LI Lei*

 

 

Keywords: human rights treaty bodies, concluding observations, ethnic minority, rights to work

 

 

The right to work is related to human dignity and development and it is a very important human right in a market economy. The relevant matters are subject to the adjustment of UN Convention of human rights such as the International Convention of Eliminating All Kinds of Racial Discrimination and the International Covenant on Economic, Social and Cultural Rights. After acceding to these conventions, China has submitted periodic reports to the corresponding human rights treaty bodies (that is the Committee on the Elimination of Racial Discrimination and the Committee on Economic, Social and Cultural Rights, etc.) in accordance with the provisions of the Convention to accept the review. With the attitude of openness and seriousness, China has responded positively to the concluding observations made by these agencies on China’s periodic reports.¹

 

The United Nations human rights treaty bodies are expert bodies elected in accordance with the provisions of human rights conventions. After considering the periodic reports submitted by the State party, they generally raise negative concerns and corresponding recommendations in addition to affirming the efforts and achievements of the State party. How the State party treats these concerns and recommendations is always a concern of these institutions and other aspects. In considering the State party’s next periodic report, these agencies will review the State party’s response to the previous concluding observations, at the same time, affirm positive measures, continue to express concern about unanswered and unresolved issues, and urge improvements.

 

In addition, the media, non-governmental organizations, etc. often use the negative concerns raised by human rights treaty bodies as an important basis for evaluating the human rights situation in the State party. But some of the concerns may be caused by false reports and stigmatizing comments made by the media and non-governmental organizations. In fact, the rules of procedure of the UN human rights treaty bodies allow non-governmental organizations to submit written and verbal information.² The concluding observations use vague words such as “reported” and “sources of information outside China”, which acknowledge that some of the information comes from sources such as the media and non-governmental organizations.³ In this way, the concluding observations of human rights treaty bodies may differ from China’s perception of its efforts, and may sometimes even be the opposite. China certainly must take this fact seriously.

 

The actual situation in China is that the State has done everything possible to promote the equal enjoyment of the right to work by ethnic minorities. After the initial results of reform and opening-up, China has actively promoted urbanization and the development of the western region. In the meantime, China has adopted measures to promote the employment of ethnic minority workers living in the western region in the non-agricultural sector, but these measures are now still restricted by the local factors such as the natural environment and human capital levels. According to the data of the sixth national census, only the ethnic minorities such as the Korean nationality have an average higher education level than the Han, while the education level of other ethnic groups are generally lower. As such, many other ethnic minorities face challenges in obtaining employment opportunities and upgrading their professional level.⁴ This is an important issue in the implementation of the right to work for people of non-Han ethnic groups. It is also the focus of international media and non-governmental organizations’ comments on China’s human rights, which has attracted the attention of the UN human rights treaty bodies.

 

In recent deliberations, after reviewing China’s relevant periodic reports, the UN human rights treaty bodies have not only affirmed the Chinese government’s measures to develop the economy and promote employment in ethnic minority areas, but also raised negative concerns and opinions. The latter mainly involves three questions: (1) Data adequacy issues for periodic reports. The treaty bodies believe that China’s report does not provide sufficient information, especially for ethnic minority groups, so that it is impossible to accurately determine the status of ethnic minority rights.⁵ (2) The problem of the asymmetry of employment status of ethnic minority immigrants and Han immigrants. The human rights treaty bodies believe that ethnic minorities are indirectly discriminated against in the employment field because of the household registration system, and stress that there are “reports” that “the influx of Han people into ethnic minority areas” is one of the reasons for the high unemployment rate among ethnic groups such as Tibetans, Uygurs and Mongolians.⁶ (3) The so-called universal and persistent employment discrimination problem. The concluding observations state that Chinese ethnic minorities “have been widely discriminated against” in terms of employment and urge China to take measures to combat it.⁷

 

Among the three concerns, the first item has a certain factual basis, so that China should continue to improve its periodic reports. The second item is not completely false, but the way in which the human rights treaty bodies raise this negative concern echoes the false rumors that the Chinese government seeks to change the demographic structure of ethnic minority areas, which creates a bad impression and has the wrong implications. China should clarify the nature of the problems, explain the methods being employed to resolve them and try to eliminate misunderstandings. The third item does not distinguish the nature of discrimination. It does not distinguish whether the relevant discrimination is a phenomenon of social self-discovery or because of the role of public power. It also exaggerates the existence scope and duration of discrimination. China should treat these comments with an open and serious attitude, make differentiated responses according to different situations. In this way, it can initiate constructive dialogue.

