Abstract: The Cultural right is an important part of the ethnic minority’s rights. Since the establishment of the People’s Republic of China, the government has always paid great attention to the protection of the ethnic minority’s cultural rights. In the new historical period, adjustments should be made in such protection as to adapt to the changes in domestic and foreign cultural circumstances and cultural policies. Therefore, a systematic legal system must be established: protecting the cultural right should be defined as a basic principle in the constitution. Local legislation concerning the ethnic minority need be of regional ethnic features and maneuverability. The will of ethnic minorities should be respected in the legislative procedure, strengthening the benefit-sharing principle in cultural development. The relations between protection and development should be duly handled in the legislation objective, emphasizing constant self-innovation of the ethnic minority culture.

 

Key words: Chinese ethnic minority   Cultural right   Legal protection

 

Ethnic minority’s cultural rights refer to the rights of ethnic minorities, confirmed and safeguarded by multinational countries or the international community through domestic legislation or international treaties, to live, study and work in a way according to their own ethnic culture. It is one of the major components of ethnic minority’s rights, including the following three aspects: first, the right to enjoy cultural achievements; second, the right to participation in cultural activities; third, the right to promote cultural creation.1 Some scholars summarized cultural rights concerning intangible cultural heritage into five categories: first, the right to enjoy cultural self-esteem and freedom; second, the right to self-determination in cultural inheritance and development; third, the right and freedom of choice to participation in cultural life; forth, the equal right to cultural expression and transmission; fifth, the right to cultural identity.2 The author believes that ethnic minority’s cultural rights are composed of abstract and substantive rights. Abstract rights mainly include the right to cultural identity, the right to cultural freedom and the right to cultural development, while substantive rights involve the right to enjoy cultural achievements, the right to participation in cultural activities, the right to cultural creation and so on.

 

After the establishment of the People’s Republic of China, the country launched out to enact legislation on the protection of ethnic minority’s cultural rights and thereby established several basic principles on such areas. These laws and regulations contributed significantly to the protection of ethnic minority’s cultural rights and boosted prosperity and development of ethnic minority culture. However, under the impact of modern globalization, China’s protection of ethnic minority’s cultural rights still faces several new problems. Thus, it is necessary to summarize the characteristics of the protection of Chinese ethnic minority’s cultural rights in the past and analyze the existing problems and deficiencies in order to better improve the currently effective laws and regulations and better protect ethnic minority’s cultural rights. At the moment, the problems in China’s protection of ethnic minority’s cultural rights mainly are reflected in several aspects, including the monotony of the value and idea of protection, the narrowness of the protection contents, the lack of maneuverability in protection measures, and the lack of initiative in protection awareness. To counter such problems, this essay proposes that China should set out to build a sound legal system that safeguards ethnic minority’s cultural rights, in legislative spirits fully respect the free-will of the subject of right which is the ethnic minority, and from the aspect of legislative purpose better arrange the relations between protection and development so as to effectively and fully protect the ethnic minority’s cultural rights and eventually promote the all-round development of human.

 

 

 

Human rights protection is one of law’s major values. As an English scholar Milne pointed out, "Any institution that safeguards human rights is a good institution, whilst those institutions that violate human rights or go so far as to deny human rights are bad institutions".3 The new China, after its establishment, though never directly use the word ‘human rights’ in its constitution, did prescribe in its provisions a wide range of civil rights, which literally stands for human rights. On August 4, 1957, Premier Zhou Enlai in Several Questions about China’s Ethnic Policies clarified China’s ethnic policy and stressed in particular respecting and protecting the rights of ethnic groups.4 To ensure the realization of ethnic groups’ rights, China strengthened legislation on such subject. In China’s Constitution, the regulations about the protection of ethnic minority’s cultural rights is first reflected in the general provision about human rights protection, which is in the provision of Article 33 that "the state respects and protects human rights". Second, in the General Principles of the Constitution, there prescribed that the regional ethnic autonomous areas enjoy autonomy which naturally includes the right to culture autonomy. Third, it is explicitly stipulated in the Constitution that every nationality enjoys the freedom of using and developing its own language and the freedom of maintaining or altering its own customs and habits, which evidently includes the content about respecting and protecting ethnic minority’s cultural rights.

