinese counterparts on
Tibetan issues. Legal Standards and Autonomy Options for Minorities in
China: The Tibetan Case is designed as a technical resource for
strengthening ethnic minority rights in China, with specific focus on
Tibetans in China, within the context of Chinese law. It is published
in English and Chinese. Research included contact with Chinese
officials, scholars and think-tank representatives. Ongoing cooperation
with Chinese counterparts and dissemination strategies are being
explored.
Based on our discussions, we determined that Chinese officials
increasingly appreciate that effective autonomy would enhance, not
impair, China’s sovereignty and territorial integrity while reinforcing
its stated commitment to the rule of law. They welcomed our view that a
uniform approach to autonomy in the ethnic Tibetan areas of the TAR,
Sichuan, Yunnan, Gansu and Qinghai provinces would enhance stability
and prospects for development. Chinese officials, think-tank
representatives and scholars all affirmed the need to:

“Improve” the country’s legal system.
“Perfect” arrangements for ethnic autonomy.
“Adapt” measures to local conditions.
“Conform” laws and regulations on minority rights to
international standards.

Today’s context provides an opportunity for progress on the Tibetan
issue. We are encouraged by the direct contact between Chinese
officials and Tibetan representatives from Dharamsala who have visited
China three times between 2002 and 2004. A spokesman for the Chinese
Ministry of Foreign Affairs affirmed, “This method proves there is
contact between the central government and the Dalai Lama. The lines of
communication are open.” \2\
—————————————————————————
\2\ The Washington Post, June 14, 2004, “World in Brief,” p. A20.
—————————————————————————
Tibetans also recognize that autonomy is also the best and most
realistic way to preserve Tibetan culture. The Dalai Lama has
reiterated his clear and unambiguous support for the “one-China
line.” He recently went one step further by giving up demands for
Tibetan self-government so long as Tibet’s culture, spirituality, and
environment are preserved. He stated, “I am not in favor of
separation. Tibet is a part of the People’s Republic of China. Tibetan
culture and Buddhism are part of Chinese culture.” \3\ He also
recognized the “broader interest” of Tibetans suggesting that
Tibetans would benefit from China sharing the benefits from its rapid
economic growth while Tibetan Buddhism could enhance “internal
values” by contributing to China’s spiritual identity. The Dalai
Lama’s statements create a unique opportunity to deepen discussions
about autonomy for ethnic Tibetan areas in China paving the way for his
return to Lhasa in the capacity as a spiritual leader.
—————————————————————————
\3\ South China Morning Post, March 14, 2005, “Dalai Lama yields
ground on Tibet self-rule,” p. 1.
—————————————————————————
Objective analysis of the existing body of China’s laws on ethnic
minority rights and autonomy is the essential starting point for
evaluating enhanced autonomy options. Following is an analysis of
Chinese national, provincial, prefectural, and county laws and
regulations in areas of governance, economy, and culture. The analysis
encompasses ethnic Tibetan areas including the TAR, six autonomous
prefectures in Qinghai, one autonomous prefecture in Yunnan, one
autonomous prefecture and one autonomous county in Gansu, and two
autonomous prefectures and one autonomous county in Sichuan.

China’s Laws on Autonomy and Ethnic Minority Rights

After the revolution of 1949, the Chinese Communist Party developed
legal provisions for autonomy, recognizing the advantages of providing
minority groups with self-government. China has since added to this
body of laws. China’s official stance has always been that minorities
share equal legal status with the majority Han, and that minorities
should exercise autonomous self-government to protect their unique
culture.