 

 

The UN human rights treaty bodies emphasize the issue of data adequacy based on facts. Although China actively implements international human rights conventions and fulfills its reporting obligations with the utmost goodwill, China is the largest developing country in the world. Its available resources such as human resources, academic resources and financial resources are limited. China can only gradually improve its information collection and thus the content of its periodic reports, and so strive to meet the information requirements of the human rights treaty bodies.

 

Since 2000, the UN human rights treaty bodies have raised this issue at least three times, one of which refers to economic, social and cultural rights and two to the right to work. (1) After considering the first periodic report submitted by China on time, the Committee on Economic, Social and Cultural Rights in 2005 said it was regrettable that China “failed to provide sufficient information on the enjoyment of the economic, social and cultural rights provided by the Convention in the minority areas.”⁸ It requested “the State party to provide detailed information in its next periodic report, including comparable disaggregated statistics. Progress made and obstacles encountered in the implementation of the provisions of the Convention for minority areas, in particular the Xinjiang Uygur autonomous region and the Tibet autonomous region are assessed.”⁹ (2) After combining and reviewing the China’s 10th to 13th periodic reports in 2009, the Committee on the Elimination of Racial Discrimination emphasized that China did not provide disaggregated statistics on the socio-economic status of ethnic minorities. It requested that “the State party includes in its next periodic report updated and detailed statistical data on the socio-economic situation of the population, disaggregated by ethnic group and nationalities;¹⁰ And it requested the State party to provide more detailed information in its next periodic report to explain the representation of ethnic minorities in public life and their status as higher-level positions.”¹¹ (3) After considering the second periodic report of China, the Committee on Economic, Social and Cultural Rights emphasized “currently unemployment statistics that are not classified by ethnicity, which limits an assessment of the right to work of the enjoy-ment of ethnic minorities in 2014.”¹² “The Committee, in accordance with previous recommendations(E/C.12/1/ Add.107, para. 67), urges the State party to strengthen the unemployment data collection system in order to better assess the situation of minorities.”¹³

 

The above comments have a certain factual basis. The Chinese government submits periodic reports in accordance with the provisions of the treaty, which requires departments to provide the necessary information, but China’s relevant mechanisms are still insufficient. For example, (1) The China Statistical Yearbook only has employment information in urban and rural areas and sub-regions, and there is no em-ployment information for ethnic groups. The China National Statistical Yearbook con-tains employment information in sub-regions of ethnic autonomous areas, and there is no employment information of ethnic groups. (2) The Tibet Statistical Yearbook only releases the number of Tibetan workers in state-owned economic units before 2003. The Sichuan and Qinghai Statistical Yearbooks publishes employment data for cities and states, and does not release employment data for ethnic groups. In the Qinghai Statistical Yearbook, the main economic indicators of ethnic autonomous areas only have data on Tibetan areas in some years, and it is impossible to extract Tibetan employment data. The Gannan Statistical Yearbook also lacks employment information for ethnic groups. (3) The census conducted every ten years adopts the indicators of ethnic groups. According to the national statistics, “the person in charge of the party and government organizations”, “the professional technicians”, “the personnel”, “the business and service personnel”, “agricultural, forestry, animal husbandry and fishery workers”, “the production and transportation workers” and the number of “others”, but the length of the census is long, which is not conducive to timely judgment of the employment situation of ethnic minorities. (4) The Decree of Government Information Openness clearly requires the people’s governments at or above the county level and their work departments to make government policies that promote employment (and poverty alleviation, education, medical care) and other aspects of policies, measures and their implementation as key public information.¹⁴ However, the existing govern-ment work reports, statistical yearbooks, local chronicles and other information only involve a small number of indicators, and the information is not sufficient. (5) The Law on Regional Ethnic Autonomy stipulates that enterprises and institutions in ethnic autonomous areas shall preferentially recruit minority nationals.¹⁵ The Employment Promotion Law stipulates that employers shall properly take care of minority laborers when recruiting personnel.¹⁶ Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council requires that the exploitation of natural resources in ethnic autonomous areas should support local promotion of employment;¹⁷ the governments at all levels of national autonomous areas guide and organize the masses to go out for business, and the relevant local governments are to protect the legitimate rights and interests of migrants and ethnic minorities through business people;¹⁸ the people’s government at higher levels and their work departments, the people’s governments of ethnic autonomous areas and their work departments shall be equipped with leaders of ethnic minorities in accordance with regulations, shall be selected as ethnic minorities in accordance with open selection and competition for the selection of leaders, and shall reserve places and position for ethnic minorities.¹⁹ The state has intensified training on cadres of ethnic and national autonomous areas, and established and improved the exchange system between cadres of ethnic autonomous areas and central state organs and economically developed regions.²⁰ Currently, these data are not universally included in the scope of government information disclosure.