 

 

One of the important characteristics of China’s measures in protecting ethnic minority’s cultural rights is the emphasis on the combination of law and policy. On one hand, a legal system is established to protect the rights of ethnic groups, stemming from the Constitution and the Law on Regional Ethnic Autonomy and assisted by administrative regulations enacted by the State Council, administrative rules formulated by Ministries and Commissions under the State Council and local governments with legislative power, and autonomous Regulations and special Regulations formulated by ethnic autonomous areas. To take the protection of ethnic minority’s right to language for an example, Articles 10 and 11 of the Law on Regional Ethnic Autonomy stipulate in particular that ethnic groups enjoy the freedom of using and developing their own language and of maintaining or altering their own customs and habits. On the other hand, the State established a set of specialized policies to support the development of ethnic minority’s cultural rights, including a general policy about cultural rights and other specialized "minority work policies". As for the general policy, the State in 2009, 2012, and 2016 has formulated three volumes of National Human Rights Action Plan in which the protection of ethnic minority’s rights constitute an important part. Meanwhile, specialized minority policies are often issued and their implementation supervised by the central government according to the need to develop minority affairs, usually concerning local public finance, minority education, ethnic minority language publication, minority language broadcasting and television, minority language newspapers and journals, minority personnel training in higher education, disciplinary research on minority literature and language, ethnic cultural heritage protection, and so on. For instance, in May, 2010, the State Council issued Several Opinions on Further Prosperity of and Assistance to Ethnic Culture Career, in which there systematically provided the purposes, measures, and mechanism of promoting the development of ethnic culture career.5

 

 

As it is mentioned above, China has preliminarily set up a legal system that protects ethnic minority’s cultural rights. However, this system is not yet complete and there are still certain problems in the idea and content of protection, the maneuverability of laws, and other aspects.

 

 

First, there is certain obsolescence in the protection ideas and values. Chinese legislation on the protection of ethnic minority’s cultural rights still in idea and value stays at a level of understanding that stresses the artistic value, education function, and political function of historical heritage, unable to integrate in itself such new cultural protection ideas as multi-cultural and ecological protection. Such problem exists at both central and local level.

 

The Law on Intangible Cultural Heritage passed in 2011 has the same problem. Article 1 of this law stipulated the legislative purpose, which is "the law is enacted to carry on and promote Chinese fine traditional culture, promote the construction of socialist spiritual civilization, and enhance the protection and conservation work of intangible cultural heritage.” This law does not concern the other values of cultural heritage in aesthetics, science, history, education, cultural diversity, and other areas.6 The expressions in other laws and regulations are much the same. Article 1 of the Law on the protection of Cultural Relics states the cultural protection purposes as that "the law is enacted in accordance with the Constitution, to enhance the protection of cultural relics, carry on Chinese fine traditional culture, promote the work of scientific research, carry out education in patriotism and revolutionary tradition, and construct socialist spiritual and material civilization.” Even in ethnic regions, to ensure and achieve the rights of ethnic minority does not come first in the construction of democracy and legal system.7 The value orientation in Regulations formulated in ethnic regions to protect traditional folk culture is monotonous as well. For instance, Article 1 of Yunnan Province’s Regulation on the Protection of Traditional Ethnic and Folk Culture provides that "the Regulation is formulated according to the current circumstances of Yunnan Province, under the guidance of the Constitution and relevant laws and regulations, to strengthen the protection of traditional ethnic and folk culture, carry on and promote Chinese fine traditional culture.” Article 1 of Fujian Province’s Regulation on the Protection of Ethnic and Folk Culture stipulates that ”the Regulation is formulated according to the current circumstances of Fujian Province, under the guidance of relevant laws and regulations, to protect ethnic and folk culture, carry on fine cultural traditions, promote the spirit of Chinese nation, and enhance the construction of socialist spiritual civilization". In Article 1 of Guizhou Province’s Regulation on the Protection of Ethnic and Folk Culture, there prescribed that "the Regulation is formulated according to the current circumstances of Guizhou Province, under the guidance of relevant provisions in laws and regulations, to strengthen the protection of ethnic and folk culture, carry on and promote Chinese minority’s fine traditional culture, and enhance social and economic development". In Enshi, Hubei Province’s Regulation on the Protection of Tujia and Miao Autonomous Prefecture’s Ethnic Cultural Heritage, Article 1 prescribes that the Regulation is formulated according to the current circumstances of the prefecture, under the guidance of relevant provisions in national laws and regulations, to protect minority’s cultural heritage, carry on and promote Chinese minority’s fine traditional culture, and promote economic development and social progress. The legislative purposes of the legislation are much the same, that is, they all highlight the historical and political values of ethnic cultural heritage, failing to take into consideration the culture’s ecological, emotional and other values. The international community, however, pays much attention to the multiple protection of historical cultural heritage’s social, resource, and historical values. In 2002, World Culture Report underlines that "in the project plans of heritage protection area, methods the use value and idea are now gaining importance". The mainstream opinion in the international community believes that historical cultural heritage has its values in authenticity, emotion, culture and usage.8

