[Logo: IR2008] Incorporating Responsibility: 2008
A campaign by Human Rights in China.


Advocacy Update: China Reviewed over Economic, Social, and Cultural Rights
[First printed in China Rights Forum, No.3 2005]

A United Nations Committee found that China needs to do more to ensure that all of its citizens benefit equally from its phenomenal economic growth.


The PRC's progress in implementing the International Covenant on Economic, Social and Cultural Rights (ICESCR)[1] came under review during the 34th session of the United Nations Committee on Economic, Social and Cultural Rights (the Committee), convened between April 25 and May 13 this year.

Under the terms of the ICESCR, each state party agrees to take steps, to the maximum of its available resources, toward achieving the full realization of rights recognized in the Covenant, including the adoption of legislative measures. Furthermore, state parties must ensure that the progress in achieving these rights is shared on a non-discriminatory basis among all segments of society.[2]

By signing the ICESCR on October 27, 1997, and ratifying it on March 27, 2001, the PRC has agreed to respect and protect the exercise of the rights included in the Covenant.As required by the Covenant,[3] the PRC in 2004 submitted its initial report on implementation of the ICESCR for consideration during the Committee's 34th session.

As part of HRIC's international advocacy and participation in UN human rights monitoring processes, in April 2005, HRIC submitted a 46-page parallel NGO report to the Committee highlighting the need to review the PRC's progress within the framework of the widening social and economic disparities between China's coastal and inland provinces, urban and rural areas and within regions as China has recorded neardouble- digit economic growth over the past two decades. In addition to the NGO report, HRIC also participated in NGO briefings and meetings with expert members of the Committee. This advocacy update summarizes the PRC report and HRIC's report organized along the Articles of the ICESCR, and reports on the findings and conclusions of the ICSECR following its review of the PRC report.

The PRC report relies primarily on national aggregated data and focuses on urban areas, which as of 2002 represented just 37.7 percent of the total population. Furthermore, the pervasive control and regulation of information by the PRC government through State Secrets, State Security and other laws, social and police controls and censorship technology, not only undermines effective monitoring and review of the PRC government's compliance with the Covenant, but also impedes the government's own ability to formulate properly designed policies and programs that facilitate public scrutiny and participation.

In its report, HRIC looks primarily at the PRC's implementation of its obligations under the ICESCR specifically as they relate to "worse-off regions or areas" and "specific groups or subgroups which appear to be particularly vulnerable or disadvantaged," a focus mandated by the Covenant.

HRIC's report addresses the hidden costs of China's inequitable distribution of the benefits of economic growth and the excessive burden it has imposed on vulnerable and marginalized groups, and concludes that the PRC government needs more concrete and systematic reporting, monitoring and evaluation of its extensive formal legislation and implementation efforts. Despite extensive promulgation of reform legislation and policies that have generated economic growth of nearly ten percent per annum during the past 20 years, vulnerable populations¡ªrural inhabitants, ethnic minorities, women and migrant workers, and their families¡ªare still largely excluded from the benefits of China's economic growth due to the preferential development of urban areas and to mechanisms such as the hukou registration system.

Despite past and present official announcements regarding reforms or dismantling of the hukou system, the restrictive registration system still deprives migrants of equal access to housing, healthcare and work benefits.The actual implementation of any reforms, including an administrative licensing system for urban residency, will need to be carefully monitored.

The growing social and economic gap is also fueling increasing social unrest and instability. Official police data for 2003 acknowledge least 58,000 "mass incidents" involving more than three million people protesting a range of issues including corruption, forced relocations and evictions, lay-offs and unpaid wages.

In short, four years after ratifying the ICESCR, the PRC government has yet to use "all available means" to take deliberate, concrete and targeted steps towards realizing the rights recognized in the Covenant, and has not effectively complied with its immediate obligation of non-discrimination. It has also failed to adhere to the principles enumerated in the Committee's Declaration on the Right to Development: to adopt national policies that promote fair distribution of the benefits of development and equal opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income.


ICESCR Article 2:
Measures Taken to Guarantee the Full Realization of Rights

The PRC's report emphasizes both the hard data of economic growth and the promulgation of extensive legislation to demonstrate the steps it has taken to implement the rights under the Covenant. However, as the General Comments issued by the Committee outline, obligations of conduct and result are not necessarily fulfilled through legislative measures alone; the full range of measures adopted, the basis on which they are considered most appropriate, and the identification of benchmarks and goals are important in assessing a state party's record.

Although the PRC government's report acknowledges a poverty gap in China, it fails to admit and detail the extent to which vulnerable populations are increasingly disadvantaged despite economic growth. By presenting only national aggregate data on overall economic growth, the PRC report cannot contribute to an accurate assessment of its implementation of the rights under the Covenant in relation to worse-off regions and vulnerable populations, and undermines development of effective policy interventions.

In order to supplement the incomplete analysis offered by the PRC report, HRIC's report uses available data and international standards to analyze the situation of particular groups and regions, showing serious inequality between China's urban and rural residents, between its Han and ethnic minority groups, and between its settled and migrant populations.