GOVERNANCE

National laws and regulations on self-governance of minorities
Article 4 of the Constitution of the People’s Republic of China
(PRC) sets forth the fundamental policy of the State with respect to
ethnic groups. It indicates that all ethnic groups are equal. The State
guarantees the legal rights and interests of all minorities and
safeguards and protects the equality, unity, and relationships of all
ethnic groups. Article 4 also prohibits discrimination against and
oppression of ethnic groups and prohibits activities that destroy the
unity of ethnic groups or create ethnic separatism. In accordance with
the “special characteristics and needs” of all minorities, the State
shall assist minority areas to accelerate the development of their
economy and culture. Autonomy is to be implemented in areas where
minorities are concentrated. All autonomous areas are an integral part
of the People’s Republic of China. Each ethnic group has the freedom to
use and develop its own oral and written language and to maintain or
“reform” its own customs and traditions.
The people’s congresses of ethnic autonomous areas have the power
to formulate regulations in accordance with the political, economic,
and cultural characteristics of the local minorities. Such regulations
are to be submitted to the Standing Committee of the National People’s
Congress for approval before they become effective. Regulations of
autonomous prefectures and autonomous counties are to be submitted to
the standing committee of the people’s Congress of the province or
autonomous region for approval before becoming effective and are to be
submitted to the Standing Committee of the National People’s Congress
for the record.\4\ The Standing Committee of the National People’s
Congress has the authority to abolish any local laws or regulations
formulated by state-level agencies in the provinces, autonomous
regions, or municipalities directly under the central government that
conflict with the Constitution or other laws or administrative
regulations.\5\
—————————————————————————
\4\ Constitution, 116. In contrast, the people’s congresses and
their standing committees of provinces and municipalities directly
under the central government need only submit their local legislation
to the Standing Committee of the National People’s Congress for the
record–Constitution 100.
\5\ Constitution, 67(8).
—————————————————————————
Several other national instruments provide for the equal rights of
minorities to self-governance while protecting the unity of the
State.\6\ All minorities are to enjoy the same freedoms of thought,
expression, assembly, religion, movement, association, communication,
and residence as are enjoyed by the Han people in the same locality.\7\
Like the Han majority, minorities are entitled to vote, join groups,
pursue any profession, and use their own languages when instituting or
defending lawsuits or in any investigation conducted by a procuracy.\8\
The development of a minority’s culture and economy are to gradually
eradicate inequality,\9\ but “reforms” of a minority’s customs and
traditions cannot be imposed if a majority of the group wishes
otherwise.\10\ Observance of minority holidays, dietary restrictions,
and religious practices must be allowed,\11\ and complaints of
discrimination are to be handled by the people’s governments.
—————————————————————————
\6\ Decision of the State Council Regarding the Guarantee of the
Equality of Rights of Minorities Living in Dispersed Communities
(adopted on February 22, 1952, by the 125th Session of the State
Council, and issued on August 13, 1952), the Report of the State Ethnic
Affairs Commission (transmitted on October 12, 1979, by the Central
Committee of the Chinese Communist Party and the State Council), and
the Law of the People’s Republic of China on the Autonomy of Ethnic
Areas (effective October 1, 1984, adopted at the Second Session of the
Sixth National People’s Congress and amended on February 28, 2001, by
the 20th Session of the Standing Committee of the Ninth National
People’s Congress).
\7\ Decision of the State Council Regarding the Guarantee of the
Equality of Rights of Minorities Living in Dispersed Communities
(adopted on February 22, 1952, by the 125th Session of the State
Council and issued on August 13, 1952), 1.
\8\ Supra note 13, 4; PRC Autonomy Law, 47.
\9\ Report of the State Ethnic Affairs Commission (transmitted on
October 12, 1979, by the Central Committee of the Chinese Communist
Party and the State Council), Part 2.
\10\ Supra note 15, Part 3.
\11\ Supra note 15, Parts 3 and 4.
—————————————————————————
The Law of the People’s Republic of China on the Autonomy of Ethnic
Areas (the PRC Autonomy Law) requires that areas where minorities are
concentrated are to implement regional autonomy through autonomy
agencies at the regional, prefecture, and county levels.\12\ Autonomy
agencies must place a priority on the interests of the State as a
whole, especially the unity of the State, while safeguarding and
developing the equality and unity of minorities and the socialist
minority relations of mutual assistance.\13\ Discrimination against any
minority is forbidden.\14\
—————————————————————————
\12\ The autonomy agencies are the people’s congresses and the
people’s governments.
\13\ Supra note 13, Part 2 and Part 3; PRC Autonomy Law, 5, 7,
9.
\14\ PRC Autonomy Law, 9.
—————————————————————————
The PRC Autonomy Law contains provisions relating to the right of
autonomy agencies to establish schools; reduce or waive taxes;
establish local commercial banks and credit cooperatives; strengthen
culture by developing minority literature, art, news, publishing,
films, and television; protect historically significant minority sites
and relics; keep and develop “excellent” aspects of minority culture;
and establish border trade. Decisions or orders relating to an
autonomous area must be “suitable” to circumstances in the area.\15\
If any “higher level state agency” decision is not appropriate for
the actual circumstances of a locality, an autonomy agency may request
that such state agency change the decision or request a cessation of
its implementation. The state agency is required to respond within 60
days after receipt of the request.\16\ Popular consultations are
neither forbidden nor required.
—————————————————————————
\15\ PRC Autonomy Law, 54.
\16\ PRC Autonomy Law, 20.
—————————————————————————
Regional and local laws and regulations on self-governance of
minorities
TAR regulations\17\ have been formulated to “standardize”
legislation-making activities and improve the procedures for lawmaking.
Regulations define the authority of the people’s Congress and its
standing committee, prescribing proposal-making procedures for local
regulations in Lhasa, and identifying which authorities have the power
to interpret legislation. Lhasa regulations provide that draft
legislation be submitted to the TAR People’s Congress or the Lhasa
People’s Congress in both Tibetan and Chinese languages.\18\
—————————————————————————
\17\ Regulations of the Tibet Autonomous Region on Legislation
(effective July 1, 2001; adopted by the Fourth Session of the Seventh
People’s Congress of the TAR on May 21, 2001).
\18\ Regulations on the Formulation of Local Laws by Lhasa
Municipality (effective June 1, 2001; adopted on March 25, 2001, by the
Fifth Session of the Seventh People’s Congress of Lhasa Municipality
and approved on May 8, 2001, by the 19th Session of the Standing
Committee of the Seventh People’s Congress of the TAR), 47.
—————————————————————————
The autonomy regulations of Tibetan autonomous prefectures in
Gansu, Qinghai, and Sichuan Provinces provide for local implementation
by the people’s congresses and people’s governments of the PRC Autonomy
Law. In addition, the prefectural regulations provide for translation
agencies to support the use and development of the Tibetan language\19\
and require Chinese cadres\20\ to learn Tibetan.\21\ When studying and
using their own language, minority cadres “should” also study
Putonghua and the Chinese written language.\22\
—————————————————————————
\19\ E.g., Certain Provisions of Gansu Province on the
Implementation of the Law on the Autonomy of Ethnic Areas (adopted on
September 20, 1988, by the Fourth Session of the Standing Committee of
the Seventh People’s Congress of Gansu Province) (the “Gansu Autonomy
Regulations”), 24; Autonomy Regulations of Hainan Tibetan Autonomous
Prefecture (effective October 1, 1987; adopted on April 25, 1987, by
the Second Session of the Eighth People’s Congress of the Hainan
Tibetan Autonomous Prefecture and approved on July 18, 1987, by the
27th Session of the Standing Committee of the Sixth People’s Congress
of Qinghai Province) (the “Hainan Autonomy Regulations”), 15.
\20\ A “cadre” is a Party or government official.
\21\ E.g., Hainan Autonomy Regulations, 56.
\22\ E.g., Hainan Autonomy Regulations, 56.
—————————————————————————
The regulations for the Sichuan prefectures in most cases contain a
provision that religion may not be used to “interfere” with
marriage.\23\ Investigators and judicial staff may not concurrently
hold the position of interpreter.\24\ Regulations call for population
planning to promote good health and the improvement of the
population.\25\ The development of minority medicine should be pursued
by autonomy agencies or by research agencies established by autonomy
agencies.\26\ Generally, the regulations specify that the head of the
prefecture government and the chairman or vice chairman of the standing
committee of the people’s congresses are to be Tibetan, and that
leadership positions in the people’s courts and people’s procuracies
are also to include minorities.\27\ Several regulations also require
the suppression of “majority racism,” particularly “Han racism” and
“regional racism.” \28\
—————————————————————————
\23\ Autonomy Regulations of Haibei Tibetan Autonomous Prefecture
(effective October 1, 1987; adopted on April 25, 1987, by the Second
Session of the Eighth People’s Congress of the Haibei Tibetan
Autonomous Prefecture and approved on July 18, 1987, by the 27th
Session of the Standing Committee of the Sixth People’s Congress of
Qinghai Province) (the “Haibei Autonomy Regulations”), 9; Autonomy
Regulations of Huangnan Tibetan Autonomous Prefecture (effective March
1, 1988; adopted on October 12, 1987, by the Second Session of the
Ninth People’s Congress of the Huangnan Tibetan Autonomous Prefecture
and approved on December 26, 1987, by the 30th Session of the Standing
Committee of the Sixth People’s Congress of Qinghai Province) (the
“Huangnan Autonomy Regulations”), 11; Autonomy Regulations of Yushu
Tibetan Autonomous Prefecture (effective July 25, 1988; adopted on
November 19, 1987, by the Third Session of the Seventh People’s
Congress of the Yushu Tibetan Autonomous Prefecture and approved on
April 20, 1988, by the Second Session of the Standing Committee of the
Seventh People’s Congress of Qinghai Province) (the “Yushu Autonomy
Regulations”), 10; Autonomy Regulations of Guoluo Tibetan Autonomous
Prefecture (effective January 1, 1991; adopted on April 16, 1990, by
the Sixth Session of the Eighth People’s Congress of Guoluo Tibetan
Autonomous Prefecture and approved on November 3, 1990, by the 17th
Session of the Standing Committee of the Seventh People’s Congress of
Qinghai Province) (the “Guoluo Autonomy Regulations”), 9; Autonomy
Regulations of the Haixi Mongolian and Tibetan Autonomous Prefecture
(effective October 1, 1987; approved on July 18, 1987, by the 27th
Session of the Standing Committee of the Sixth People’s Congress of
Qinghai Province and amended on August 28, 1992, by the 28th Session of
the Standing Committee of the Seventh People’s Congress of Qinghai
Province) (the “Haixi Autonomy Regulations”), 5.
\24\ Haibei Autonomy Regulations, 21; Huangnan Autonomy
Regulations, 21.
\25\ Haibei Autonomy Regulations, 52; Huangnan Autonomy
Regulations, 59; Yushu Autonomy Regulations, 54; Guoluo Autonomy
Regulations, 54; Haixi Autonomy Regulations, 50.
\26\ Haibei Autonomy Regulations, 51; Huangnan Autonomy
Regulations, 58; Yushu Autonomy Regulations, 53; Guoluo Autonomy
Regulations, 53; Haixi Autonomy Regulations, 49.
\27\ Haibei Autonomy Regulations, 11, 13, 20; Huangnan Autonomy
Regulations, 13, 14, 20; Yushu Autonomy Regulations, 11, 12, 19;
Guoluo Autonomy Regulations, 11, 12, 14; Haixi Autonomy Regulations,
12, 14.
\28\ Hainan Autonomy Regulations, 54; Haixi Autonomy Regulations,