 

Second, there exists value deviation. The culture’s value in usage is over emphasized and its social and humanistic values neglected.9 Governments, including local governments in ethnic autonomous regions, all highlight the culture’s role in assisting economic development, regarding culture as a dependency on economy. They believes that economic development is the first priority and that culture is the resource and tool for the service of social economic development. Under the power of such idea and ideology, culture is naturally unable to achieve significant development. However, the truth is that culture plays a much more profound and basic role than it is presumed. Its role in the sustainable development and scientific improvement of our society is by no means replaceable. Those countries and regions with developed economy tend to be prosperous in culture as well. For example, the indigenous knowledge of some ethnic minorities can be quiet useful in curbing environmental pollution, preserving biodiversity and ecological environment, and promoting the sustainable development of man and nature. Thus, countries in the world and international organizations are now paying increased attention to the research and usage of indigenous knowledge day by day.10 All the tourism superpowers abroad are countries with large scales of cultural heritage. To take France for an example, it, relying on its rich cultural heritage resources, now attracts 70 million tourists per year and is the number one tourism country in the world, with 29.9 billion dollars tourism revenue.11 In 2001, the Universal Declaration on Cultural Diversity adopted by United Nation Educational, Scientific, and Cultural Organization highlighted that cultural heritage is not only the common heritage of mankind, but also the source of communication, innovation, and creativity. In 2002, its Declaration of Istanbul also pointed out that the intangible cultural heritage is the common wealth of mankind and the source of human creativity.

 

Third, when underlying the value of order rather than that of right, these values are misplaced. Some currently effective laws and regulations in China continue to reflect a control-centered mindset that stresses the importance of management-oriented and order-maintaining law, while relatively neglecting the protection of rights. The autonomous regulations, for instance, are basically centered on the purpose of maintaining autonomous order, thus for a large degree are autonomous organs’ organization and work regulations. This shows that the relations between right, freedom and order are not well handled. The prerequisite and foundation of laws of rights or laws that protect rights can only be right and freedom. Order, in this instance, should only be the approach and tool for the service of right and freedom, which means that order is needed to ensure the realization of right and freedom, and it itself can never be an ultimate aim.12

 

 

To start with, there is no clear recognition of the right to share cultural profits in the Constitution. The Constitution, in its provisions, focuses on minority’s spiritual rights, such as, the right to religious belief freedom, the right to sustain and use language, and the right to sustain or reform customs, but never clearly stipulated the right to share cultural profits, which means that in the Constitution, the minority’s right to lawfully receive gains, when its traditional knowledge and biological resources are being directly or indirectly exploited commercially, is never mentioned. This is inconsistent with the requirement of the idea of socialist development benefit-sharing. In the next place, there is no mention of special protection regulation on the minority’s right to receive help from the state in the Constitution, meaning that the ethnic minority enjoys the right to receive help, including financial help, from state organs to develop culture. This goes against the Constitution’s value and aim in pursuit of social justice. Furthermore, the minority’s rights to cultural identity and development is yet to be officially recognized.13

 

At present, Chinese laws that concern ethnic minority’s cultural rights mainly include Copyright Law, Trademark Law, Patent Law, Law on the Protection of Cultural Relics, Anti-unfair Competition Law and so on. The provisions of these laws do not construct a complete system that protect the ethnic minority’s cultural rights. Compared with the International Covenant on Economic, Social and Cultural Rights, China’s legislations that protect the ethnic minority’s cultural rights neither include any content about citizens having the right to enjoy the profits brought by science and technology and their application, nor do they show respect to the ethnic minority’s freedom of cultural life.14 The same problem exists in local laws and regulations. Yunnan Province’s Regulation on the Protection of Traditional Ethnic and Folk Culture, for example, while chiefly using the approach of administrative management to protect traditional minority and folk culture, does not protect it as an objective of property right or define the relation between owners and users. Fujian Province’s Regulation on the Protection of Ethnic and Folk Culture, as another example, adds to the subjects of the ethnic minority’s cultural right protection "cultural heritance units of minority and folk". However, "units" not being a legal concept, should be replaced by "cultural heritance organization of minority and folk". 

 

 

Intellectual Property Law are principally the law that regulates the protection of ethnic minority’s cultural rights. Yet, to look into China’s current laws that concern intellectual property rights, it would be found that the system of intellectual property rights is designed to regulate modern intellectual rights, yet the traditional culture of ethnic minorities is seldom covered by its scope of protection.