 

The department within the Chinese government responsible for preparing peri-odic reports in accordance with the provisions of human rights treaties clearly cannot go beyond the existing mechanisms and organize relevant departments to provide information that meets the higher requirements of the human rights treaty bodies. China should accept the reasonable opinions of the human rights treaty bodies and, within the scope of financial resources, human resources, and academic accumulation permits, do their utmost to approach the information disclosure methods expected by human rights treaty bodies. The key is to use existing resources to organize relevant departments and local governments to formulate feasible plans and collect necessary information as soon as possible.

 

 

The UN human rights treaty bodies propose that the migration of Han nationality to ethnic minority areas affects the employment of local ethnic minorities and causes the difficult employment of ethnic minority immigrants in different places, which has a certain factual basis, but the human rights treaty bodies have made debatable judgments on the nature of the problem. The decisive force that led to this problem is the market’s spontaneous resource allocation mechanism, not the country’s population and employment policies. In fact, the national policy is to do everything possible to promote minority workers to do appropriate work in their local and other areas. In addition to fully explain the internal and external issues, the Chinese side should also regularly investigate and deal with specific problems in implementing policies and laws to prevent the continuation and expansion of misunderstandings.

 

According to the concluding observations of the Committee on the Elimination of Racial Discrimination in 2009, “it is reported that the system of rewarding work and settlement in ethnic minority autonomous areas may lead to substantial changes in the demographic composition”, suggesting that “any policy or incentive measures on the population composition of ethnic minority autonomous regions for major changes should be reviewed.”²¹ The observations also pointed out that the household registration system indirectly led to discrimination against domestic immigrants in employment, affected ethnic minority personnel.²² It recommended that China implement relevant policies and “reform the household registration system to ensure that domes-tic immigrants, especially ethnic minority personnel, can enjoy the same job of the urban residents”. The concluding observations of the Committee on Economic, Social and Cultural Rights in 2014, stated, “It is reported that the unemployment rate of ethnic minority personnel, especially Tibetans, Uighurs and Mongolians, is high, partly because of the influx of Han Chinese into minority areas.”²³ “It is recommended that the State party pay special attention to ethnic minorities, strengthen existing programs and adopt effective strategies to reduce unemployment rates in the most unemployed areas.”²⁴ Combining these expressions will form an image that the immigrants flowing outward from minority areas and immigrants entering ethnic minority areas are in an asymmetrical state of employment. On the one hand, immigrants from ethnic minority areas, especially those who go out to work through commercial workers, cannot easily integrate into the inflowing land because of the household registration system; on the other hand, immigrants have obtained many jobs in private and individual economic units, State-owned economic units, and other economic units in minority areas.

 

Minority immigrants are indirectly affected by employment in the employment system because of the household registration system. This is a manifestation of the lagging institutional changes in the transition from a planned economy to a market economy. This problem is being gradually resolved through reform. The State first canceled registration projects specifically targeting migrant workers, restrictions on occupational work types, and charges that did not meet the requirements of the State Council. It was forbidden to discriminate against migrant workers in terms of techni-cal qualifications and health conditions, and prohibited the inflow of land to distribute the expenses of public security management from migrant workers and their enterprises.²⁵ Then it was forbidden to retreat and exclude migrant workers on the grounds of solving the employment of urban labor;²⁶ finally, it was decided to gradually realize the basic public services of the towns and the migrant workers who lived in the towns and their accompanying families.²⁷ Not only that, the Chinese government has also adopted a policy to encourage ethnic minorities to go out for business. The Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council proposed that all levels of government in ethnic autonomous areas guide and organize the masses to go out to work through commercial workers and relevant local governments to effectively protect the legiti-mate rights and interests of foreign trade and economic minorities.²⁸

 

Immigrants get more jobs in minority areas, which is the result of spontaneous labor allocation in the market. Some Tibetan scholars pointed out that “many of those who choose to hire immigrants are Tibetan companies and employers who have obtained land, government contracts, and bank loans by preferential policies.”²⁹ Observers should not completely oppose laborers from different geographical sources and different ethnic origins, and in fact, those labors are so complementary that they participate in the development of minority areas and benefit from it. The Tibetan entrepreneur who runs the S Hotel in the Chengguan District of Lhasa told the author that he grew up with the Han Chinese predecessors as a tour guide in the 1990s. At the hotel, employees from different ethnic groups and different regions showed a complementary symbiotic relationship. At the end of 2015, the hotel had 34 Tibetan employees and 20 Han employees, accounting for 63% and 37% respectively. The household registration of seven of the Tibetan employees was the S hotel, and the remaining 27 are migrant workers from in and outside the district, mostly room and restaurant waiters. The Han employees are immigrants moving across provinces, mostly in the sales department, finance department, engineering department, and kitchen. Employees of different nationalities are located in different positions, but they are all beneficiaries of the development of the local hotel industry. Of course, in the future, efforts should be made to improve the human capital level of minority workers and help them secure higher-level positions.