The PRC government is also under an obligation to give effect to the Covenant in its domestic legal order. However, the legislation it has passed does not clearly and adequately set forth avenues of redress for individuals and groups who believe their rights have been infringed. In addition to the formal legal system, the right to criticize and appeal to the government (the petitions and visits system) is guaranteed under Chinese law, and is used by increasingly large numbers of individuals. Yet the use of Public Security measures and detentions against petitioners casts doubt on the ability to freely exercise these rights, and undercuts the petition system as an effective means of grievance and redress.


ICESCR Articles 6 and 7:
The Right to Work and to Favorable Working Conditions

The unequal economic opportunities and income resulting from development policies that favor urban areas has led to increased rural-urban migration as rural inhabitants move to urban areas to seek better employment opportunities.The hukou system also continues to place an inequitable burden on migrant workers in terms of unfavorable and unjust working conditions, including non-payment of wages, unsafe working environments and working hours that exceed the maximum under the labor law.These problems are compounded by China's state secrets regulatory framework, which limits access to information about workplace health and safety and industrial accidents.The lack of transparency impacts particularly those vulnerable groups—migrant workers and rural residents— who make up a large proportion of those working in factories and mines.


ICESCR Article 8:
The Right to Join a Trade Union

The PRC's declaration regarding Article 8.1(a) states that application shall be consistent with the relevant provisions of the Constitution of the People's Republic of China,Trade Union Law of the People's Republic of China and Labor Law of the People's Republic of China. However, this declaration sidesteps the government's obligation to modify its domestic legal order to conform with and implement its obligations under the Covenant.The right to join a trade union of one's choice is a necessary precondition for the ability of workers to seek remedies where the government may have violated their rights as guaranteed by the Covenant.The PRC Report maintains that Chinese domestic legislation protects the right to freedom of association, and characterizes the All-China Federation of Trade Unions (ACFTU) as a voluntary mass organization. However, the fact that the ACFTU is China's only officially recognized union undercuts the right to join a trade union of one's choice.


ICESCR Article 9:
The Right to Social Security

For the migrant workers who comprise a majority of those employed in factories and mines, the lack of a hukou means that their access to social security, medical, health and unemployment benefits is severely limited or non-existent. Despite some reforms to the system announced in the 1990s, migrants are still effectively excluded from access to social security. As a result, in an industrial environment that includes an overwhelming number of workplace accidents annually, migrant workers often have to forgo medical treatment for illness or workplace injuries in the face of prohibitive cost.


ICESCR Article 11:
The Right to an Adequate Standard of Living

While the PRC government's report recognizes a poverty gap between the rural and urban areas, it emphasizes that standards of living have overall improved, and asserts that no discrimination exists. The report details the size of housing and the urban infrastructure and notes the inadequacy of housing for rural inhabitants, but provides no account of the depth of the divide between the rural and urban areas. It also does not describe what concrete measures, monitoring and evaluation mechanisms the government will take to counter the development strategies and preferential policies that created this social and economic gap.

The right to housing in particular continues to be violated in both urban and rural areas by arbitrary evictions, land grabbing, corruption, major infrastructure development and urban renewal. Migrants who face limited housing options under the hukou system are often consigned by their factories to extremely poor housing that is overcrowded, unsafe, unhygienic and lacking in basic heating and electric facilities. Migrants who are not housed through their factories often resort to equally inadequate housing on the outskirts of cities.

In the rural areas, development schemes such as the Three Gorges Project lead to the forcible relocation of upwards of a million people without adequate consultation or compensation. Similarly, the demographics and habitat of many of China's ethnic minorities have been damaged irreversibly by development policies and decades of migration of Han settlers into Xinjiang, Inner Mongolia,Tibet and other autonomous regions.


ICESCR Article 12:
The Right to the Highest Attainable Standard of Physical and Mental Health

Despite China's rapid economic growth and an increase in total healthcare expenditure from 1994 to 2004, the percentage of GDP allocated to public health has shrunk.The inadequate and reduced financing of health services, particularly for poor regions, has resulted in a growing health gap between poor rural and wealthier urban areas. Migrants remain excluded from healthcare in urban areas due to the hukou system, but the situation in their home villages is often no better, as the central government's withdrawal of support has led to a drastic reduction in the healthcare system that formerly delivered basic healthcare to the majority of rural residents.While 90 percent of villages were covered in the 1970s, by 1989, only 4.8 percent were covered. Unable to afford medical attention, many villagers fall into a vicious cycle of illness breeding poverty and vice versa. Increased privatization and high user fees, inadequate preventative care programs and the resulting spread of infectious diseases including HIV/AIDS have all contributed to a growing health crisis in China's rural areas.All available information suggests that the PRC government falls far short of providing the minimum core content of its obligations under Article 12.