 

Copyright Law requires that the protected works be with originality, specific subject, and limited duration of protection. As for traditional culture and knowledge of ethnic minorities, it is difficult to identify a specific author. Such culture and knowledge are produced by continuous and prolonged work, thus requiring permanent protection. Hence, the traditional culture of ethnic minorities cannot be sufficiently protected by Copyright Law. The folk song "Dragon-Boat Melody" of Tujia minority in Lee Chun, for instance, is repeatedly performed by many people, thus producing profound material and spiritual profits. Yet no one has ever paid remuneration to the people of Tujia minority in Lee Chun and their right of authorship is sometimes even violated. In addition, the above-mentioned two rights are different in their objectives, protection duration, protection functions and other aspects.15

 

Patent Law requires novelty to protect inventions, utility models and designs and the way to determine whether a patent is with novelty is to examine if it is already published in open publications. Traditional culture and knowledge of ethnic minorities, however, are seldom published in publications, but are usually open to the public in the ethnic minority region. Moreover, the duration of patent protection is against the protection of ethnic minority’s culture and knowledge. At present, the production techniques of some art wares of ethnic minorities are being exploited by many speculators to accumulate wealth. The ethnic groups, however, are unable to require reasonable usage fees through the Patent Law from these merchants. Some ethnic groups, using indigenous knowledge accumulated through thousands of years’ labor and lifestyles, preserved the much-prized biological diversity, but these plant species resources that are not yet improved, such as wild strains that are preserved by ethnic groups and native plants the local farmers grow, have not been included in the protection scope of Patent Law and are treated as freely obtainable goods. If these species resources can be properly utilized, it would generate great benefits to the society and abundant wealth and spiritual values to relevant users. Yet the reality is that the protection of right to authorship of traditional knowledge holders cannot even be assured, not to mention possible economic profits. There are provisions about the protection of genetic resources in the current Patent Law, prescribing that when inventions and creations that rely on genetic resources are concerned, the applicant should in patent application document specify the direct and original sources of such genetic resource; if the applicant cannot identify the original source, reasons should be given. But this provision explicitly exclude the protection of "scientific discoveries", "rules and methods for intellectual activities", "methods for the diagnosis or the treatment of diseases", "animal and plants species" and other items, while these items are usually important components of ethnic minority’s folk culture. From this we see that there is still limitation in the current Patent Law’s protection of ethnic minority’s rights to traditional culture.

 

Trademark Law is enacted to protect registered trademarks, but not all traditional culture and knowledge of ethnic minorities can satisfy the requirements of registration and the transfer mechanism of trademark right is not suitable for the protection of ethnic minority’s traditional culture and knowledge. The amended Trademark Law adds to its regulations provisions about "geographical indication" in particular. Article 16 prescribes that geographical indication refers to a symbol that indicates the region where a commodity is produced if such commodity’s quality, credibility or other features mainly depend on the place’s natural or humanistic factor. That is to say, geographical indications cannot be protected as common trademarks, but can be deemed as certification trademarks or collective trademarks. It is doubtless that this regulation can effectively protect ethnic minority’s intangible cultural heritage. But there are still deficiencies, one of which is that there is no regulation that protects the heritage-residing community’s right of informed consent if some other people register characters, images or symbols that belong to the ethnic minority’s intangible cultural heritage as trademarks.

 

 

Chinese legislation of the protection of ethnic minority’s cultural rights is, most of all, of declaration nature, focusing merely on actions exercising rights and without adequate attention to legal liability. For example, even if the rights about ‘every ethnic minority enjoying the freedom of using and developing its own language’ and ‘the autonomous organs in ethnic autonomous regions having the duty to safeguard local minorities’ freedom of using and developing their own language’ are stipulated in the Constitution and the Law on Regional Ethnic Autonomy, "crime of depriving or violating minority’s liberty of language' has not yet been included in the Criminal Law. And there is no clear regulation of relevant liability about how state organs, citizens, legal persons and other organizations when violating citizens’ freedom of using language or autonomous organs’ right to language autonomy should bear legal liability or be inflicted administrative penalties in Civil Law or Administrative Law. This would certainly affect the realization and implementation of the above-mentioned rights. The regulations about ethnic minority’s rights in autonomous regulations lack maneuverability as well, which is chiefly reflected in the following aspects:

 

Firstly, most of the rules set up by autonomous regulations are rules of conduct, with few rules of legal consequence, which is true with regulations of autonomous regulations both in autonomous prefectures and counties. Such legal pattern resembles that of the Constitution. In China, the regulation of autonomous regulations ought to directly guided by the regulation model of the Constitution and the Law on Regional Ethnic Autonomy. Thus, the behavior patterns set by autonomous regulations are mainly patterns that involve "should do”, “must do”, ”cannot do" and "advocate", lacking provisions about relevant legal consequences.