 

The Chinese government attaches great importance to the challenges brought by the spontaneous market mechanism to minority laborers, and should make a more detailed explanation to the UN human rights treaty bodies to reduce and eliminate misunderstandings. For example, the Employment Promotion Law requires employers to properly care for minority job seekers.³⁰ The Law on Regional Ethnic Autonomy stipulates that the organs of self-government shall cultivate a large number of cadres, professional talents and skilled workers from local ethnic groups. The organs of self-government shall employ the personnel of the ethnic groups and other ethnic minorities that implement regional autonomy in accordance with the principle of proper care;³¹ enterprises and institutions shall preferentially recruit a small number of minority laborers from rural and pastoral areas;³² enterprises and institutions affiliated with higher-level state organs and doing business in ethnic autonomous areas should preferentially recruit local minority laborers;³³ higher-level State organs can help ethnic autonomous areas cultivate a large number of local minority Ethnic cadres, professional talents, and skilled workers.³⁴ The Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council require the people’s government at higher levels, its work departments, the people’s governments of ethnic autonomous areas and their work departments to equip the leaders of ethnic minorities in accordance with regulations, and select leaders according to open selection and competition to reserve quotas and positions for ethnic minorities;³⁵ the State will increase the training of the cadres of ethnic autonomous areas, and establish and improve the exchange system between cadres of ethnic autonomous areas and central State organs and economically developed regions.³⁶

 

 

In its concluding observations in 2014, the Committee on Economic, Social and Cultural Rights stated that ethnic minorities in China experienced widespread and persistent discrimination in employment. In its concluding observations on the review of China’s periodic report in 2014, the committee stated that although the Chinese Constitution and laws incorporate the principle of non-discrimination, there is no complete anti-discrimination law that is not conducive to protecting all marginalized and vulnerable individuals and groups enjoying economic, social and cultural rights;³⁷ ethnic mi-norities, especially ethnic minorities in the western provinces and regions, “have been widely discriminated against” in employment and other fields, and it “urged” China to adopt comprehensive anti-discrimination laws and recommended that China focus on western provinces and regions. Combating all forms of discrimination against minorities and ensuring that they enjoy all economic, social and cultural rights, including the right to legal work.³⁸ Earlier, the Committee on Economic, Social and Cultural Rights made a cautious statement in the 2005 concluding observations that “reported” that Chinese minorities are discriminated against in employment and the Commission found it regrettable that China did not provide sufficient information to explain the rights of ethnic minorities. The commentary in 2014 stated that the Commission itself determined that ethnic minorities in China were discriminated against in areas such as employment, and in 2005 it was stated that the Commission noted such reports. Comparing the two, it is not difficult to find that the Committee’s views on China’s existing practices have gone from suspicion to categorical denial.³⁹ The negative evaluation made by the Commission in 2014 with absolute expression differs greatly from the facts. It can be said that it is a fact that discrimination against ethnic minority workers still exists to a certain extent. However, it is debatable if it can be generally concluded that Chinese ethnic minorities “have been widely discriminated against” in employment and other fields.

 

 

The Constitution stipulates that “citizens of the People’s Republic of China are equal before the law”,⁴⁰ “Everyone in the People’s Republic of China is equal” “Prohibit discrimination and oppression against any nation”.⁴¹ The Labor Law stipulates the prohibition of employment discrimination based on factors such as ethnicity and religious beliefs.⁴² The Employment Promotion Law reaffirms this provision.⁴³ The Labor Law confirms that laws and regulations can make special (favorable) provisions for minority employment matters. The Employment Promotion Law requires employers to properly take care of minority job seekers. The Regional Ethnic Autonomy Law and the Several Provisions on the Implementation of the Law of the People’s Republic of China on Regional Ethnic Autonomy by the State Council have made a number of regulations to promote the employment of ethnic minorities.⁴⁴ It is particularly note-worthy that in the recruitment of State-owned economic units, minority candidates have been given extra points, the admission scores have been lowered, bilingual positions established, and the number of bilingual job plans increased⁴⁵ according to the source of students. In practice, candidates choose to take tests in their ethnic language.