53.
—————————————————————————
The Guoluo Autonomy Regulations require that at least one half of
the members of the standing committee of its people’s Congress be
Tibetan.\29\ The Huangnan Autonomy Regulations require the autonomy
agencies to adopt measures to gradually change, as determined by the
masses, “old concepts and customs” that obstruct progress toward a
socialist life. They prohibit anyone from, among other things, using
religion to “interfere with” the promotion of technology or to coerce
individuals into making contributions to religious institutions.\30\
—————————————————————————
\29\ 11.
\30\ 8, 11.
—————————————————————————
National laws and regulations on executive governance
National laws set quotas for minority representation in the
National People’s Congress.\31\ Article 65 of the Constitution also
provides that the Standing Committee of the National People’s Congress
is to have an “appropriate” number of minority representatives. To
this end, provisions exist (i) clarifying the guidelines and main tasks
for selecting minority cadres; (ii) strengthening the training and
education of minority cadres and further improving their political and
professional quality; (iii) strengthening the team of minority cadres
at the basic levels; (iv) strengthening the team of minority
specialists and technical cadres; (v) carefully selecting the minority
cadres who are to be leaders; and (vi) including the training and
selection of minority cadres in the agendas of departments in each
area.\32\
—————————————————————————
\31\ A National People’s Congress has a term of five years. See
Constitution 59; Proposal Regarding the Allocation of Quotas for the
Minority Representatives of the Tenth National People’s Congress
(adopted on April 28, 2002, by the 27th Session of the Standing
Committee of the Ninth National People’s Congress), which is a
reiteration of proposals for prior National People’s Congress (6th
through 9th) for minority representation on the National People’s
Congress.
\32\ Opinion of the State Ethnic Affairs Commission on the Work of
Further Training and Selecting Minority Cadres, effective December 30,
1993, Zhongzufa [1993] No. 9.
—————————————————————————
Regional and local laws and regulations on local executive governance
Implementing measures\33\ provide for the composition of residents’
committees, which are the most basic autonomy organization of the
people. Measures also relate to the election of representatives of the
TAR to the National People’s Congress and people’s congresses at all
levels. Representatives of the TAR on the National People’s Congress
and the representatives on the people’s congresses of the autonomous
regions or cities are to be elected by the lower-level people’s
congresses.\34\ Voters shall directly elect the representatives on the
people’s congresses of cities, areas
directly under the control of the municipalities, counties, autonomous
counties, villages, ethnic villages, and townships.\35\ The standing
committees of the people’s congresses of autonomous areas or cities are
to manage the election of representatives to the people’s congresses at
their level, and the lower level administrative subdivisions are to
establish election committees to manage the election of representatives
to the people’s congresses at their levels.\36\ The Election Measures
set forth the number of representatives serving in the various levels
of people’s congresses in the TAR.\37\ If other minorities live in
concentrated areas in the TAR, then they also are to have
representatives sitting on the people’s congresses in accordance with
the national election law.\38\ The Election Measures provide for the
creation of electoral districts, voter registration, nomination of
candidates, and election procedures. If a person has the right to
directly elect a representative, he or she shall exercise his or her
vote by presenting either an identification or voting card. If more
than half of the electorate vote, then the vote is valid, and a
candidate will be considered to be elected if he or she receives a
majority of votes.\39\ Where the people’s Congress at the county level
and above elect the representatives to the next level people’s
congress, the former shall convene a meeting, and a candidate will be
considered to be elected if he or she receives a majority of the votes
of all of the representatives.\40\ Elections are to be conducted by
secret ballot.\41\ The Election Measures also provide that all Chinese
citizens 18 or older have the right to vote and to be elected to the
people’s congresses.\42\ All documents used in elections shall be in
both Chinese and Tibetan.\43\ It is an offense, among other things, to
incite ethnic relations, destroy the unity of the peoples, or instigate
the separation of peoples.\44\ Meetings of the people’s Congress of the
TAR must be conducted in both Chinese and Tibetan.\45\
—————————————————————————
\33\ Implementing Measures of the TAR for the Law of the People’s
Republic of China on the Organization of Urban Residents Committees
(adopted on December 26, 1993, by the Seventh Session of the Standing
Committee of the Sixth TAR People’s Congress), and Detailed Rules for
the Implementation of Elections of Representatives of People’s
Congresses at All Levels Within the Tibet Autonomous Region (adopted on
April 18, 1981, by the 5th Session of the Standing Committee of the
Third TAR People’s Congress; as amended through the September 28, 1995,
by the 16th Session of the Standing Committee of the Sixth TAR People’s
Congress in accordance with the Decision of the 12th Session of the
Standing Committee of the Eight National People’s Congress on February
28, 1995, on the Amendment to the Law of the People’s Republic of China
on the Election of the National People’s Congress and the People’s
Congresses at All Levels in the Localities) (the “Election
Measures”).
\34\ Election Measures, 2.
\35\ Election Measures, 2.
\36\ Election Measures, 8.
\37\ Election Measures, 13.
\38\ Election Measures, 18.
\39\ Election Measures, 44, 52.
\40\ Election Measures, 45, 52.
\41\ Election Measures, 46.
\42\ Election Measures, 3.
\43\ Election Measures, 20.
\44\ Election Measures, 59(2).
\45\ Procedural Rules for the People’s Congress of the Tibet
Autonomous Region (adopted on
August 7, 1989, by the Second Session of the Fifth TAR People’s
Congress and amended on January 20, 2002, by the 24th Session of the
Standing Committee of the Seventh TAR People’s Congress), 4.
—————————————————————————
National laws and regulations on police and security
Section 120 of the Constitution provides that the autonomy agencies
of ethnic autonomous areas may, upon the approval of the State Council
and in accordance with the military system of the State and the needs
of the locality, organize public security forces for the local area to
safeguard social and public order.
Regional and local laws and regulations on police and security
The TAR and various prefectures in Qinghai Province have adopted
regulations to implement the Decision of the Standing Committee of the
National People’s Congress on Strengthening the Comprehensive
Administration of Social and Public Order. The regulations set forth a
framework to combat crime, specifying the roles of various agencies
such as the courts, people’s procuracies, public security bureaus,
state security agencies, judicial agencies, and the people’s armed
police, as well as agencies, social groups, and enterprises. The goal
is to combat crime by organizing social forces to use political,
economic, legal, administrative, cultural, educational, and other
measures to attack, prevent, and reduce crime and safeguard social
order and stability. The local regulations for the TAR and the Haixi
prefecture require the “relevant departments” to “strengthen the
management” of religious affairs.\46\
—————————————————————————
\46\ Regulations of the Tibet Autonomous Region on the
Comprehensive Administration of Public Security (effective August, 18,
1994; adopted on August 18, 1994, by the 10th Session of the Standing
Committee of the Sixth TAR People’s Congress and amended on May 9,
2002, by the 26th Session of the Standing Committee of the Seventh TAR
People’s Congress), 14; Regulations of Haixi Mongolian and Tibetan
Autonomous Prefecture on the Comprehensive Administration of Public
Security (effective October 1, 1995; adopted on April 25, 1995, by the
Sixth Session of the Standing Committee of the Ninth People’s Congress
of the Haixi Mongolian and Tibetan Autonomous Prefecture of Qinghai
Province and approved on July 29, 1995, by the 19th Session of the
Standing Committee of the Eighth People’s Congress of Qinghai
Province), 26.
—————————————————————————
Regional and local laws and regulations on minorities’ rights
The Law of the People’s Republic of China on Assemblies,
Processions and Demonstrations and the implementing measures of the
TAR\47\ and Lhasa Municipality\48\ require permits to be issued by the
competent authorities before assemblies, processions, and
demonstrations may be held. Competent authorities include public
security bureaus of the locality, municipality, or county.\49\ No
person may use religious or other activities to initiate or organize
any assemblies, processions, or demonstrations that endanger the unity
of the State or destroy the unity of ethnic groups or social
stability.\50\ Activities that oppose the Constitution, harm the State,
instigate division among ethnic groups, or endanger public security and
order are prohibited.\51\ Citizens may not initiate, organize, or
participate in any assembly, procession, or demonstration held in
cities outside the place where they reside. Without the approval of the
competent authorities, foreign nationals may not participate in any
assemblies, processions, or demonstrations organized by citizens in the
TAR.\52\ Measures adopted in the TAR are also intended to implement the
national legislation for the protection of women, minors, and disabled
persons. Guarantees are established to promote the equality and rights
of women and the disabled and set forth the legal obligations of
parents to minors and the obligation of guardians, schools, social
organizations, and the judicial system.\53\
—————————————————————————
\47\ Implementing Measures of the Tibet Autonomous Region for the
Law of the People’s Republic of China on Assemblies, Processions and
Demonstrations (adopted on May 15, 1990, by the 10th Session of the
Standing Committee of the Fifth TAR People’s Congress).
\48\ Implementing Measures of Lhasa Municipality for the Law of the
People’s Republic of China on Assemblies, Processions and
Demonstrations(effective May 15, 1990; adopted on May 5, 1990, by the
17th Session of the Standing Committee of the Fifth People’s Congress
of Lhasa Municipality and approved on May 15, 1990, by the 10th Session
of the Standing Committee of the Fifth TAR People’s Congress).
\49\ Supra note 53, 5; supra note 54, 4.
\50\ Supra note 53, 4; supra note 54, 5.
\51\ Law of the People’s Republic of China on Assemblies,
Processions and Demonstrations, Article 12; supra note 54, 12.
\52\ Supra note 53, 13, 23; supra note 54, 25.
\53\ See Implementing Measures of the Tibet Autonomous Region for
the Law of the People’s Republic of China on the Protection of the
Rights and Interests of Women (adopted on August 18, 1994, by the 10th
Session of the Standing Committee of the Sixth TAR People’s Congress
and amended on March 29, 1997, by the 23rd Session of the Standing
Committee of the Sixth TAR People’s Congress), Implementing Measures of
the Tibet Autonomous Region for the Law of the People’s Republic of
China on the Protection of Minors (adopted on November 23, 1994, by the
12th Session of the Standing Committee of the Sixth TAR People’s
Congress, amended on March 29, 1997, by the 23rd Session of the
Standing Committee of the Sixth TAR People’s Congress, and further
amended on November 25, 1999, by the 10th Session of the Standing
Committee of the Seventh TAR People’s Congress), and Implementing
Measures of the Tibet Autonomous Region for the Law of the People’s
Republic of China on the Protection of Disabled Persons (effective
April 1, 1998; adopted on January 9, 1998, by the 28th Session of the
Standing Committee of the Sixth TAR People’s Congress and amended on
July 26, 2002, by the 27th Session of the Standing Committee of the
Seventh TAR People’s Congress).
—————————————————————————
ECONOMY