 

Secondly, the legal norms in autonomous regulations are mostly principles and policies with small percentage of legal rules. As a pack of concrete legal norms that apply to specific regions, autonomous regulations should not only be norms of principles, but also be rules that are specifically maneuverable. However, the maneuverability and suability of norms in autonomous regulations are barely satisfactory. And norms that are with little maneuverability and suability can also be lacking in authoritativeness.16

 

 

 The ethnic minority’s cultural rights are collective rights enjoyed by all ethnic groups. The state has the obligation to protection such rights by making use of the legal system, propaganda mechanism and other tools. Nevertheless, it is far from enough to protect such rights by relying solely on the coercive force of the state. The ethnic minority itself is required to exercise cultural initiative and take positive actions. Unfortunately, for now ethnic cadres and the masses in ethnic minority regions show insufficient awareness towards the importance of the ethnic culture and the sense of entitlement is far from established to reach such point as ethnic groups having an authentic sense of cultural initiative. This is reflected in two aspects:

 

First, the legislation in national autonomous regions does not pay sufficient attention to the protection of ethnic minority’s cultural rights. The rights of ethnic minorities include the ethnic groups’ political rights, cultural rights, the right to social life, legal rights and other rights.17 But the legislation in ethnic regions usually focuses on economy. To take Yunnan Province for an example, being a multi-ethnic region, Yunnan Province, according to the requirements of the state about building a legal system that is consistent with socialist market economy system and centered on achieving the two fundamental shifts, accelerated local legislation process with the spirit of reformation. Of all 95 laws and regulations formulated and approved by Yunnan Province, more than 50 percent are regulations that concerns economy.18 Local laws and regulations and specific decrees that are formulated in ethnic autonomous regions, prefectures and counties are mostly economic regulations as well. The same is true with the autonomous prefecture of Tujia and Miao minority in Hubei, Enshi where the author works. Of the 18 autonomous and specific regulations already promulgated by Enshi autonomous prefecture, only one concerns cultural rights, which is the Regulation on the Protection of Ethnic and Folk Culture.

 

Second, the relations between economic development and cultural right are not well dealt with in ethnic regions. It is a necessity for ethnic regions to develop ethnic minority cultural industry, vigorously push forward the economy in ethnic regions and hereby change the backwardness in the economy of ethnic minorities. But it certainly is shortsighted to blindly emphasizing on economic development while neglecting the protection of ethnic minority’s culture and their rights to such culture. The value in ethnic minority’s culture resides not merely in economy. As is mentioned above, it cannot be measured in monetary terms. Most importantly, these cultural resources of ethnic minorities are limited and not renewable. Once some ethnic cultural relics or ancient architecture are damaged, there is no turning back no matter how many economic expanses are spent. It is a pity that cases of damages to ethnic culture happens from time to time in ethnic regions, because these ethnic local governments, due to biased concept of development, simply treat social development as economic development and do not fully realize that cultural development is an important criteria to social development.

 

 

Since 1990s, China, for the protection of ethnic minority’s cultural rights, has significantly speeded up the process of concurrently pushing forward legislation and actual protection. In 2001 eventually, the Law on Intangible Cultural Heritage was officially promulgated. Besides, the protection degree of ethnic minority’s traditional culture was increased. For instance, of the first listed 518 representative projects of national intangible cultural heritage in 2006, 165 projects were that of ethnic minority culture; in the second list that was published in 2008, 190 of all 510 projects were ethnic minority projects; 2010’s published list saw that 106 of all 190 projects were of ethnic minority culture.19 In the forth list promulgated in 2014, 44 of 298 projects are that of ethnic minority culture. As we can see, the intangible cultural heritage of ethnic minorities has occupied over one third of the projects in the national representative project list of intangible cultural heritage, which can doubtlessly promote significantly the protection of ethnic minority’s culture. In the meantime, we should also see clearly that the protection of ethnic minority’s cultural rights is a systematic program that requires not only coercive methods like law, but also soft protective approaches outside the system like raising right awareness.

