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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

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

LEGISLATIVE BRANCH COMMISSIONERS

Senate House

CHUCK HAGEL, Nebraska, Chairman

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

MEMBERS TO BE APPOINTED

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)

(III)

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

(1)

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

2

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.

3

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.

4

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

5

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.

6

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 comVerDate 11-MAY-2000 10:14 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 21045.TXT China1 PsN: China1
7

mercialized 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

8

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

9

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

10

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

11

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 nonVerDate 11-MAY-2000 10:14 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 21045.TXT China1 PsN: China1
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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 nonHan, 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.

13

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 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

14

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

15

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 townlike 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 implemenVerDate 11-MAY-2000 10:14 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 21045.TXT China1 PsN: China1
16

tation 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

17

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.

18

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

19

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

20

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.’’

21

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

22

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.

23

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 indeVerDate 11-MAY-2000 10:14 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 21045.TXT China1 PsN: China1
24

pendent 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 Ho ̈hhot. 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 Mongolianspeaking 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

25

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 postSeptember 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 producVerDate 11-MAY-2000 10:14 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 21045.TXT China1 PsN: China1
26

tion 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?

27

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

28

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.]

(29)

A P P E N D I X

30

1 Harvard University, Belfer Center for Science and International Affairs at the John F. Kennedy School of Government, September 2005. 2The Washington Post, June 14, 2004, ‘‘World in Brief,’’ p. A20. 3South China Morning Post, March 14, 2005, ‘‘Dalai Lama yields ground on Tibet self-rule,’’ p. 1.

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).

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

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

31

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). 6Decision 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).

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.

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

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

32

7Decision 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. 8Supra 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. 10Supra note 15, Part 3. 11Supra note 15, Parts 3 and 4. 12The autonomy agencies are the people’s congresses and the people’s governments. 13Supra note 13, Part 2 and Part 3; PRC Autonomy Law, §§ 5, 7, 9. 14PRC Autonomy Law, § 9. 15PRC Autonomy Law, § 54. 16PRC Autonomy Law, § 20. 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. 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.

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.

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

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.

Regional and local laws and regulations on self-governance of minorities

TAR regulations17 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

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 language19 and require Chinese cadres20 to learn Tibetan.21 When

33

22 E.g., Hainan Autonomy Regulations, § 56. 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. 29 § 11. 30 §§ 8, 11. 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.

studying and using their own language, minority cadres ‘‘should’’ also study

Putonghua and the Chinese written language.22

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

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

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

34

32Opinion of the State Ethnic Affairs Commission on the Work of Further Training and Selecting Minority Cadres, effective December 30, 1993, Zhongzufa [1993] No. 9. 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). 45Procedural 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.

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

Regional and local laws and regulations on local executive governance

Implementing measures33 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

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.

35

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. 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). 49Supra note 53, § 5; supra note 54, § 4. 50Supra note 53, § 4; supra note 54, § 5. 51Law of the People’s Republic of China on Assemblies, Processions and Demonstrations, Article 12; supra note 54, § 12. 52Supra note 53, §§ 13, 23; supra note 54, § 25. 53See 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).

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

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 TAR47 and Lhasa Municipality48

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

36

54 §31. 55 §55. 56 §56. 57 §63. 58 §65. 59 §28. 60Letter 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. 61 Issued on July 7, 1979, by the State Ethnic Affairs Commission and the Ministry of Finance.

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

(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

(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

(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

(e) Autonomy agencies have the authority to manage and protect natural resources

in autonomous areas.59

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

The Provisions on the Management of Subsidies for Minority Areas61 authorize

subsidies for minorities in the national budget to meet special expenses of minorities

for promoting production, culture, education, medical care, and health.

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

37

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. 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. 64Supra note 69, § 4. 65Supra 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). 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.

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

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

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

38

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). 71Opinion 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. 72 § 36. 73 §37.

CULTURE

National laws and regulations on education

Official opinions and notices70 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.

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

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

39

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. 79Minority 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. 80 E.g., TAR Education Regulations, § 6; Qinghai Education Regulations, § 11; A Ba Education

Regulations, § 6.

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

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

40

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. 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. 86SEAC Report. 87 Ibid. 88PRC 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). 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 Lanentering temples and ban religious organizations from recruiting them for religious

study.81

National laws and regulations on language

Official notices and national laws provide for the development of minority languages82 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

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

41

guage 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. 95The ‘‘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. 96TAR 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. 97TAR Language Regulations, § 9; Hainan Language Regulations, § 20; Ganzi Language Regulations, § 15. 98Ganzi 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. 99TAR Language Regulations, § 12; Gannan Language Regulations, § 15; Hainan Language

Regulations, § 11; Ganzi Language Regulations, § 18. 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).