National laws and regulations on economic rights
The PRC Autonomy Law grants autonomy agencies the authority to
govern matters that affect the economic conditions of minority areas
under their administration. Under the PRC Autonomy Law, autonomy
agencies have the authority to determine the use, ownership, and
protection of grasslands and forests; manage and protect natural
resources; and undertake local infrastructure projects. Autonomy
agencies also have the authority to develop foreign economic and trade
activities and manage local finances, including contingency funds,
taxation, banks, and credit cooperatives.
The PRC Autonomy Law stipulates that:

(a) The State shall formulate preferential policies to support the
development of foreign economic and trade activities of
autonomous areas, expand the foreign trade powers of production
enterprises in the autonomous areas, and encourage the export
of locally produced products. Autonomous areas may open foreign
trade ports with the approval of the State Council. Areas that
share a border with foreign countries may, upon the approval of
the State Council, develop border trade. Such areas shall enjoy
preferential policies of the State with respect to their
foreign economic and trade activities.\54\
—————————————————————————
\54\ 31.
—————————————————————————
(b) The State is to formulate preferential policies to attract and
encourage the investment of domestic and foreign capital in
ethnic autonomous areas. In determining national social and
economic development plans, the “higher level state agencies”
shall give attention to the special characteristics and needs
of ethnic autonomous areas.\55\ In accordance with uniform
plans and market demand, the State shall give priority to
natural resource development projects and infrastructure
projects in ethnic autonomous areas. In major infrastructure
projects, the State will “appropriately” increase the
proportion of its investment and the ratio of “policy-nature”
bank loans. When arranging infrastructure projects in ethnic
areas, the State may reduce the amount of matching funds that
an ethnic area must provide or exempt them entirely.\56\
—————————————————————————
\55\ 55.
\56\ 56.
—————————————————————————
(c) “Higher level state agencies” shall support the improvement of
conditions for the production for agriculture, animal
husbandry, and forestry industries, as well as water,
transportation, energy, communications, and other
infrastructure.\57\
—————————————————————————
\57\ 63.
—————————————————————————
(d) When the State develops natural resources or carries out
construction in autonomous regions, the State shall consider
the interests of the autonomous area and make arrangements that
benefit the economy of the autonomous area, with consideration
to the production and lives of local minorities. The State
shall take measures to give compensation for natural resources
that are transported out of autonomous areas.\58\
—————————————————————————
\58\ 65.
—————————————————————————
(e) Autonomy agencies have the authority to manage and protect natural
resources in autonomous areas.\59\
—————————————————————————
\59\ 28.

The Ministry of Labor has implemented preferential labor policies
for minority
autonomous areas such as lowering minimum standards for recruitment,
giving minorities priority in employment if all conditions are equal,
and giving priority to hiring minorities to fill jobs created by
natural attrition. In addition, the Ministry has sought to encourage
minority students to take entrance exams for vocational training
schools and to require vocational schools in minority areas to enroll a
“certain percentage” of minority students and “appropriately”
modify the admissions score standards.\60\
—————————————————————————
\60\ Letter of the General Office of the Ministry of Labor on
Giving Special Consideration to Minority Areas in respect of Labor
Matters (Laobantinghanzi (1991) No. 11, April 8, 1991.
—————————————————————————
The Provisions on the Management of Subsidies for Minority
Areas\61\ authorize subsidies for minorities in the national budget to
meet special expenses of minorities for promoting production, culture,
education, medical care, and health.
—————————————————————————
\61\ Issued on July 7, 1979, by the State Ethnic Affairs Commission
and the Ministry of Finance.
—————————————————————————
Regional and local laws and regulations on economic rights
The regional and local autonomy regulations that implement the PRC
Autonomy Law in the autonomy areas in Qinghai, Sichuan, and Yunnan
Provinces (specifically the prefectures of Yushu, Guoluo, Haixi, Ganzi,
A Ba, and Qiang, Diqing and Muli County) contain provisions on economic
rights that essentially mirror the corresponding provisions in the
national PRC Autonomy Law. Autonomy agencies have autonomy in arranging
and managing the economic development and the finances of the
autonomous area. The autonomy agencies are mandated to actively
organize the procurement and supply of goods that are specially
required by minorities and to give support and consideration in the
form of “capital, technology, and the supply of raw materials.” \62\
—————————————————————————
\62\ E.g., Autonomy Regulations of Hainan Tibetan Autonomous
Prefecture (effective October 1, 1987; adopted on April 25, 1987, by
the Second Session of the Eighth People’s Congress of the Hainan
Tibetan Autonomous Prefecture and approved on July 18, 1987, by the
27th Session of the Standing Committee of the Sixth People’s Congress
of Qinghai Province) (the “Hainan Autonomy Regulations”), 30 and
35; Autonomy Regulations of A Ba Tibetan and Qiang Autonomous
Prefecture (effective July 12, 1986; adopted on May 21, 1986, by the
Fourth Session of the Fifth People’s Congress of the A Ba Tibetan
Autonomous Prefecture and approved on July 12, 1986, by the 20th
Session of the Standing Committee of the Sixth People’s Congress of
Sichuan Province; adopted on January 5, 1988, by the First Session of
the Sixth People’s Congress of the A Ba Tibetan and Qiang Autonomous
Prefecture and approved on March 16, 1988, by the 2nd Session of the
Standing Committee of the Seventh People’s Congress of Sichuan
Province) (the “A Ba Autonomy Regulations”), 37.
—————————————————————————
Regional and local laws and regulations on natural resources
Regulations of the TAR provide for the “rational development” and
use of mineral resources.\63\ Entities that develop mineral resources
in the TAR are to take into
account the interests of the people in the mining area and promote
economic development and social progress in the area.\64\ All levels of
people’s governments are to actively encourage and attract mining
activities in remote and impoverished areas.\65\ Other regulations
protect scenic areas, lakes, rivers, and drinking water sources;
control air and noise pollution; and provide other environmental
protections.\66\
—————————————————————————
\63\ Regulations of the Tibet Autonomous Region on the Management
of Mineral Resources (effective July 1, 1999; adopted on April 1, 1999,
by the 6th Session of the Standing Committee of the Seventh TAR
People’s Congress and amended on January 20, 2002, by the 24th Session
of the Standing Committee of the Seventh TAR People’s Congress), 3.
\64\ Supra note 69, 4.
\65\ Supra note 69, 5.
\66\ Regulations of the Tibet Autonomous Region on the Protection
of the Environment (effective September 1, 2003; adopted on July 24,
2003, by the Fifth Session of the Standing Committee of the Eighth TAR
People’s Congress).
—————————————————————————
The regulations of Tianzhu County in Gansu Province require that
mining programs must implement policies relating to ethnic groups as
well as laws relating to workers of an ethnic group and are to respect
the minorities’ traditions and religion and safeguard and develop the
unity of ethnic groups.\67\ Prefecture regulations give priority to the
prefecture regarding the rational development and use of natural
resources.\68\ In Gannan prefecture of Gansu Province, a portion of the
gold or silver produced may be used by ethnic minorities in the area to
make decorative products.\69\
—————————————————————————
\67\ Regulations of Tianzhu Tibetan Autonomous County of Gansu
Province on the Management of Mineral Resources (effective March 1,
1995; adopted on March 20, 1994, by the Second Session of the
Thirteenth People’s Congress of Tianzhu Tibetan Autonomous County,
approved on January 21, 1995, by the 13th Session of the Standing
Committee of the Eighth People’s Congress of Gansu Province, and
amended on March 26, 1999, by the 9th Session of the Standing Committee
of the Ninth People’s Congress of Gansu Province), 4.
\68\ E.g., A Ba Autonomy Regulations, 25; Autonomy Regulations of
Ganzi Tibetan Autonomous Prefecture (effective July 12, 1986; adopted
on June 4, 1986, by the Third Session of the Fifth People’s Congress of
the Ganzi Tibetan Autonomous Prefecture and approved on July 12, 1986,
by the 20th Session of the Standing Committee of the Sixth People’s
Congress of Sichuan Province), 29; Autonomy Regulations of Muli
Tibetan Autonomous County (effective March 13, 1992; adopted on March
18, 1990, by the First Session of the Seventh People’s Congress of the
Muli Tibetan Autonomous County and approved on March 13, 1992, by the
28th Session of the Standing Committee of the Seventh People’s Congress
of Sichuan Province), 24.
\69\ Regulations of Gannan Tibetan Autonomous Prefecture of Gansu
Province on the Management of Mineral Resources (adopted on March 30,
1999, by the Second Session of the Twelfth People’s Congress of Gannan
Tibetan Autonomous Prefecture and approved on May 26, 2000, by the 16th
Session of the Standing Committee of the Ninth People’s Congress of
Gansu Province), 24.
—————————————————————————
CULTURE