 

There are still many problems urgently in need of solution in the protection of ethnic minority’s cultural rights, of which the legislation is the top priority. Specifically, we should harden our work in the following aspects:

 

 

Currently China’s legislations to protect ethnic minority’s cultural right are too scattered to facilitate the implementation of laws. Legal system is a systematic organic whole that is composed by legal divisions. It requires the system to be complete in range, structured, and with inner coordination. The systematization of law requires the unity between the fundamental law and common laws and the coordination between substantive and procedural laws as it is said by Engels that ‘in modern countries, law should not only be consistent with the general economic condition and be its manifestation, but also show that there is a inner perfect harmony with no contradiction that result from inherent conflicts’.20 To protect ethnic minority’s cultural rights in law, China should build up a harmonious and complete system that consists of the constitution, laws, administrative regulations, rules and regulations, local laws and regulations, autonomous and specific regulations and other regulations, including Law on Cultural Preservation in Ethnic Autonomous Regions, Law on Promoting Education in Ethnic Autonomous Regions, Law on Promoting Cultural Industry in Ethnic Autonomous Regions and so on.

 

On the central legislation level, the legislature should include in Constitution’s basic principles the principle of respecting and protecting ethnic minority’s cultural rights. As it is mentioned above, the protection of ethnic minority’s cultural rights has not yet be confirmed as a basic principle in the current Constitution and the range of ethnic minority’s cultural rights is too narrow. Meanwhile, there are few regulations about the state’s obligation to respect and protect ethnic minority’s cultural rights and officially no channel to efficiently relieve the damages done to the ethnic minority’s cultural rights. Thus, it is required that the protection of ethnic minority’s cultural rights be confirmed as a constitutional principle, the protection range of ethnic minority’s cultural rights be enlarged by laws, and the state’s obligation to respect and protect ethnic minority’s cultural rights be explicitly established.

 

On the local legislation level, China should, considering the actual situations of different regions, stress local specific characteristics and the maneuverability of laws. Local legislations include local laws and regulations, government regulations, autonomous regulations, special regulations and so on. The maneuverability of laws should be emphasized when local legislation is involved. First, the subject of right should be explicitly prescribed. Nowadays in China’s legislations about ethnic minority’s culture, regulations about the subject of right are always vague and inconsistent, reducing the efficiency of laws’ application. The case of ‘song of boat in Wusuli river’ is an example of litigations that involve contentions about right subject. Second, legal liability should be expressly specified to effectively safeguard ethnic minority’s cultural rights once an incidence of right violation occurs. At present, there are much detailed regulations about crimes of violating ethnic rights in Chinese Criminal Law. In the forth chapter of Special Provisions in Criminal Law which is ''crimes of violation of citizens’ democratic rights and personal rights”, there stipulated four crimes of violating ethnic rights, namely crime of incitement to ethnic hatred, crime of ethnic discrimination, crime of publishing works of ethnic discrimination or insult, crime of unlawful deprivation of citizens’ freedom of religious belief, and offence against customs of ethnic minorities. However, in other relevant laws and regulations about ethnic minority’s cultural rights, the regulations about respective legal liabilities are still vague and not concrete, which obviously affects the implementation of laws.

 

 

As for the legislative procedure of ethnic minority’s cultural rights, there are a lot of circumstances of ‘legislation with the door closed’, which results in little consideration of the free will and wish of ethnic minorities. In fact, because ethnic groups are subjects of right, in legislation we should respect their will. However, of all currently effective laws, only in Article 51 of the Law on Regional Ethnic Autonomy there prescribed relevant regulations. It emphasizes that the autonomous organs in ethnic autonomous regions when dealing with specific problems that concern local ethnic minorities, should consult with their representatives thoroughly and respect their opinions. If we analyze this regulation carefully, we would discover that this exclusively deals with autonomous organs in ethnic autonomous regions, missing express mention in legislation of whether none-autonomous organs should solicit opinions from ethnic minorities when handling ethnic problems.

 

The degree of participation in the legislation of ethnic minority’s cultural rights certainly also depends on “ethnic minorities" "cultural awareness". In terms of social cultural development, the cultural diversity is always a normality of human’s cultural development as "human lives cannot be identical at any time in any place, and there must exist different kinds of human lives resulting from different cultures and civilization traditions”.21 The cultural diversity itself confirms the legitimacy to protect ethnic cultures. Thus, ethnic culture, when facing powerful cultures, should show due self-confidence, neither blindly xenophobia nor feeling inferior. This is rational "cultural awareness”, which means that people who live in different cultures, on the basis of awareness towards their own culture, strive to understand other cultures and such cultures’ relation with their own culture.22