ICESCR Articles 13 and 14:
The Right to Education

The disparity in the implementation of rights in the urban and rural regions is particularly telling in the area of the right to education.This has come about in large part because since the 1980s the central government has shifted the burden of providing education to the local level without a corresponding transfer of funding, and in 1994 announced that township governments would be responsible for implementing compulsory education. Local governments make up for the funding shortfall through extra-budgetary resources derived from school fees, tuition fees, book fees and other direct and indirect fees, resulting in widely varying levels of education quality and access across China's provinces. Despite abolition of many fees in 2000, 80 percent of all education funds go to urban schools. Statistics also indicate that because of the one-child policy and traditional preference for boys, an out-of-plan girl may not be registered in the hukou system, and therefore will be excluded from public education.

The hukou system has created similarly serious problems for migrants in educating their children. Migrant children cannot afford to attend urban public schools, and private schools set up by migrants are unregistered, lack adequate resources, and do not qualify students to sit for exams for admission to the public school system.As a result, migrants are denied equal access to education enjoyed by their settled urban counterparts.


ICESCR Article 15:
The Right to Cultural Life and the Benefits of Science

The frequent detention of journalists, Internet activists, intellectuals and grassroots activists demonstrates that Chinese citizens continue to face significant restrictions in their access to uncensored information and in their ability to express any opinions critical of the government in the media or on the Internet.The PRC government also fails to adequately protect and respect the right of minority groups to practice their religions and engage in cultural activity. In Xinjiang and Tibet in particular, the PRC government has increasingly invoked national security and the threat of separatism to curtail cultural and religious practices that extend to education and publication. This is in addition to government-sponsored migration policies that bring an influx of Han settlers, permanently altering the traditional lifestyles of minority populations.


HRIC Recommendations

HRIC's report concludes with two sets of recommendations, one directed at the Committee and the second at the government of the PRC. HRIC suggests methodological improvements to the reporting process, including greater identification of public consultative processes, the provision of disaggregated data and clarification of legal definitions of discrimination in Chinese law.The recommendations also emphasize the need to develop a domestic legal order that respects and protects economic, social and cultural rights by incorporating the Covenant into domestic law, developing administrative remedies, including a complaint process, and creating effective monitoring and transparent reporting processes to measure implementation.

Furthermore, these recommendations focus thematically on issues regarding vulnerable populations, including:
  • Workers' rights to favorable work conditions;

  • Citizen's rights to form independent labor organizations;

  • The dismantling of the discriminatory hukou system to facilitate the protection of migrants;

  • The right to housing, including the prohibition of forced evictions and relocations;

  • Health standards to guarantee an equitable distribution of services and resources to disadvantaged groups;

  • Progressive realization of education for vulnerable segments of the population, including girls, migrant children, rural children and low-income urban children; and

  • Protection of the cultural identity of ethnic minorities by allowing the free exercise of religion, language, and culture.
The recommendations, which track the articles of the Covenant, were submitted as a constructive contribution to the full review of the PRC report.They also serve as a contribution to developing concrete steps to monitor and inform legislative and other measures, and provide benchmarks for assessing ongoing compliance.


Follow-up

After its 34th session, following review of the PRC report, the Committee issued a 17-page report of concluding observations and recommendations.While expressing appreciation for positive aspects of the PRC's report, the Committee also noted 28 principal subjects of concern, including the lack of comparative disaggregated data, the economic and social disadvantages imposed on vulnerable populations by the government's preferential development policies and the restrictive hukou registration system, and the restrictions placed on access to information with regard to academic research, foreign and domestic publications and the Internet. Significantly, while recognizing the challenges presented by China's geographic size, large population and developing country limitations, the Committee stated, "There are no significant factors and difficulties impeding [China's] capacity to effectively implement the Covenant."

The UN Committee's suggestions and recommendations include:
  • The adoption of a National Human Rights Plan of Action;

  • Allocation of adequate and increased resources;

  • Legislative reforms, including amendments to the Trade Union Act to allow workers to form independent trade unions outside the structure of the official All-China Federation of Trade Unions;

  • The provision of detailed information on public consultation in the preparation of the country report; and

  • The removal of restrictions on freedom of information and expression.
The Committee's constructive recommendations provide the PRC government with an opportunity to demonstrate its commitment to its international obligations, underscoring the point that its reputation in the international community will be measured not only by its economic development and political influence, but also by the welfare of its most vulnerable groups.



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ENDNOTES

[1] The ICESCR was adopted in the General Assembly resolution 2200A in its 21st session on December 16, 1966 and entered into force on January 3, 1976.There are currently 66 signatories, with 151 parties ratified or acceded to the Covenant.

[2] See generally, International Covenant on Economic, Social and Cultural Rights. See also, Committee on Economic, Social and Cultural Rights, General Comments 3:The Nature of States parties obligations (Art. 2, para. 1,) E/1991/23, December 12, 1990.

[3] State Parties are to submit their initial report within two years of signing onto the Covenant and every five years subsequently. ICESCR, Articles 16, 17. International Covenant on Economic, Social and Cultural Rights, adopted December 16, 1966, entry into force January 3, 1976, http://www.ohchr.org/english/law/pdf/cescr.pdf.

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