National laws and regulations on education
Official opinions and notices\70\ direct public institutions to
take measures aimed at ensuring an adequate education for minorities.
To this end, schools may waive or lower tuition and other fees for
minority students who have special hardships; minority young people
with work experience or who have excelled should have priority in
admission into colleges and universities; preparatory classes at
colleges and universities should be available to minorities; students
who successfully complete the one year preparatory program and who have
“a good political outlook” should be admitted to colleges or
universities; threshold admission scores may be lowered for minority
students; central government subsidies should be provided for the
development of vocational education for minorities; schools for
teachers are permitted to have quotas for the admission of minority
students from ethnically commingled areas and minority graduates of
such schools are to be given priority in assignments to schools for
minorities or schools that have a large minority student population;
medical schools in minority areas must guarantee that an
“appropriate” number of minority students are accepted each year such
that the ratio of minority students to non-minority students will
“eventually” reflect the population ratio in the minority area; and
medical schools in economically developed provinces should be paired up
with those in minority areas–encouraging visiting teachers from
minority areas to conduct advanced study and research and sending
specialists to minority areas to teach, hold seminars, and train local
professionals. For example, Beijing should support Inner Mongolia,
Shandong should support Qinghai, Tianjin should support Gansu, Shanghai
should support Yunnan and Ningxia, and the entire country should
support Tibet.
—————————————————————————
\70\ E.g., Opinion on Strengthening Medical Education in Minority
Areas (effective May 26, 1980, issued by the Ministry of Health, the
State Ethnic Affairs Commission and the Ministry of Education), Opinion
on Strengthening the Vocational Skills Education of Minorities and
Minority Areas (effective April 8, 1992, Jiaozhi [1992] No. 8, issued
by the State Education Commission), Opinion on the Recruitment of
Excellent Minority Youth into Colleges and Universities (effective
October 16, 1992, Jiaominting [1992] No. 13, issued by the Office of
the State Education Commission), Opinion on Supporting the Poor through
Education in the 143 Impoverished Minority Counties Throughout the
Country (effective October 19, 1992, Jiaominting [1992] No. 12, issued
by the Office of the State Education Commission), Opinion on
Strengthening Minority Education in Areas Where Minorities are
Commingled (effective November 2, 1992, Jiaominting [1992] No. 15,
issued by the Office of the State Education Commission), Opinion on
Strengthening Minority Preparatory Classes in Ordinary Colleges and
Universities (effective November 17, 1992, Jiaominting [1992] No. 17,
issued by the Office of the State Education Commission), Notice on
Circulating the Guide on the Development of Electronic Education
Systems for Minorities and in Minority Areas (effective March 9, 1993,
Jiaodian [1993] No. 2, issued by the State Education Commission and the
State Ethnic Affairs Commission), Notice on Use of Uniform Textbooks
for Students in Minority Preparatory Classes (effective May 12, 1993,
Jiaominting [1993] No. 10, issued by the Office of the State Education
Commission), Notice on Fulfilling Recruitment Plans for Minority
Classes in Universities Directly Administered by the Ministry of
Education (dated May 19, 1999, issued by the Ministry of Education),
Opinion on Accelerating Vocational Education Reform and Development for
Minorities and Minority Areas (effective July 28, 2000, Minweifa [2000]
No. 199, issued by the State Ethnic Affairs Commission and the Ministry
of Education).
—————————————————————————
With respect to medical education, special attention is to be given
to the development of minority medical studies, Mongolian, Tibetan, and
Uighur medical studies shall be performed in Inner Mongolia, Qinghai,
and Xinjiang, respectively.\71\
—————————————————————————
\71\ Opinion on Strengthening Medical Education in Minority Areas
(effective May 26, 1980, issued by the Ministry of Health, the State
Ethnic Affairs Commission and the Ministry of Education), 4.
—————————————————————————
Regional and local laws and regulations on education
The PRC Autonomy Law provides that the autonomy agencies have the
authority, in accordance with the education policies, laws, and
regulations of the State, to determine the education plans of the
locality, establishing all types of schools, the school system, the
form of classes, the curriculum, the language of instruction, and the
method of recruiting students.\72\ Public schools for ethnic minorities
shall primarily be boarding schools with special financial assistance
targeting schools in minority pastoral areas and mountainous regions
where minorities are dispersed and there are economic difficulties. The
local financial departments are to “resolve” the funding for
establishing schools and for providing financial aid. If they have
difficulties, then the higher level financial departments are to grant
subsidies.\73\ Schools and other educational institutes that focus on
minority students and have the
resources shall use textbooks in minority languages. In addition, the
minority language shall be the language of instruction. Chinese classes
will be offered, depending on the circumstances in the lower grades of
elementary schools or middle schools. Putonghua and standardized
Chinese characters will be promoted.\74\ Regional and local laws and
regulations that govern education have been formulated to implement the
Law of the People’s Republic of China on Compulsory Education, which
requires nine years of compulsory education. Religion may not be
advocated in schools, and superstitious thinking may not be
propagated.\75\ In the TAR and Gansu, Qinghai, and Sichuan Provinces,
all children, including minority children, who have reached the age of
six or seven are required to enroll in school and receive their
compulsory education for a prescribed number of years, which may be
less than the nine year goal depending on circumstances in the
locality.\76\ In the TAR and Gansu, Qinghai, and Sichuan Provinces,
laws and regulations ensure that minority students receive instruction
in both their minority language and Chinese.\77\ In some of these
provinces, regulations ensure that students use textbooks in minority
languages.\78\ In the Hainan prefecture of Qinghai, teacher training
schools for minorities are to be established for training elementary
school teachers. The teaching schools are to strengthen the teaching of
the Chinese and Tibetan languages and other subjects so that student
elementary teachers can master both Chinese and Tibetan and other
required subjects.\79\
—————————————————————————
\72\ 36.
\73\ 37.
\74\ Ibid.
\75\ E.g., Measures for the Implementation of the Law of the
People’s Republic of China on Compulsory Education (adopted on February
25, 1994, by the 8th Session of the Standing Committee of the Sixth
People’s Congress of the TAR, and amended on November 23, 2001, by the
23rd Meeting of the Standing Committee of the Seventh People’s Congress
of the TAR) (the “TAR Education Regulations”), 6; Measures of
Qinghai Province for the Implementation of the PRC Compulsory Education
Law (effective October 1, 1988; adopted on September 2, 1988, by the
4th Session of the Standing Committee of the Seventh People’s Congress
of Qinghai Province and amended on August 28, 1992, by the 28th Session
of the Standing Committee of the Seventh People’s Congress of Qinghai
Province) (the “Qinghai Education Regulations”), 11.
\76\ E.g., TAR Education Regulations, 7; Measures of Gansu
Province for the Implementation of the PRC Compulsory Education Law
(adopted on September 3, 1990, by the 16th Session of the Standing
Committee of the Seventh People’s Congress of Gansu Province; amended
on May 28, 1997, by the 27th Session of the Standing Committee of the
Eighth People’s Congress of Gansu Province; and further amended on
March 30, 2002, by the 27th Session of the Standing Committee of the
Ninth People’s Congress of Gansu Province), 8; Qinghai Education
Regulations, 5; Supplementary Provisions of A Ba Tibetan and Qiang
Autonomous Prefecture to Implement the Compulsory Education Regulations
of Sichuan Province (effective April 6, 1998; adopted on December 13,
1997, by the First Session of the Eighth People’s Congress of the A Ba
Tibetan and Qiang Autonomous Prefecture and approved on April 6, 1998,
by the 2nd Session of the Standing Committee of the Ninth People’s
Congress of Sichuan Province) (the “A Ba Education Regulations”),
3; Provisions of Ganzi Tibetan Autonomous Prefecture for the
Implementing Regulations of Sichuan Province on Compulsory Education
(effective May 28, 1991; adopted on December 21, 1990, by the 11th
Session of the Standing Committee of the Sixth People’s Congress of
Ganzi Tibetan Autonomous Region and approved by the 23rd Session of the
Standing Committee of the Seventh People’s Congress on May 28, 1991)
(the “Ganzi Education Regulations”), 3.
\77\ E.g., Tibet Education Regulations, 20; Gansu Education
Regulations, 5; Qinghai Education Regulations, 10; A Ba Qiang
Education Regulations, 5; Ganzi Education Regulations, 8.
\78\ E.g., Minority Education Regulations of the Hainan Tibetan
Autonomous Prefecture (effective October 1, 1994; adopted on March 30,
1994, by the 6th Session of the Standing Committee of the Ninth
People’s Congress of the Hainan Tibetan Autonomous Prefecture of
Qinghai Province, approved on July 30, 1994, by the 11th Session of the
Standing Committee of the Eighth People’s Congress of Qinghai Province;
adopted on November 30, 1997, by the Third Session of the Tenth
People’s Congress of Hainan Tibetan Autonomous Prefecture and amended
and approved on April 3, 1998, by the 1st Session of the Standing
Committee of the Ninth People’s Congress of Qinghai Province), 11.
\79\ Minority Education Regulations of the Hainan Tibetan
Autonomous Prefecture (effective October 1, 1994; adopted on March 30,
1994, by the 6th Session of the Standing Committee of the Ninth
People’s Congress of the Hainan Tibetan Autonomous Prefecture of
Qinghai Province, approved on July 30, 1994, by the 11th Session of the
Standing Committee of the Eighth People’s Congress of Qinghai Province;
adopted on November 30, 1997, by the Third Session of the Tenth
People’s Congress of Hainan Tibetan Autonomous Prefecture and amended
and approved on April 3, 1998, by the 1st Session of the Standing
Committee of the Ninth People’s Congress of Qinghai Province), 26.
—————————————————————————
No person may carry out religious activities or “advocate”
religion to students in elementary or high schools.\80\ Other
regulations prohibit school age children from entering temples and ban
religious organizations from recruiting them for religious study.\81\
—————————————————————————
\80\ E.g., TAR Education Regulations, 6; Qinghai Education
Regulations, 11; A Ba Education Regulations, 6.
\81\ E.g., Ganzi Education Regulations, 6; Compulsory Education
Regulations of Yushu Tibetan Autonomous Prefecture (effective November
23, 1994; adopted on May 13, 1994, by the Fifth Session of the Eighth
People’s Congress of the Yushu Tibetan Autonomous Prefecture of Qinghai
Province and approved on November 23, 1994, by the 13th Session of the
Standing Committee of the Eighth People’s Congress of Qinghai
Province), 13; Compulsory Education Regulations of the Guoluo Tibetan
Autonomous Prefecture (effective October 1, 1995; adopted by the Sixth
Session of the Ninth People’s Congress of the Guoluo Tibetan Autonomous
Prefecture of Qinghai Province and approved by the 19th Session of the
Standing Committee of the Eighth People’s Congress of Qinghai Province
on July 29, 1995), 12.
—————————————————————————
National laws and regulations on language
Official notices and national laws provide for the development of
minority languages\82\ and indicate that all ethnic groups have the
freedom to use and develop their own oral and written language.\83\
Autonomy agencies of ethnic autonomous areas are to use the local
commonly used language or languages in performing their duties in
accordance with the stipulations of the autonomy regulations of the
ethnic autonomous areas.\84\ Han cadres working in minority areas are
required to learn the local minority language, and minority cadres must
learn Chinese.\85\ All ethnic groups are encouraged to learn each
other’s languages.\86\ Ethnic groups that do not have their own written
language or standard written language are encouraged to choose an
existing written language.\87\ Schools with mostly minority students
are required to use textbooks in the minority language of the students.
While the language of instruction will be the minority language,
Chinese language classes are to be offered at the appropriate grade and
the use of Putonghua is to be promoted.\88\ For the medical education
of minorities under the Opinion on Strengthening Medical Education in
Minority Areas,\89\ minority languages may be used provided that the
schools have adequate resources. Departments involved in publishing
have been instructed to actively support the requests of ethnic groups
with a standardized written language to publish books in ethnic
languages, regardless of the size of the ethnic group. The budget for
minority publishing is to be increased on an annual basis, and efforts
should be made to increase printing and expand the distribution of
minority publications.\90\
—————————————————————————
\82\ E.g., Report of the State Ethnic Affairs Commission on Further
Doing a Good Job in Respect of Minority Languages (issued on April 30,
1991, by the State Ethnic Affairs Commission and transmitted on June
19, 1991, by the State Council) (“SEAC Report”), PRC Autonomy Law.
PRC Autonomy Law, 10; Regulations on the Work on Urban Ethnic Groups
(effective September 15, 1993; approved on August 29, 1993, by the
State Council), 20.
\83\ Constitution, Article 4 ; Law of the People’s Republic of
China on the Commonly Used Oral and Written Language of the State
(effective January 1, 2001; adopted on October 31, 2000, by the 18th
Session of the Standing Committee of the Ninth National People’s
Congress and published on October 31, 2000, by Decree No. 137 of the
People’s Republic of China), 8; PRC Autonomy Law, 10.
\84\ Constitution, 121.
\85\ E.g., Hainan Autonomy Regulations, 56.
\86\ SEAC Report.
\87\ Ibid.
\88\ PRC Autonomy Law, 37.
\89\ Effective May 26, 1980, issued by the Ministry of Health, the
State Ethnic Affairs Commission, and the Ministry of Education, 1.
\90\ Report of the State Ethnic Affairs Commission and the State
Publishing Bureau on Strengthening the Publication of Books in Minority
Languages (transmitted on March 14, 1981, by the State Council).
—————————————————————————
Article 134 of the Constitution provides that citizens of all
ethnic groups have the right to use their own minority language in
conducting litigation. In addition, the people’s courts and the
people’s procuracies are to provide translators for litigants who are
not familiar with the locally used language. In hearing cases in areas
where minorities are concentrated or where several minorities reside,
the locally used language is to be used. Complaints, judgments,
notices, and other written documents shall be in the locally used
language or languages in accordance with actual needs.
Regional and local laws and regulations on language
Regional and local laws and regulations guarantee the freedom of
Tibetan minorities to use and develop their own language.\91\ They also
stipulate that the languages of all ethnic groups are equal.\92\ All
official seals, forms of identification, and signs of regional and
local government agencies, as well as signage for public facilities,
advertisements, place names, street signs, and so forth are required to
be in the local minority language.\93\ Judicial agencies and courts at
all levels are required to use minority languages in hearing or
investigating cases and to provide litigants with interpreters.\94\
Minorities also have the right to use their minority language when
undertaking “letters to and visits with officials.” \95\ Other
minority language protections include laws and regulations providing
that individuals who speak both Tibetan and Chinese enjoy preferential
treatment with respect to hiring for government positions and\96\ that
Tibetan language broadcasting, television programs, and other media be
developed.\97\ Election materials may be in minority languages,\98\ and
product packaging and product information for goods that are
manufactured in the TAR or autonomous prefectures for sale in those
areas are to be written in Chinese and Tibetan.\99\
—————————————————————————
\91\ E.g., Hainan Autonomy Regulations, 7; Haibei Autonomy
Regulations, 8; A Ba Autonomy Regulations, 6.
\92\ E.g., Provisions of the TAR on the Study, Use and Development
of the Tibetan Language (adopted on July 9, 1987, by the Fifth Session
of the Fourth TAR People’s Congress and amended on May 22, 2002, by the
Fifth Session of the Seventh TAR People’s Congress) (the “TAR Language
Regulations”), 2; Working Regulations of the Gannan Tibetan
Autonomous Prefecture of Gansu Province on the Tibetan Language
(approved on June 1, 1996, by the 21st Session of the Standing
Committee of the Eighth People’s Congress of Gansu Province). (the
“Gannan Language Regulations”), 2; Working Regulations of the
Hainan Tibetan Autonomous Prefecture on the Tibetan Language (effective
on June 28, 1990, adopted on May 20, 1989, by the Fifth Session of the
Eighth People’s Congress of the Hainan Tibetan Autonomous Prefecture
and approved on June 28, 1990, by the 15th Session of the Standing
Committee of the Seventh People’s Congress of Qinghai Province), (the
“Hainan Language Regulations”), 2.
\93\ E.g., TAR Language Regulations, 11; Gannan Language
Regulations, 14; Hainan Language Regulations, 10; Working
Regulations of the Ganzi Tibetan Autonomous Prefecture on the Use of
the Tibetan Language (adopted on November 21, 1997, by the Fifth
Session of the Seventh People’s Congress of the Ganzi Tibetan