 

The legislation about the protection of ethnic minority’s cultural rights should be founded on the above-mentioned cultural awareness. Throughout the whole process of legislation, the ethnic minority’s will should be fully respected. First of all, the legislature, when making legislation plans, should listen to the opinions of ethnic minorities. Second, the legislature should be more respectful for ethnic minorities’ opinions when it comes to the content of legislation. For now probably only the provincial legislation of Yunnan Province and Guizhou Province has relevant regulations in all levels of legislation about ethnic minority’s cultural right. The regulations of the two province both prescribe that the local minority’s will should be respected in matters concerning the building of eco-museums of ethnic culture and museums of ethnic culture villages, the nomination of ethnic and folk culture villages, and the delimitation of ethnic and folk cultural ecological conservation areas. The spirits of people-orientation and respect for the subjects of ethnic minority’s cultural rights are worth learning and promoting.

 

 

To protect ethnic minority’s cultural rights as a basic human right means that the state has to undertake certain obligations. According to the regulation of Article 6 of Maastricht Guidelines, ‘economic, social and cultural rights, same as civil and political rights, require that the state undertake three types of obligations which are obligations of respect, protection and realization and any failure to perform the above three obligations is deemed as a violation to such right’. This is true with ethnic minority’s cultural rights. From the respective of jurisprudence, ethnic minority’s cultural rights are positive rights whose realization needs help from the state. In another word, the state should, based on the need and development of ethnic minority’s culture, offer beneficial and necessary support and assistance to the realization of ethnic minority’s cultural rights. In every country’s constitution with any nature and form stipulated regulations about the state’s obligation to respect, protect, and realize ethnic minority’s cultural rights. The content of such regulations are : first, clearly stating the state’s obligation to respect ethnic minority’s cultural rights, which means that the state refrains from interference into ethnic minority’s liberty to have its own culture, believe in and carry out its own religion and use its own language; second, expressly stipulating the state’s obligation to protect ethnic minority’s cultural rights, which means that the state refrains from any restriction or deprivation of the right of ethnic minorities and their members to have their own culture, believe in and carry out their own religion and use their own language by using the state’s power and in the meantime prevents others from interfering with such rights; third, clearly stipulating the state’s obligation to realize ethnic minority’s cultural rights, which means that the state shall take necessary measures in legislation, administration, judicature and practice to make sure ethnic minority’s cultural rights can be realized to a maximum extent and by providing proper resources, offer positive help to ethnic minorities to efficiently participate in social cultural life, enjoy scientific progress and its benefits, and properly care for ethnic groups’ cultural benefits in the formulation of state policies and international cooperation.23

 

 

Culture itself is constantly developing and changing. As some scholars dissect, due to internal and external factors, it is inevitable for culture to mutate or evolve.24 The same is true with ethnic minority’s culture. The purpose of protecting ethnic minority’s cultural rights is essentially to better develop ethnic culture and finally realize human’s freedom and equality, not to protect for protection’s sake. Culture that does not develop would become dead culture. The reason that many cultures of the world in the history should fade away and perish is that such cultures did not commune with other cultures and thereby evolve. Examples of such cultures are Maya culture and Aztec culture.

 

To protect ethnic minority’s cultural rights does not mean to reject assimilating foreign cultures. One of the laws of cultural development is that it would differentiate and integrate. Cultural differentiation refers to the process of a new cultural system splitting up from an old one. Cultural integration is the process of different cultures integrating after interacting, assimilating, merging and reconciling with each other.25 The only way for ethnic minority culture to development is by interacting with other cultures and assimilating proper components in other cultures. "The progress of human culture depends on whether the social community can enjoy the opportunity to assimilate experiences from other adjacent social communities……A nation that isolates itself or pursues closed-door policy is doomed to standstill in its culture and social development."26

 

In conclusion, to protection ethnic minority’s culture and cultural rights, we should not exclusively aim at ethnic minority’s traditional culture. More importantly, we should consider the problem of ethnic minority’s cultural development and changes. This means that our essential goad lies in promoting its development on the basis of protection and strengthening its viability and creativity. Mutation or evolvement is not the violation of ethnic minority’s cultural rights, but to add to ethnic minority’s traditional culture new content to pump viability into ethnic traditional culture and enlarge the extension of ethnic minority’s cultural rights. The protection of ethnic minority’s culture demands it not only to assimilate the essence of outstanding culture, but to innovate along with the development of modern civilization.27

 

 