 

 

In order to compensate for the one-sidedness of the market, the Chinese government has made interventions. Governments at all levels have expanded the recruitment potential of State-owned economic units through public recruitment, interest subsidies to support self-employment, encourage mobile employment, support county economies facilitate the transfer the employment of farmers and herdsmen, organize employment and aid to Tibetans, and develop public welfare jobs for minority employment. The Chinese government has also improved the human capital level of minority workers by increasing the investment in education at all levels, and strives to improve the occupational structure of minority workers. However, the government’s interventions in the market have their limits. It is impossible to ensure that ethnic minority workers have access to jobs and satisfactory jobs through public power alone. Ethnic workers must fully enjoy the right to work, and should rely on the economic growth of the minority areas. It also requires ethnic minority citizens to make full use of the State’s support policies to better grasp scientific and cultural knowledge and production and management skills.

 

 

This is a complicated and arduous task that cannot be accomplished overnight. First of all, social discrimination will not be eliminated to a certain extent with the strengthening of ethnic exchanges as some researchers have suggest. On the contrary, in the market economy environment where inter-ethnic communication is closer, individual level or a certain range of inter-ethnic conflicts sometimes occur, and observers should not attribute the individual circumstances of certain units and personnel to minority workers to systematic discrimination. For example, a Taiwan-funded enterprise has made a decision not to recruit workers of a particular ethnic minority because a minority worker had an argument with other workers that escalated into a group fight, but such actions are prohibited. Second, social discrimination is not entirely the result of Han chauvinism. Narrow local ethnicism is also an important cause of spontaneous discrimination in society. Eliminating spontaneous discrimination in society requires the joint efforts of citizens of all ethnic groups. In recent years, there have been several provinces where Han people and ethnic minority personnel have jointly encouraged the elderly to purchase health care products at high prices. When the elderly went home, they found that the market price of the health care products was much lower than the purchase price, and therefore a dispute arose when they requested a refund.

 

It should be added that some minority laborers do not know the law and do not abide by the law. It is not discriminatory to take enforcement measures against their actions according to law. For example, in real life, there are phenomena in which ethnic minority migrants sell swords and bows in traffic lanes. It is illegal to sell such swords and bows. The public security organs conduct legal education for these minority migrants and require them to stop any illegal activities and take administrative enforcement measures when necessary. This is not ethnic discrimination, but a normal law enforcement activity.

 

The role of the market, discrimination in society, and the lack of legal concepts of some minority workers are enough to adversely affect the employment of ethnic minorities. This does not mean that the Chinese government condones discrimination against ethnic minorities in employment, and it does not mean that the Chinese government implements a systematic discrimination policy. The Chinese government is trying to contain and eliminate rumors by strengthening information disclosure. Judging from the evaluation of the UN human rights treaty bodies, in the future the Chinese government should more fully clarify the truth about rumors and misunderstandings, and promote and strengthen the constructive dialogue between the UN human rights treaty bodies and the Chinese government. The human rights treaty bodies have generally concluded that Chinese ethnic minorities “have been widely discriminated against” in terms of employment, especially considering that such expressions imply that the system imposes systematic discrimination, and should focus on eliminating misunderstandings by fully introducing Chinese practices. Existing news reports and official periodic reports have not fully responded to false reports, leaving room for the spread and strengthening of rumors. China should focus on improving information disclosure and enhancing credibility. When the human rights treaty bodies are invit-ed to evaluate their own practices in a fair manner, they should first pay attention to the intelligibility of the sufficiency of information supply, and it is not appropriate to adopt fierce rhetoric. This is true even if the Chinese side views concerns and opinions that are based on misunderstandings or even prejudice.

 

 

Since the implementation of the urbanization and western development strategy, the status of working rights of Chinese minority laborers has been a key area for exter-nal observers to question. Negative comments have emerged one after another, which has affected the conclusions of the UN human rights treaty bodies’ review of China’s periodic reports. In this regard, China should respond in a differentiated manner according to whether the specific content of the negative opinions has a factual basis, and maintain openness and clarify its principles, and combine the effective protection of human rights with the international-friendly and constructive international dialogue to make greater contributions to the promotion of national practices and international cooperation.

 

Due to the high requirements of the UN human rights treaty bodies for the State party’s periodic reports, the length of the reports and the concluding observations as a result of the review are also relatively long, while there is now a request for a reduction in length. Compressing the length of these files does not mean that external observers are relaxing their attention. On the contrary, from the perspective of psychological laws, the shorter the length of these documents is, the more general the expression is, and the more the questions from the outside China will be stronger, and the Chinese government still needs to strengthen the optimization of information disclosure.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Translated by LI Man)