Autonomous Prefecture and approved on April 6, 1998, by the 2nd Session
of the Standing Committee of the Ninth People’s Congress of Sichuan
Province) (the “Ganzi Language Regulations”), 18.
\94\ E.g., TAR Language Regulations, 5; Gannan Language
Regulations, 12; Hainan Language Regulations, 16; Ganzi Language
Regulations, 10.
\95\ The “letters and visits” system is a petition system that
allows individuals to make complaints or present grievances to state
agencies and officials by writing letters, making phone calls, or
visiting such agencies. E.g., Hainan Language Regulations, 17, Ganzi
Language Regulations, 11.
\96\ TAR Language Regulations, 10; Working Regulations of the
Tianzhu Tibetan Autonomous County of Gansu Province on the Tibetan
Language (adopted on January 18, 1999, by the Second Session of the
Fourteenth People’s Congress of the Tianzhu Tibetan Autonomous County
and approved on March 26, 1999, by the 9th Session of the Standing
Committee of the Ninth People’s Congress of Gansu province), 8.
\97\ TAR Language Regulations, 9; Hainan Language Regulations,
20; Ganzi Language Regulations, 15.
\98\ Ganzi Language Regulations, 9; Working Regulations of the
Guoluo Tibetan Autonomous Prefecture on the Tibetan Language (effective
July 17, 1993, adopted on April 24, 1993, by the Fourth Session of the
Ninth People’s Congress of Guoluo Tibetan Autonomous Prefecture and
approved on July 17, 1993, by the 4th Session of the Standing Committee
of the Eighth People’s Congress of Qinghai Province) (the “Guoluo
Language Regulations”), 13.
\99\ TAR Language Regulations, 12; Gannan Language Regulations,
15; Hainan Language Regulations, 11; Ganzi Language Regulations,
18.
—————————————————————————
National laws and regulations on cultural traditions
Official notices and explanations\100\ that govern cultural
traditions protect certain traditions, particularly ancient texts as
well as the oral and funeral traditions of minority groups. The
preservation, collection, and organization of ancient texts of ethnic
groups have been deemed a priority by the State Ethnic Affairs
Commission, which identifies such texts as part of China’s cultural
heritage.\101\ Relevant departments have been instructed to create the
necessary working and living conditions for specialists to organize
ancient texts.\102\ The provinces, autonomous regions, and
municipalities directly under the central authorities are to organize
people to collect and save oral traditions.\103\ The right of certain
minority groups to retain or “reform” their own funeral traditions is
also respected. Although subject to certain restrictions for the
protection of public health such as the prohibition on moving and the
requirement for immediate sterilization and cremation of bodies of
persons who have died of the bubonic plague, cholera, or anthrax, no
group may be forced to carry out cremations.\104\
—————————————————————————
\100\ Notice of the Office of the State Council Transmitting the
Request of the State Ethnic
Affairs Commission on Saving and Organizing Ancient Minority Books
(April 19, 1984) (the “Ancient Text Notice”); Explanation Regarding
the Provisions of the Funeral Management Regulations of the State
Council Relating to Respect of Minority Funeral Traditions (effective
June 10, 1999, issued by the Ministry of Civil Affairs, the State
Ethnic Affairs Commission, and the Ministry of Health; Minshifa [1999]
No. 17) (the “Burial Provisions”).
\101\ Ancient Text Notice, Preamble.
\102\ Ancient Text Notice, Preamble.
\103\ Ancient Text Notice, Section 2(5).
\104\ Burial Provisions, 1, 2 and 3.
—————————————————————————
Regional and local laws and regulations on cultural traditions
Regional and local laws and regulations that govern cultural
traditions vary. The development of Tibetan medical undertakings is to
be included in the national economic and social development plans, as
well as regional public health plans.\105\1 Public health institutions
are required to have Tibetan medical personnel, instruments and
equipment, and a Tibetan medical pharmacy.\106\ Some regulations also
encourage the development of traditional Tibetan medicine, as well as
the protection and management of herb, plant, animal, and mineral
resources used in the production of Tibetan medicines.\107\ The
people’s governments at all levels in the Gannan prefecture of Gansu
Province are required to protect and promote Tibetan and traditional
Chinese medicine.\108\ Other regulations call for the promotion of
Tibetan medical studies, the development of Tibetan medical theory and
practice, and the gradual regularization, scientificization, and
modernization of Tibetan medical work.\109\
—————————————————————————
\105\ Regulations of Qinghai Province on the Development of
Chinese, Tibetan and Mongolian Medicine (effective June 1, 2002;
adopted on March 29, 2002, by the 29th Session of the Standing
Committee of the Ninth People’s Congress of Qinghai Province) (the
“Qinghai CTM Medicine Regulations”), 7; Regulations of Qinghai
Province on the Development of Chinese, Tibetan and Mongolian Drugs
(effective October 1, 2002; adopted on July 29, 2002, by the 31st
Session of the Standing Committee of the Ninth People’s Congress of
Qinghai Province) (the “Qinghai CTM Drug Regulations”), 4;
Regulations of the Gannan Tibetan Autonomous Prefecture of Gansu
Province Regarding the Development of Tibetan Medicine (approved on
September 28, 2001, by the 24th Session of the Standing Committee of
the Ninth People’s Congress of Gansu Province) (the “Gannan Tibetan
Medicine Regulations”), 5.
\106\ Gannan Tibetan Medicine Regulations, 11.
\107\ Qinghai CTM Drug Regulations, 11; Gannan Tibetan Medicine
Regulations, 10; Regulations of the Yushu Tibetan Autonomous
Prefecture on the Management of Tibetan Medicine (effective November 1,
1995, approved on May 14, 1995, by the Sixth Session of the Eighth
People’s Congress of the Yushu Tibetan Autonomous Prefecture of Qinghai
Province and adopted on September 22, 1995, by the 20th Session of the
Standing Committee of Eighth People’s Congress of Qinghai Province),
8, 9.
\108\ Regulations of the Gannan Tibetan Autonomous Prefecture of
Gansu Province Regarding the Development of Tibetan Medicine (approved
on September 28, 2001, by the 24th Session of the Standing Committee of
the Ninth People’s Congress of Gansu Province).
\109\ Qinghai CTM Regulations, 18, 22, 23; Gannan Tibetan
Medicine Regulations, 4.
—————————————————————————
Regional and local laws and regulations on the family
Regional and local laws and regulations that govern reproduction
allow for variations from the national “one couple, one child”
policy, which is not strictly enforced in minority regions. Although
the “one couple, one child” policy\110\ is advocated for Tibetans, a
second child is permitted, and a third child is controlled.\111\ If
both the husband and wife are state cadres, workers, or other non-rural
residents, then permission for a second child may be granted if either
the husband or wife is Tibetan or the first child has been evaluated as
a child with a nonhereditary illness and is unable to participate in
the normal labor force.\112\ With respect to Tibetan people who live in
pastoral villages or forested areas, the one child policy shall be
advocated, but second and third children are permitted.\113\ For the
third child, spacing between births is advocated. In the case of state
cadres, workers and other non-rural persons, and rural and pastoral
residents who wish to have a second child, the period shall be at least
three years.\114\ “Remedial measures” may deal with unplanned
pregnancies for couples who already have two children. In areas that
permit three children, when a couple already has three children, either
the husband or wife must undergo sterilization.\115\
—————————————————————————
\110\ Regulations of Gansu Province on Population and Family
Planning (adopted on November 28, 1989, by the 11th Session of the
Standing Committee of the Seventh People’s Congress of Gansu Province,
amended on September 29, 1997, and further amended on September 27,
2002), 21; Regulations of Qinghai Province on Population and Family
Planning (effective January 1, 2003; adopted on September 20, 2002, by
the 32nd Session of the Standing Committee of the Ninth People’s
Congress of Qinghai Province), 13; Adapting Provisions of the Gannan
Tibetan Autonomous Prefecture of Gansu Province on the Implementation
of the Regulations of Gansu Province on Family Planning (adopted on
September 2, 1999, by the 11th Session of the Standing Committee of the
Ninth People’s Congress of Gansu Province) (the “Gannan Family
Planning Regulations”); Measures of Ganzi Tibetan Autonomous
Prefecture on Family Planning (adopted on June 24, 1988, by the 27th
Session of the Standing Committee of the Fifth People’s Congress of
Ganzi Tibetan Autonomous Prefecture and approved on May 8, 1989, by the
9th Session of the Standing Committee of the Seventh People’s Congress
of Sichuan Province; amendment adopted on December 18, 1998, by the
35th Session of the Standing Committee of the Seventh People’s Congress
of Ganzi Tibetan Autonomous Prefecture and approved on June 1, 1999, by
the 9th Session of the Standing Committee of the Ninth People’s
Congress of Sichuan Province) (“Ganzi Family Planning Regulations”).
\111\ Gannan Family Planning Regulations, 3.
\112\ Gannan Family Planning Regulations, 4; Ganzi Family
Planning Regulations, 4.
\113\ Gannan Family Planning Regulations, 5; Ganzi Family
Planning Regulations, 14, 15.
\114\ Gannan Family Planning Regulations, 6; Ganzi Family
Planning Regulations, 16.
\115\ Gannan Family Planning Regulations, 9.
—————————————————————————
In the TAR, Qinghai, and Sichuan, traditional minority marriage
ceremonies are permitted, though polygamy and polyandry have been
abolished, and religion may not be used to “interfere” with
marriage.\116\ Laws and regulations in certain Tibetan prefectures in
Qinghai and Sichuan expressly protect the right of persons of different
ethnic groups to marry one another.\117\ Prohibitions exist for
arranged marriages and the sale of a person into marriage.\118\
—————————————————————————
\116\ Adapting Regulations of the TAR on the Implementation of the
Marriage Law of the People’s Republic of China (effective January 1,
1982; adopted on April 18, 1981, by the 5th Session of the Standing
Committee of the Third TAR People’s Congress), 2, 3, 4; Supplemental
Provisions of the Huangnan Tibetan Autonomous Prefecture on the
Implementation of the PRC Marriage Law (effective August 7, 1982;
approved on August 7, 1982, by the 19th Session of the Standing
Committee of the Fifth People’s Congress of Qinghai Province) (the
“Huangnan Marriage Provisions”), 4; Supplemental Provisions of the
Haibei Tibetan Autonomous Prefecture on the Implementation of the PRC
Marriage Law (effective July 16, 1983; approved on July 16, 1983, by
the 2nd Session of the Standing Committee of the Sixth People’s
Congress of Qinghai Province) (the “Haibei Marriage Provisions”),
3; Supplemental Provisions of the Ganzi Tibetan Autonomous Prefecture
of Sichuan Province on the Implementation of the PRC Marriage Law
(effective July 1, 1982; adopted on November 19, 1981, by the Sixth
Session of the Fourth People’s Congress of Ganzi Tibetan Autonomous
Prefecture and approved on December 26, 1981, by the 13th Session of
the Standing Committee of the Fifth People’s Congress of Sichuan
Province) (the “Ganzi Marriage Provisions”), 3, 7.
\117\ Huangnan Marriage Provisions, 5; Haibei Marriage
Provisions, 4.
\118\ Ganzi Marriage Provisions, 4, Supplemental Provisions of A
Ba Tibetan and Qiang Autonomous Prefecture on the Implementation of the
PRC Marriage Law (effective January 1, 1984; adopted on March 17, 1983,
by the 12th Session of the Standing Committee of the Fourth People’s
Congress of the A Ba Tibetan Autonomous Prefecture and approved on July
12, 1983, by the 2nd Session of the Standing Committee of the Sixth
People’s Congress of Sichuan Province; amended on July 8, 1988, by the
4th Session of the Standing Committee of the Sixth People’s Congress of
A Ba Tibetan and Qiang Autonomous Prefecture and approved on September
26, 1988, by the 5th Session of the Standing Committee of the Seventh
People’s Congress of Sichuan Province), 2; Hainan Marriage
Provisions, 3.
—————————————————————————
National laws and regulations on religion
Under a 1952 State Council decision, all minorities are to enjoy,
among other things, the same freedom of religion as is enjoyed by Han
people in the same locality.\119\ The State Ethnic Affairs Commission
requires that the observance of minority holidays, dietary
restrictions, and religious practices be allowed.\120\
—————————————————————————
\119\ Supra note 13, 1.
\120\ Supra note 15, Parts 3 and 4.
—————————————————————————
The PRC Autonomy Law requires the autonomy agencies of ethnic
autonomy areas to guarantee the freedom of religion of citizens of all
ethnic groups. No state agency, social group, or individual may force
any citizen to adopt any beliefs or disavow any religious beliefs and
may not discriminate against citizens who have religious beliefs and
those who do not. The State protects “normal” religious activities.
However, no person may use religion to destroy social order, damage the
health or well-being of citizens, or interfere with the state education
system. In addition, religious groups and institutions may not accept
support from “foreign forces.” \121\
—————————————————————————
\121\ PRC Autonomy Law, 11.
—————————————————————————
Regional and local laws and regulations on religion
While the government respects and protects the religious freedom of
citizens,\122\ all religious activities must be carried out within the
scope of the Constitution and in compliance of all laws, regulations,
and policies.\123\ All religious groups and places of religious
activity and individuals must accept the leadership of the Communist
Party of China and the government and support the socialist
system.\124\ Religion or places of religious activity may not be used
to incite trouble, create havoc, or carry out criminal activities such
as separatism, destroy the unity of ethnic groups, or disturb social
and public order.\125\
—————————————————————————
\122\ Interim Measures of the TAR on the Administration of
Religious Affairs (effective December 20, 1991; adopted on December 9,
1991, by the Standing Committee of the TAR People’s Government) (the
“TAR Religion Measures”), 1; Interim Provisions of Gansu Province on
the Administration of Religious Affairs (effective November 16, 1991,
adopted by the 21st Session of the Standing Committee of the People’s
Government of Gansu Province) (the “Gansu Religion Provisions”),
29; Provisions of Yunnan Province on the Administration of Religious
Affairs (effective January 1, 1998; adopted on December 2, 1997, and
issued on December 25, 1997, by the 39th Session of the Standing
Committee of the People’s Government of Yunnan Province) (the “Yunnan
Religion Provisions”), 3.
\123\ TAR Religion Measures, 2; Provisions of Qinghai Province
for the Administration of Places of Religious Activity (effective
October 1, 1992; adopted by the 28th Session of the Standing Committee
of the Seventh People’s Congress of Qinghai Province) (the “Qinghai
Religious Places Provisions”), 10; Gansu Religion Provisions, 21;
Yunnan Religion Provisions, 5.
\124\ TAR Religion Measures, 3; Qinghai Religious Places
Provisions, 12; Gansu Religion Provisions, 29.
\125\ TAR Religion Measures, 25; Gansu Religion Provisions, 8;
Yunnan Religion Provisions, 6.
—————————————————————————
The approval of the people’s government is required for the
rebuilding or opening of all places of religious activity.\126\
Registered places will receive legal protection.\127\ Places of
religious activity are to be managed by “patriotic religious groups
whose members must support the Party and socialism, be patriotic and
law abiding, and who safeguard the unity of the State and ethnic
groups.\128\
—————————————————————————
\126\ TAR Religion Measures, 4; Qinghai Religious Places
Provisions, 3; Gansu Religion Provisions, 5, 7; Yunnan Religion
Provisions, 15.
\127\ TAR Religion Measures, 4; Gansu Religion Provisions, 5.
\128\ TAR Religion Measures, 16, 18; Qinghai Religious Places
Provisions, 6; Gansu Religion Provisions, 6, 33; Yunnan Religion
Provisions, 9.
—————————————————————————
The Interim Measures of the TAR on the Administration of Religious
Affairs set a quota and application system for monks and nuns.\129\
Applicants who wish to become a monk or nun must, among other things,
be patriotic and law abiding.\130\
—————————————————————————
\129\ 7.
\130\ 8.
—————————————————————————
Propaganda and publishing departments are to control the
publication of documents that contain religious content so that they
conform with the religious policies of the Party or the State.\131\
Approval from “relevant departments” is required to edit, publish, or
distribute religious materials, including video and audio
recordings.\132\
—————————————————————————
\131\ TAR Religion Measures, 27.
\132\ Yunnan Religion Provisions, 26; Gansu Religion Provisions,
9.
—————————————————————————
In Gansu Province, religious teachers may not proselytize outside
places of religious activity.\133\ Moreover, the activities of self-
proclaimed preachers are prohibited.\134\
—————————————————————————
\133\ Gansu Religion Provisions, 11.
\134\ Gansu Religion Provisions, 24.
—————————————————————————
With respect to foreign contacts, places of religious activity are
to abide by the principles of independence and autonomy.\135\ No
foreign donations for proselytizing activities that have “conditions”
attached to them may be accepted.\136\ Major donations from foreign
organizations or followers require the approval of the people’s
government or the religious affairs bureau of the State Council.\137\
Foreign personnel who go to Qinghai may not, “without approval,”
broadcast audio or video tapes of sermons by foreign religious persons
or distribute religious tracts.\138\
—————————————————————————
\135\ TAR Religion Measures, 19; Qinghai Religious Places
Provisions, 19; Gansu Religion Provisions, 38; Yunnan Religion
Provisions, 7.
\136\ TAR Religion Measures, 24; Yunnan Religion Provisions,
29.
\137\ TAR Religion Measures, 24; Gansu Religion Provisions, 41.
\138\ Qinghai Religious Places Provisions, 20.
—————————————————————————
______