Ethnic minority’s cultural rights, being fundamental human rights, play an important part in a country’s value system of human rights. China is a multi-ethnic country. Its rich and distinctive ethnic culture is not only the origin of Chinese culture that can be traced back to ancient times, but also the inexhaustible impetus and source for cultural creativity now and in the future. Nowadays, the international community are paying more and more attentions to the legal protection of cultural rights. The question about how to enhance and improve China’s legal protection of ethnic minority’s cultural rights has become an important theoretical proposition and practical subject. China’s legal protection of ethnic minority’s cultural rights should, on the basis of assimilating advanced ideas from foreign and international society, improve the idea of protection, enlarge the content of protection, and strengthen protection measures to make sure that ethnic minority’s cultural rights are effectively protected and ultimately to promote the harmonious development of the whole society.

 

* SIMA Junlian (司马俊莲), professor and assistant dean of Law School, Hubei University for Nationalities.

 

1. Shan, Xiaohong, “A Discussion on the Protection of Chinese Ethnic Minority’s Cultural Right and the Building of a Harmonious Socialist Society,” Theory and Reform, No. 5 (2005).

 

2. See Wang Heyun, and Gao Zhao’an, Research on the Legal Mechanism of Chinese Intangible Cultural Heritage Protection, Intellectual Property Publishing House, 2009, at 63-64.

 

3. A. J. M, Milne, The Diversity of Man and Human Rights, Encyclopedia of China Publishing House, 1995, at 1.

 

4. Li Guozhi, An Overview of Human Rights Theory in Marxism, Sichuan University Press, 1992, at 226-229.

 

5. See De Quanying and Alipu Simayi, “The Theory of the Rule of Law Looking on Multi-culture Relationship,”  Law and Social Development, No. 3 (2005).

 

6. See Wang Heyun, “Analysis on Multiple Values of Intangible Cultural Heritage”, last visited on September 6, 2016.

 

7. See Zeng Xianyi, “Minority rights and Constitutionalism Construction,” National Research, No. 6 (2004).

 

8. Chen Wei, Hu Bin, et al, “The Constitution of the Value System of Modern Chinese Historical Cultural Heritage,” Journal of Chongqing Architecture University, No. 4 (2006).

 

9. Zhong Jinwen, “Go-West Campaign and the promotion and protection of Small Minority’s Cultural Heritage,” Nationalities Research in Qsinghai, No. 1 (2001).

 

10. See Dai Luyuan, “Current State of Research on Yunnan Province’s indigenous knowledge,” in Yunnan Agricultural Science and Technology, No. 6 (2002).

 

11. See supra note 8.

 

12. See Zeng Xianyi, “On the Legislative Foundation of Autonomous Regulations,” Journal of South-Central University for Nationalities (Humanities and Social Sciences), No. 4 (2004).

 

13. See Hu Wei and Qin Shouqin, “The Deficiency and Perfection of China’s Constitutional Protection of Ethnic Minority’s Cultural Right,” Guizhou Ethnic Studies, No. 5 (2001).

 

14. See Tian Yan and Wang, Rang, “Chinese Legislation of the Protection of Ethnic Minority’s Cultural Right and its Perfection,” Journal of Heilongjiang Administrative Cadre Institute of Politics and Law, No. 6 (2006).

 

15. See supra note 3, at 325-326.

 

16. Zeng Xianyi, “The Legislative Basis of Autonomous Regulations,” Journal of South-Central University for Nationalities (Humanities and Social Sciences), No. 4 (2004).

 

17. See supra note 3,at 325-326.

 

18. Ibid.

 

19. Li Junqing, “Public Service and the Protection of Ethnic Minority’s Culture,” in Exchanging Materials for China-Australia Academic Seminar for Public Service and the Protection of Ethnic Minority’s Culture (hard copy, 2011), at 55.

 

20. See Zhang Wenxian, Jurisprudence, 3rd edition, Higher Education Press, Peking University Press, 2007, at 126.

 

21. Selected Works of Marx and Engels, vol. 4, the People’s Publishing House, 1995, at 702.

 

22. Supra note 4, at 171.

 

23. See Zhou Yong, Jurisprudence of Minority’s Rights, Social Documentation Publishing House, 2002, at 41.

 

24. See Fei Xiaotong, “Cultural Awareness and Agree to Disagree,” Folklore Studies, No. 3 (2000).

 

25. See Lin Yaohua, A General Theory of Enthnology, Central University for Nationalities Press, 1997, at 396.

 

26. Ibid.

 

27. See L. S.Starvrianos, Global History—the World Before 1500, Shanghai Academy of Social Science Press, 1999, at 48.