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 and96 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

National laws and regulations on cultural traditions

Official notices and explanations100 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

42

104 Burial Provisions, §§ 1, 2 and 3. 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. 106Gannan Tibetan Medicine Regulations, § 11. 107Qinghai 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). 109Qinghai CTM Regulations, §§ 18, 22, 23; Gannan Tibetan Medicine Regulations, § 4. 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’’). 111Gannan Family Planning Regulations, § 3. 112Gannan Family Planning Regulations, § 4; Ganzi Family Planning Regulations, § 4. 113Gannan Family Planning Regulations, § 5; Ganzi Family Planning Regulations, §§ 14, 15.

have died of the bubonic plague, cholera, or anthrax, no group may be forced to

carry out cremations.104

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.1051

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

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’’ policy110 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 nonrural persons, and rural and pastoral residents who wish to have a second child,

43

114Gannan Family Planning Regulations, § 6; Ganzi Family Planning Regulations, § 16. 115Gannan Family Planning Regulations, § 9. 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. 118Ganzi 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. 119Supra note 13, § 1. 120Supra note 15, Parts 3 and 4. 121PRC Autonomy Law, § 11. 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. 123TAR 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 StandContinued

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

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

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

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

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

44

ing Committee of the Seventh People’s Congress of Qinghai Province) (the ‘‘Qinghai Religious

Places Provisions’’), §10; Gansu Religion Provisions, § 21; Yunnan Religion Provisions, § 5. 124TAR Religion Measures, § 3; Qinghai Religious Places Provisions, § 12; Gansu Religion Provisions, § 29. 125TAR Religion Measures, § 25; Gansu Religion Provisions, § 8; Yunnan Religion Provisions,

§ 6.

126TAR Religion Measures, § 4; Qinghai Religious Places Provisions, § 3; Gansu Religion Provisions, §§ 5, 7; Yunnan Religion Provisions, § 15. 127TAR Religion Measures, § 4; Gansu Religion Provisions, § 5. 128TAR Religion Measures, §§ 16, 18; Qinghai Religious Places Provisions, § 6; Gansu Religion

Provisions, §§ 6, 33; Yunnan Religion Provisions, § 9. 129 §7. 130 §8. 131TAR Religion Measures, § 27. 132 Yunnan Religion Provisions, § 26; Gansu Religion Provisions, § 9. 133Gansu Religion Provisions, § 11. 134Gansu Religion Provisions, § 24. 135TAR Religion Measures, § 19; Qinghai Religious Places Provisions, § 19; Gansu Religion

Provisions, § 38; Yunnan Religion Provisions, § 7. 136TAR Religion Measures, § 24; Yunnan Religion Provisions, § 29. 137TAR Religion Measures, § 24; Gansu Religion Provisions, § 41. 138Qinghai Religious Places Provisions, § 20. 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

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

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

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

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

In Gansu Province, religious teachers may not proselytize outside places of religious activity.133 Moreover, the activities of self-proclaimed preachers are prohibited.134

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

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

45

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. 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 U ̈ u ̈ shin 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 Su ̈me (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 Bu ̈ ridu ̈ gachaa (a sub-township

unit) in U ̈ u ̈ shin 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 [Ho ̈hhot: Inner Mongolian Autonomous Region Local Names Commission, 1986], p. 326), would indicate that roughly a third of

the households are being moved.

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.

Any evaluation of ‘‘ecological migration’’ must deal with the undeniable ecological

crisis in Inner Mongolia and the legacy of decades of over-reclamation and overgrazing. 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 MongoVerDate 11-MAY-2000 10:14 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00049 Fmt 6601 Sfmt 6621 21045.TXT China1 PsN: China1
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6Dennis 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). 8See Hong Jiang, ‘‘Fences, Ecologies, and Changes in Pastoral Life.’’ 9Gardi 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). 11Song Naigong, Zhongguo renkou (Nei Menggu fence) (Beijing: China Finance and Economics

Press, 1987), pp. 363, 359–361. 12 Nei Menggu da cidian (Ho ̈hhot: Inner Mongolia People’s Press, 1991), pp. 275, 296. 13 Hong Jiang, ‘‘Cooperation, Land Use, and the Environment in Uxin Ju,’’ pp. 117–139.

lian 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 largerscale commercialized producers is a universal, if often painful, aspect of economic

development, although rarely so explicitly decreed 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 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?

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

47

14This 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. 15Dennis 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. 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. 18 A study of 111 households relocated in So ̈nid 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. 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).

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.

‘‘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

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

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 ChiVerDate 11-MAY-2000 10:14 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00051 Fmt 6601 Sfmt 6621 21045.TXT China1 PsN: China1
48

20The 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. 21William 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,

Ho ̈hhot; 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. 1 Available at http://www.eastwestcenterwashington.org/Publications/bovingdon.pdf.

na’s regional 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 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.

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 nonHan 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?

49

2See, 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). 4For examples, see Dillon (2004); Becquelin (2004).

5 Available at http ://www.china.org.cn/e-white/20030526/8.htm (Consulted 2005/04/01).

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. 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.

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 nonHans hoped that this presaged more numerically representative governance—and

thus broader autonomy—in Xinjiang. The 2001 revision of the Regional Autonomy

50

6The 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). 7Figures 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. 8See, 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). 9 (Yu Xingzhong n.d.).

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

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 nonHans 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

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

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.

51

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.

Æ