Prepared Statement of Christopher P. Atwood

APRIL 11, 2005

I would first like to express my appreciation for the opportunity
to appear today before the Congressional Executive Commission on China
and present my perspective on the question of “China’s Regional
Autonomy Law: Does it Protect Minority Rights? ”
Rather than discuss the broad range of minority rights issues in
play in Inner Mongolia today, I would like to focus on the issue of
“ecological migration” which illustrates in a striking matter how the
guarantees of autonomy in the regional autonomy law fail to provide
protection against massive state-directed dislocation of the Mongol
nationality in China.\1\
—————————————————————————
\1\ Information on ecological migration is very difficult to
obtain, a fact which by itself casts doubt on whether the policy’s
rationale and implications have been sufficiently debated. In preparing
this paper I have been greatly assisted by the panelists at the panel
“Ecological Migration: Environment, Ethnicity, and Human Rights in
Inner Mongolia,” which I chaired at the
Association for Asian Studies (AAS) Annual Meeting in Chicago on April
3, 2005. I would like to thank the panelists Judith Shapiro (American
University), Jeannine Brown (graduate student, University of East
London), Hong Jiang (University of Wisconsin at Madison), S. Sodbilig
(Inner Mongolia University), and Enhebatu Togochag (Southern Mongolian
Human Rights Information Center) for their very informative and
insightful papers and comments.
—————————————————————————
The earliest versions of “ecological migration” were pioneered in
the early 1990s in Alashan district in far-western Inner Mongolia under
the moniker “three-ways labor restructuring.” Responding to ongoing
severe desertification and pasture degradation in Inner Mongolia’s
driest district, the Alashan authorities started with the basic premise
that excess population and livestock are at the root of pasture
degradation. Their “three-ways restructuring” plan envisioned one-
third of the current pastoral population continuing as herders, one-
third switching to arable cultivation, and one-third entering township
or urban enterprises.\2\ In 2001, this basic idea was adopted by the
Inner Mongolian government and renamed “ecological migration.” The
vastly expanded plan involved moving up to 650,000 persons out of areas
where grasslands are being subject to serious degradation into towns
and other areas.\3\ Considerable sums are being assigned to build
housing and other infrastructure for the new migrants, although whether
these sums are adequate is controversial.\4\ In most areas it appears
the relocations are not total with a small number of herders regarded
as rationally managing rangeland being allowed to stay.\5\ Those
relocated may return after five years if they too can demonstrate an
ability to manage the grassland “scientifically.” Thus “ecological
migration” is accelerating the trend to
polarization in which a small number of relatively well-off herders
(whether ethnically Mongol or Han Chinese) who have assimilated
contemporary Chinese ideas of proper livestock management will continue
herding, while the poorer, less sophisticated herders will be forced
off the land. This social polarization corresponds to a polarization in
the landscape itself, in which slowing expanding oases of intensively
managed fodder and crop fields are set within rapidly growing desert
areas, both squeezing out the remaining areas of usable natural grass
pasture.
—————————————————————————
\2\ A. Hurelbaatar, “A Survey of the Mongols in Present-Day China:
Perspectives on Demography and Culture Change,” in Mongolia in the
Twentieth Century: Landlocked Cosmopolitan, ed. Stephen Kotkin and
Bruce A. Elleman (Armonk: M.E. Sharpe, 1999), p. 201.
\3\ A key question about which data remains scarce is the actual
destinations of “ecological migrants.” In Uushin Juu sumu (Mongol
township), Hong Jiang found that ecological migrants were being
directed not to the mostly Mongol township center, but to the new town
(zhen) of Chaghan Sume (Chinese Chahanmiao) with a population of over
10,000 that are “mostly migrants from outside the area” recruited to
exploit a natural gas field (Hong Jiang, “Fences, Ecologies, and
Changes in Pastoral Life: Sandy Land Reclamation in Uxin Ju, Inner
Mongolia, China” [unpublished paper], and “Cooperation, Land Use, and
the Environment in Uxin Ju: The Changing Landscape of a Mongol-Chinese
Borderland in China,” Annals of the Association of American
Geographers,” 94.1 [2004], p. 129). In Alashan it appears that half of
the herders or 20-25,000 were originally to be resettled on a 70,000
hectare oasis communities as farmers, although the construction of this
oasis seems to be currently mired in corruption, incompetence, and
flawed science (Jeannine W. Brown, State Sponsored Resettlement in
Inner Mongolia: A Case Study in Environmental Forced Migration [M.A.
Thesis, University of East London, 2004], pp. 35-36; “Irresponsible
cultivation causes desertification, environmental destruction threatens
Beijing,” August 21, 2004, at http:www.smhric.orgnews–45.htm,
accessed April 13, 2005). Many of the migrants are slated to become
sedentary dairy farmers working with foreign-breed milk cows; see
Brown, op. cit., pp. 43-44.
\4\ In Ordos, migrants receive 20,000 yuan ($2,400) being given to
each migrant (Jiang, “Fences, Ecologies, and Changes in Pastoral
Life”). In Chakhar, Mongol herders being moved due to the production
of a power plant received 10,000 yuan ($1,100) if they agreed to
renounce all return to their previous pastures; those who wish to
retain their right to return would receive only a mud-brick house worth
5,000 yuan ($550) and would have to purchase an Australian milk cow;
see “Power Plant Project Forces Local Mongols to Abandon Ancestral
Lands,” September 4, 2003, at http:www.smhric.orgnews–30.htm
(accessed April 6, 2005).
\5\ In Ereen Khot (Erlian) the city boundaries were recently
expanded to include pastures with 354 herding households. Of these only
50-80 have been chosen to be allowed to stay on the land to promote
“animal husbandry for tourism.” See “Ereen Hot municipality lends
every effort to implement ecological migration project,” August 8,
2004, at http:www.smhric.orgnews–43.htm (accessed April 13, 2005). 100
households are being moved from Buridu gachaa (a sub-township unit) in
Uushin Juu township (Jiang, “Fences, Ecologies, and Changes in
Pastoral Life”); the only figure on the total population of that
gachaa available to me, that of 210 households in 1984 (Nei Menggu
Zizhiqu diming zhi: Yike Zhao meng fence [Hohhot: Inner Mongolian
Autonomous Region Local Names Commission, 1986], p. 326), would
indicate that roughly a third of the households are being moved.
—————————————————————————
Any evaluation of “ecological migration” must deal with the
undeniable ecological crisis in Inner Mongolia and the legacy of
decades of over-reclamation and over-grazing. Massive dust storms in
Beijing have alerted China’s central government to the seriousness of
the situation. There exists a consensus among outside observers that
while overstocking of livestock, particular sheep and goats valued for
their wool and cashmere, today is currently driving much pasture
degradation, historically it is over-reclamation of marginal lands for
farming that has damaged Inner Mongolian pastures the most.\6\ Although
Inner Mongolian policy in 1984 officially prohibited further
reclamation of pasture, the 2003 land-use law in Inner Mongolia
appears to again encourage “wild-cat” land reclamation.\7\
Economically, the bankruptcy of smaller-scale, less capitalized
producers and their replacement by larger-scale commercialized
producers is a universal, if often painful, aspect of economic
development, although rarely so explicitly decreed by the government as
in this case.
—————————————————————————
\6\ Dennis Sheehy, “Grazing Management Strategies as a Factor
Influencing Ecological Stability of Mongolian Grasslands,” Nomadic
Peoples 33 (1993), pp. 17-30, esp. pp. 26-27.
\7\ “Inner Mongolian authorities carry out new policies: Land use
first, formalities later on” June 24, 2003 at
http:www.smhric.orgnews–27.htm (accessed April 6, 2005).
—————————————————————————
In terms of human rights “ecological migration” raises serious
problems. On an individual level we can ask, are the transfers truly
voluntary? Are the residents being adequately compensated and given the
ability to make a living in their new homes? Reports are contradictory.
One geographer working in Ordos reports that the possibility of a
prosperous town life is enticing for many poor herders, yet the fact
that in this same community the possibility of returning after five
years is also being touted as a concession palliation indicates
migrants may have reasonable doubts of whether they will really succeed
as towns people.\8\ Other observers report cases of forcible eviction
by the police of communities unwilling to move.\9\ Undoubtedly
implementation of such a vast program differs widely in the localities.
Yet it would be naive to put too much stock in the possibility of the
implementation of such movement being fully voluntary. “Ecological
migration” is now government policy, adopted without significant
public input and those slated for migration are undoubtedly aware that
resistance is futile.\10\ As with any issue of (broadly speaking)
eminent domain, i.e. use of government power to abridge citizens’
existing property rights, the question is, does this abridgement
disproportionately affect one community more than another and was the
decision taken with input from all the affected communities?
—————————————————————————
\8\ See Hong Jiang, “Fences, Ecologies, and Changes in Pastoral
Life.”
\9\ Gardi Borjigin,“Inner Mongolian Environment Threatened, Nomads
Forced to Move,” at
http:www.expertclick.comNewsReleaseWiredefault.cfm?Action=ReleaseDetail&
ID=8211 (accessed April 6, 2005).
\10\ In April, 2002, a speech by CCP Politburo member Jiang Chunyun
on tour in eastern Inner Mongolia monitored by the BBC made it clear
that effectively implementing ecological migration will be the test for
any cadre who hopes for promotion. “Any cadres in desertified areas
who fail to attach importance to the environment should not be cadres;
those who fail to build a sound environment are not good cadres . . .
In areas where desertification is serious and where the conditions for
human survival are more or less lost, ecological migration should be
conducted.” Jiang Chunyun’s remarks on this tour are one of the
clearest expression’s of the central government’s views on
environmental policy in Inner Mongolia. See
http:coranet.radicalparty.orgpressreviewprint–
right.php?func=detail&par=3268 (accessed April 13, 2005).
—————————————————————————
Since pasture degradation is linked to the dynamics of herding and
farming, an issue with long ethnic repercussions in Inner Mongolia, the
“ecological migration” issue must also be seen in the light of
minority rights. Nomadic pastoralism was the traditional way of life
for most Mongols up to the twentieth century and the herding life has
been the font of Mongol values, art, literature, and national feeling.
Although the pastoral Mongols in Inner Mongolia had largely shifted to
shifted to sedentary ranching by the 1980s, herding remains important
for the Mongols, both practically and symbolically.
Yet I would like to dispose of a red herring immediately.
“Ecological migration” is often cast as a conflict of purely
traditional Mongols, seen as stubbornly attached to rural life and
pastoral nomadism for cultural reasons, and Han Chinese practicing
innovative, high-productivity land use. In reality, however, the
Mongols of Inner Mongolia are highly educated with strong aspirations
to success in the modern sector. In fact their literacy rate is
slightly higher than the Han Chinese, and they are over-represented in
the ranks of cadres.\11\ Pastoralists in Inner Mongolian are more
commercialized and have a higher income than farmers.\12\ For better or
for worse, Mongol herders have been quite as willing to adopt the new
intensive managerial strategy of herding.\13\ At the same time, the
contention that this managerial ranching will be less harmful to the
steppe than nomadic pastoralism is quite dubious scientifically; in
fact increasing, not decreasing, mobility may be the key to saving the
grasslands.\14\ What is beyond doubt is that the almost twenty years of
state-directed and scientifically managed programs to alleviate
grasslands degradation have not worked and indeed may well have
accelerated desertification.\15\ The issue is thus not modernization
vs. tradition, but ensuring that the Mongols have meaningful voice in
the nature of the modernization of their own communities.
—————————————————————————
\11\ Song Naigong, Zhongguo renkou (Nei Menggu fence) (Beijing:
China Finance and Economics Press, 1987), pp. 363, 359-361.
\12\ Nei Menggu da cidian (Hohhot: Inner Mongolia People’s Press,
1991), pp. 275, 296.
\13\ Hong Jiang, “Cooperation, Land Use, and the Environment in
Uxin Ju,” pp. 117-139.
\14\ This was the conclusion reached by the large Macarthur
Project; see Caroline Humphrey and David Sneath, The End of Nomadism?
Society, State and the Environment in Inner Mongolia (Durham: Duke
University Press), esp. pp. 292-93.
\15\ Dennis Sheehy, op. cit.; Dee Mack Williams, Beyond Great
Walls: Environment, Identity, and Development on the Chinese Grasslands
of Inner Mongolia (Stanford: Stanford University Press, 2002), esp. pp.
117-137; Hong Jiang, op. cit., esp. fig. 9.
—————————————————————————
“Ecological migration” thus remains an ethnic issue. Although Han
Chinese herders and farmers in affected areas are also being deported,
the Mongols remain the predominant population group in the arid regions
of Inner Mongolia slated for population removal, and hence are being
disproportionately influenced by ecological migration.\16\ These arid
grasslands constitute the heartlands of ethnic Mongol life, where they
are the local majority and dominate their community as the long
resident native population. Until the 2001, Mongolian language, social
standards, and culture still formed the norm in these remote areas to
which the immigrant Han Chinese partially conformed.\17\
—————————————————————————
\16\ A BBC broadcast includes interviews with Han farmers from
Taipusi Banner and Mongolian herders from around Shiliin Gol both being
affected by “ecological migration”; see
http:www.bbc.co.ukworldserviceprogrammesramparched–landsparched–
lands3.ram (accessed April 6, 2005). While no ethnic breakdown has been
released, the ethnic demography of Inner Mongolia and the overwhelming
testimony of observers agree that mostly Mongols are being affected.
\17\ Burton Pasternak and Janet W. Salaff, Cowboys and Cultivators:
The Chinese of Inner Mongolia (Boulder: Westview, 1993), pp. 143-253.
—————————————————————————
Ecological migration is breaking up many, if not most, of these
last redoubts of Mongol community life in Inner Mongolia. In their new
environments, the resettled migrants will often lack proper skills and
aptitudes for their new occupations. Indeed by moving the most
traditional and least capitalized and managerials-style herders, the
authorities are choosing also the ones least likely to adapt to urban
life. When settled on the outskirts of predominantly Han cities and
towns, the Mongols often lack Mongol-language schools and become
marginal residents in a culturally and socially alien environment.
Already there are alarming signs of dramatic drops in income among the
resettled migrants as well as sharp drops in school attendance as
relocated Mongol students find themselves with either no local schools,
or only Chinese-language ones.\18\
—————————————————————————
\18\ A study of 111 households relocated in Sonid Right Banner
showed their average incomes dropping from 2,872 yuan before relocation
in 2000 to 503 yuan after relocation in 2002. At the same time their
debt load rose from 0 yuan to 7,000-8,000 yuan. Enrollment in Inner
Mongolia’s elementary schools dropped 19.4 percent from 2002 to 2003.
See Enhebatu Togochog, “Ecological Immigration and Human Rights,”
paper presented at the Annual Meeting of the AAS, April 3, 2005.
—————————————————————————
Ecological migration thus runs directly contrary to any minority
right to preserve its own communal life. Before 1947, pasture in un-
reclaimed Mongol steppe was held collectively by the “banner” (or
county-level unit). Decades of political and social conflict along the
Mongol-Han frontier before 1947 had revolved around the Mongols’
tenacious and resourceful attempts to protect these collective land
rights from encroachment by Han Chinese land-developers and their
allies in the provincial governments. From the very inception of
Chinese Communist land reform, however, land was transferred to the
Chinese state, with rural producers being granted only longer or
shorter leases. The deprivation of land-rights has hardly affected only
Mongols or minorities; collectivization in 1956 and the current rampant
abuse of government powers of eminent domain to facilitate urban sprawl
are two other particularly egregious examples of this cavalier
disregard of land rights.\19\ Articles 27 and 28 of the Law on Regional
National Autonomy discuss land use and give the autonomous regions the
right to determine ownership of pastures and forests. The same
articles, however, absolutely prohibit any “damage” to the grasslands
by individuals or collectives, and call on the autonomous authorities
to give “priority to the rational exploitation and utilization of the
natural resources that the local authorities are entitled to develop.”
Technocracy thus explicitly trumps any and all land rights. The ongoing
destruction of Mongol local community life involved in ecological
migration is thus fully in accord with and indeed may actually be
mandated by China’s regional national autonomy law, as long as one
accepts the disputed premise that nomadism and overstocking are behind
desertification.
—————————————————————————
\19\ Abuses of eminent domain are also found in Inner Mongolia; see
for example “Power Plant Project Forces Local Mongols to Abandon
Ancestral Lands,” September 4, 2003, at http:www.smhric.orgnews–
30.htm (accessed April 6, 2005).
—————————————————————————
Still, if Inner Mongolia’s regional national autonomous organs
actually spoke for the Mongol nationality, then the articles 27 and 28
would still give the Mongols input into these technocratic land use
decisions. This is, however, not the case. Along with the rejection of
banner communal land-ownership in 1947, the newly created Inner
Mongolian Autonomous Region also rejected the then common practice of
over-lapping Han and Mongol local jurisdictions (Han counties or xian
and Mongol banners) in favor of unitary local government. Inner
Mongolia was eventually expanded to include most of China’s far-flung
Mongol communities, but only at the price of thereby acquiring an
overwhelming Han majority. At the prefectural and county levels,
administrative changes ostensibly intended to give each unit a balance
of agricultural and pastoral economies frequently yoked sparsely
settled majority-Mongol districts with vastly more populous Han-
majority districts. As a result, only in the arid zone townships (sumu)
and in some purely steppe banners do Mongols actually predominate in
government.\20\ At the prefectural and all-regional levels, Mongol
cadres have the worst of both worlds: over-represented enough through
“affirmative action” to generate resentment, but not numerous enough
to actually control decisionmaking in Mongol interests.\21\ This does
not even take into account the power of the central government in
Beijing. Thus the regional national autonomous organs simply cannot act
as protectors of specifically Mongol ethnic interests.
—————————————————————————
\20\ The sumu is a Mongol township; typically Mongols monopolize
local government and police in the sumu even where Han migrants make up
a large percentage or even a majority of the residents. See for example
Pasternak and Salaff, Cowboys and Cultivators, esp. pp. 170-172. The
special administrative terms used in Inner Mongolia’s Mongol regions
are as follows: Regular Chinese terms–Inner Mongolia’s Mongol areas;
Province–Autonomous Region; Prefecture or municipality–league (aimag
in Mongolian, meng in Chinese); County (xian)–banner (khoshuu in
Mongolia, qi in Chinese); Township (xiang)–sumu.
\21\ William B. Jankowiak, in his Sex, Death, and Hierarchy in a
Chinese City: An Anthropological Account (New York: Columbia University
Press, 1993), pp. 33-37, 303, stresses the resentment which
preferential policies for Mongols raise among Han in Inner Mongolia’s
capital, Hohhot; Uradyn E. Bulag describes the ethnic and regional
factionalism in Inner Mongolian government in his “Dialectics of
Colonization and Ethnicity Building,” in Governing China’s Multiethnic
Frontiers, ed. Morris Rossabi (Seattle: University of Washington Press,
2004), pp. 84-116.
—————————————————————————
Now, no one can deny that it would be fundamentally unfair for
decisionmaking in a region only 16 percent Mongol, as Inner Mongolia as
a whole is, to be monopolized by Mongols. Yet apart from such a
monopoly, it is hard to see how the Mongols as a group can be said to
have had any meaningful voice in the momentous decision taken in 2001
to remove whole communities from their ancient ancestral homes. Under
Chinese law, regional national autonomy is for better or for worse the
only organ through which the minority nationalities exercise their
collective right to autonomy, yet in a region with borders drawn
wherever possible to combine Han and Mongol communities, such an
autonomy cannot help but be fictitious. As a result, “ecological
migration,” despite its origin within the Inner Mongolian bureaucracy,
is one more example of the inability of Chinese regional national
autonomy, as currently structured, to allow the legitimate concerns of
minorities to even be voiced openly, let alone prevail in the public
arena.
______

Prepared Statement of Gardner Bovingdon

APRIL 11, 2005

I have been invited to address the question of whether the Regional
Autonomy Law protects “minority rights” in the Xinjiang Uyghur
Autonomous Region. In a recent short monograph, I considered the matter
at greater length.\1\ Here, I will focus on one particular right
invoked in the Regional Autonomy Law: that of each non-Han
ethnonational group, or minzu, to “administer its own internal
affairs” within the autonomous unit(s) assigned to it. Throughout I
will refer to these groups not as “minorities” but as “minzu,” a
Chinese term which keeps attention focused not on their numbers but on
their cultural distinctiveness with respect to Hans. I will take up
three related matters: First, how is this right defined; in other
words, what constitute “internal affairs”? Second, who administers
the right? Third, what legal recourse do groups have if the right is
abridged?
—————————————————————————
\1\ Available at http://www.eastwestcenterwashington.org/
Publications/bovingdon.pdf.
—————————————————————————
1. A CONUNDRUM: WHAT ARE “INTERNAL AFFAIRS? ”

On its face, the term “internal affairs” seems irremediably
vague. In fact, much of the political contention in Xinjiang can be
understood as a dispute over the meaning of the term. The Law itself
does little to clarify the question. Specific articles enumerate the
rights of members of each minzu to vote, to be treated as equals with
all other citizens, to use and develop their native language, to foster
the “excellent” parts of their native culture, and to conduct court
proceedings in their native language. Other articles describe special
powers of autonomy, such as the right to modify national laws if
inappropriate to local circumstances, to modify educational materials,
to make special fiscal arrangements locally and with Beijing, and to
propose general and special autonomy laws for each unit. Yet in each
case the exercise of the power of autonomy is subject to approval by
higher-level government organs. In plain language, it is not
autonomous.\2\ In the view of many Uyghurs, a number of matters
properly constitute “internal affairs” in the autonomous region
bearing their name: control of immigration into Xinjiang; the
exploitation of its land, water, and mineral resources; the content of
education and the language in which it is delivered; the practice of
religion; the choice of family size; and the management of expressive
culture, including music, novels, film, and so on.\3\ At present all of
these are beyond popular control.
—————————————————————————
\2\ See, e.g., Moneyhon (2002).
\3\ In a survey of autonomy regimes around the world, Hannum and
Lillich suggest that most regimes offering substantial autonomy include
local control of such matters, with the possible exception of
population flows, and further include an independent legislature and
judiciary (Hannum and Lillich 1980).
—————————————————————————
2. WHO IS TO ADMINISTER THIS RIGHT?

If ordinary Uyghurs have little opportunity to manage their
collective “internal affairs,” they must depend on political
representatives to do so. As other scholars have demonstrated, there
are very few mechanisms of interest aggregation available to ordinary
citizens of China. Though the PRC Constitution explicitly guarantees
free speech, assembly, and press (Article 35), many citizens have been
prosecuted for words they have spoken or written, many others for
taking part in demonstrations or peaceful gatherings. The evidence
suggests that these restrictions have fallen with particular force on
certain non-Han groups, such as Uyghurs. Attempts by Uyghur individuals
or groups to raise concerns with the government, or even to express
them publicly, have been harshly punished. Peaceful demonstrators,
poets, teachers, and businesspeople have all been jailed on charges of
“separatism” or “leaking state secrets.” \4\ The stark limitations
on popular political expression lend special importance to those who
represent ordinary citizens in government organs and in the Party. The
PRC’s recent experiments with electoral democracy have thus far been
confined to the local level. Most officials at higher levels of the
government have long been and continue to be appointed by other
officials. Party elites in autonomous units made extraordinary efforts
to recruit government officials from among non-Hans during the 15 years
after the PRC was founded. Their considerable success is reflected in
the more than one hundred thousand non-Hans in government positions in
Xinjiang by 1965. Of a total body of 190 thousand cadres, non-Hans thus
constituted nearly 56 percent. Though well below their proportion in
the general population (over 75 percent), these cadres lent substance
by their numbers to the slogan of “minzu regional autonomy.”
Unfortunately, the vast majority were purged during the Cultural
Revolution (1966-76). By 1983, most of those had been reinstated and
many more non-Hans recruited into the government, raising the total
number to over 180 thousand. However, while the raw number of non-Han
cadres rose substantially, their share in the total number fell over 10
percentage points to around 43 percent (“XUAR gaikuang” bianxiezu
1985: 52-4). According to the PRC State Council’s 2003 White Paper on
Xinjiang, the percentage has risen again; today the nearly 350 thousand
non-Han cadres constitute almost 52 percent of the total.\5\ The
general point to be made is there consistently been a substantial gap
between the proportion of non-Hans in government and in the population,
though massive Han immigration has narrowed the gap considerably.
—————————————————————————
\4\ For examples, see Dillon (2004); Becquelin (2004).
\5\ Available at http ://www.china.org.cn/e-white/20030526/8.htm
(Consulted 2005/04/01).
—————————————————————————
The increased proportion of non-Hans in government positions since
1970s was the direct result of Beijing’s calls in the early 1980s for
increased “nativization” (minzuhua) of governments in autonomous
regions. Many Uyghurs and other non-Hans hoped that this presaged more
numerically representative governance–and thus broader autonomy–in
Xinjiang. The 2001 revision of the Regional Autonomy Law points in the
opposite direction: where the original 1984 law suggested that
officials “as far as possible” be selected from among non-Hans
(Articles 16, 17, and 18), the new version stipulates only that
positions be apportioned “reasonably” among groups.\6\
—————————————————————————
\6\ The 1984 law is available in (Zhongyang dangxiao minzu zongjiao
lilun shi 1998). The 2001 law can be found at http://www.cecc.gov/
pages/selectLaws/laws/
lawRegNatAuto.php?PHPSESSID=23df8b0d664177126ecb5807afd9598e (consulted
2005/04/03).
—————————————————————————
There has never been a corresponding initiative in the Party. The
“percentage gap” mentioned above is much more pronounced in the case
of Party members. In 1987 only 38.4 percent of Party members in
Xinjiang were non-Han, though non-Hans comprised over 60 percent of the
population. The numbers subsequently fell. In 1994, the percentage of
non-Han Party members had decreased to 36.7 percent.\7\ The small and
falling proportion of non-Hans in Xinjiang’s Party apparatus is
particularly significant given the dominance of the CCP in political
life. Party officials outrank government officials at corresponding
ranks in the political hierarchy, and therefore have the final say in
matters of consequence. The disproportion is even more pronounced in
leadership positions. At all levels of the hierarchy from village to
provincial level, the overwhelming majority of Party First Secretaries
in Xinjiang have always been Hans; there has never been an official
explanation of this seeming statistical anomaly.\8\
—————————————————————————
\7\ Figures calculated from Xinjiang Nianjian (Xinjiang Yearbook),
editions from 1988 and 1995. There are several plausible explanations
for the disparity: either the Party was reluctant to recruit non-Hans,
or they were averse to joining, or both.
\8\ See, e.g., (McMillen 1979: 48). An authoritative observer notes
drily that there was “never . . . any suggestion that Party leaders in
the nationality areas would need to be members of the relevant
nationality” (Mackerras 1994: 156).
—————————————————————————
This level of numerical detail suggests in broad terms that Uyghurs
and other non-Hans have never enjoyed representation in government
organs commensurate with their proportions in the population, and have
been even less well represented in the Party. It remains to point out
that, in the estimation of ordinary Uyghurs, those Uyghurs who have
risen to top leadership positions have been selected not for their
responsiveness to popular concerns but because of their tractability.
Thus the problem of defining the right under consideration is
compounded by an inadequate body of representatives charged with giving
that right political substance.

3. WHAT SAFEGUARDS THIS RIGHT?

Where can ordinary Uyghurs turn if they feel their right to manage
Uyghurs’ internal affairs have been compromised and their
representatives have not protected their interests? The Chinese legal
scholar Yu Xingzhong illustrates a crucial weakness in the 2001
Regional Autonomy Law. Though the law enumerates certain rights,
including the one under consideration here, it is in his words “non-
actionable”:

“The enforcement of this law . . . rests entirely on the
conscience and awareness of the departments concerned. If a
state organ fails to implement such a law, there is no legal
basis to hold such an organ responsible and hence no remedy can
be sought. . . . In addition, a basic law like this is
constitutional by nature and as such, like PRC constitution
itself, it is not actionable. Past experience has shown that
the Regional Autonomy Law has rarely been cited to decide court
cases.” \9\
—————————————————————————
\9\ (Yu Xingzhong n.d.).
—————————————————————————
In plain language, the Law does not specify legal consequences if a
right is abridged, nor does it indicate where redress might be pursued.
In sum, given the fuzziness with which the right of each minzu to
administer its own internal affairs is defined, the paucity of minzu
representatives empowered to exercise that right in Xinjiang, and the
absence of clear legal recourse if the right is infringed, one is led
to the conclusion that the Regional Autonomy Law as amended in 2001
does little to protect minority rights. It is to be hoped that the next
version does better.

REFERENCES

Becquelin, Nicolas. 2004. “Criminalizing Ethnicity: Political
Repression in Xinjiang.” China Rights Forum:39-46. Available from
http://www.hrichina.org/fs/view/downloadables/pdf/downloadable-
resources/b1–Criminalizing1.2004.pdf.
Dillon, Michael. 2004. Xinjiang–China’s Muslim Far Northwest.
London: RoutledgeCurzon.
Hannum, Hurst, and Richard B. Lillich. 1980. “The Concept of
Autonomy in International Law.” American Journal of International Law
74:858-89. Available from.
Mackerras, Colin. 1994. China’s Minorities: Integration and
Modernization in the Twentieth Century. Oxford: Oxford University
Press.
McMillen, Donald H. 1979. Chinese Communist Power and Policy in
Xinjiang, 1949-77. Boulder: Westview Press.
Moneyhon, Matthew. 2002. “Controlling Xinjiang: Autonomy on
China’s New Frontier.” Asia-Pacific Law & Policy Journal 3:120-52.
Available from http://www.hawaii.edu/aplpj/pdfs/v3-04-Moneyhon.pdf.
“XUAR gaikuang” bianxiezu (Ed.). 1985. Xinjiang Weiwu’er Zizhiqu
gaikuang (An overview of conditions in the XUAR). Urumqi: Xinjiang
Renmin Chubanshe.
Yu Xingzhong. n.d. “From State Leadership to State Responsibility
–Comments on the New PRC Law on Regional Autonomy of Ethnic
Minorities.” Hong Kong: Chinese University.
Zhongyang dangxiao minzu zongjiao lilun shi (Ed.). 1998. Xin shiqi
minzu zongjiao gongzuo xuanchuan shouce (Propaganda handbook for minzu
and religion work in the new era). Beijing: Zongjiao wenhua chubanshe.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s