<<previous  |  index  |  next>>

IX. Freedom of Religion and China’s Responsibility under International Law

China’s stance towards freedom of religion remains equivocal. The political ideology of the CCP has traditionally been hostile to religion, but its policy since the late 1970s has been to tolerate religious belief and expression among non-Party members so long as it does not threaten the CCP’s monopoly of authority or the functions of the state.

This ambivalence is expressed in the constitution, which protects “freedom to believe in, or not believe in, any religion” and “normal” (zhengchang 正常) religious activities, but which also prohibits religious activities that impair public order, health, or education and proscribes “foreign domination” of religious bodies and religious affairs.199 The freedom to express one’s religion through activities is not, however, guaranteed by the constitution. This has been noted by international bodies such as the U.N. Working Group on Arbitrary Detention, which in its 2004 report reiterated its recommendation that the constitution be revised to include such a guarantee.

The international legal obligations that China has assumed towards freedom of religion are unequivocal, and China’s policies and practices are in direct violation of these norms. The Universal Declaration of Human Rights (UDHR), an international instrument all U.N. member states accept, and which has attained the status of customary international law, guarantees persons the right to manifest their religion “either alone or in community with others and in public or private,”200 the right to be free from discrimination based upon religion,201 and the right to be free from unnecessary and arbitrary government regulation in exercising religious beliefs.202 

China is a signatory to the International Covenant for Civil and Political Rights (ICCPR) and although it has not yet ratified the Covenant, it is already bound not to act in such a way as to defeat the objects and purposes of the Covenant.203 The ICCPR protects the right of the individual to “have … a religion or belief of his choice, and [the] freedom, either individually or in community with others and in public or in private to manifest” it.204 It not only commits signatories to ensuring freedom of religion, but also commits them not to practice discrimination on the basis of religion.205 This obligation is violated by China's practice of subjecting Uighur Muslims, much as it does Tibetan Buddhists, to regulation of their religion in far more severe terms than that those imposed on other faiths or ethnic groups within China. 

The right to educate children “in conformity with their own convictions”206 is also violated by the prohibition on Uighurs teaching their religion to their own children. The Covenant does allow exceptions where it is “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others,”207 but the restrictions China imposes on Uighur religious practice far exceed anything that could reasonably be justified under the treaty.

The ICCPR additionally guarantees that the individual “shall not be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”208 By mandating that imams include state propaganda in their messages, the Chinese government coerces religious leaders and worshipers into adopting religious beliefs that are no longer of their own choosing.209 When the Chinese government trains and selects Uighur imams, it sets itself up as arbiter of “the correctness of what are essentially the theological decisions of religious groups,” and effectively prevents groups from organizing and operating according to their own religious principles.210 

Finally, the ICCPR recognizes the right of religious minorities “in community with the other members of their group to … profess and practice their own religion.”211 Significantly, this article of the ICCPR does not include any provision for limitation or exception. By retaining the right to select, certify, and review Uighur imams and to mandate their religious messages, China, rather than respecting the rights of religious minorities, actually subverts Uighur religion, to the extent that it appears to be attempting to refashion it to a state version of Islam.212

The Convention on the Rights of the Child (CRC), to which China is a party, protects the right of a child to freedom of religion, the right of parents to educate their children, and the right of minorities to educate their children when religious belief and practice is an integral part of their culture. Art. 14(1) provides that “States Parties shall respect the right of the child to freedom of thought, conscience and religion. The right is not derogable, but is subject to the same limits as above.213 Article 14(2) provides that “States Parties shall respect the rights and duties of the parents…to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.”214  Article 30 states that: “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origins exist, a child…shall not be denied the right…to enjoy his/her own culture, to profess and practice his or her own religion, or to use his or her own language.215

The Convention against Discrimination in Education also provides for “the liberty of parents…to ensure…” the religious and moral education of the children in conformity with their own convictions…216

China has assented to other international instruments that protect freedom of religion and belief. In 1991, China voted in support of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,217 which reiterates the rights to freedom of religion and non-discrimination in terms more or less identical to those of the UDHR and the ICCPR. The Declaration in Article 6 elaborates on the right to religious freedom, noting that it includes the following rights:

    a) to worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;

    b) to establish and maintain appropriate charitable or humanitarian institutions;

    c) to make, acquire, and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;

    d) to write, issue and disseminate relevant publications in these areas;

    e) to teach a religion or belief in places suitable for these purposes;

    f) to solicit and receive voluntary financial and other contributions from individuals and institutions;

    g) to train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;

    h) to observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;

    i) to establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.

Each of these components of religious autonomy and freedom is actively denied to Uighurs living in China except where they specifically have obtained authorization from the CPP and the state apparatus. This conflicts with a widely understood notion in international law, whereby a right exists previous to state legislation and not as a privilege to be accorded at the discretion of the state. Thus to meet any standard commitment to religious freedom, the provisions must begin not with the presumption of illegality, but with a presumption that every one of these activities is protected from state interference.

[199] Constitution of the Peoples Republic of China, art. 36.

[200] Universal Declaration of Human Rights, art. 18 (1948).

[201] Ibid, art. 2.

[202] Ibid, art. 29. Article 29 states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

[203] China signed the ICCPR on October 5, 1998, but has yet to ratify it. See Ratification of International Human Rights Treaties – China, University of Minnesota Human Rights Library, available at (retrieved June 9, 2004). While China has not ratified the Covenant, it is still “obliged to refrain from acts which would defeat the object and purpose of the treaty” because it has signed the ICCPR and has not expressed an official intention to not become a party to it. See Vienna Convention on the Law of Treaties, art. 18; Peter Malanczuk, ed., Akehurst’s Modern Introduction to International Law (London: Routledge, 7th ed 1997), p. 135.

[204] Ibid, art. 18(1).

[205] International Covenant on Civil and Political Rights, arts. 2 and 26 (1976).

[206] Ibid, 18(4) (emphasis added).

[207] Ibid, 18(3).

[208] Ibid, 18 (2).

[209] See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Strasbourg, Arlington: N.P. Engel, 1993), p. 315. (“Influencing is, in any event, impermissible when it is performed by way of coercion, threat or some other unallowed means against the will of the person concerned or without at least his implicit approval”).

[210] See “Recommendations for U.S. Policy on China,” U.S. Commission on International Religious Freedom, February 13, 2002, p. 8, [online]

[211] ICCPR, art. 27 (emphasis added).

[212] “It is clear from the report of the Secretary-General on the historical background on art. 27 that the [Human Rights Committee] expressly sought to set down privileged treatment for minorities in order to achieve real equality. This means that members of minorities are provided with more rights than the rest of the population. … In summary, it may be stated that persons belonging to minorities are guaranteed, as against the remainder of the population, a privileged, unrestricted right to common enjoyment of their … religion. As a negative right, art. 27 obligates the States Parties to refrain from interference and to practice tolerance.” Nowak, CCPR Commentary, pp. 500, 502. See also Eric Kolodner, “Religious Rights in China: A Comparison of International Human Rights Law and Chinese Domestic Legislation,” 12 UCLA Pac. Basin L.J. 407, 412-13 (1994) (“Article 27 compels two important conclusions. First, minority religions enjoy a particularly protected status – assuming that art. 27 is more than just a redundant enunciation of the individual religious liberties protected under art. 18 and the principles of nondiscrimination in art. 26. The absence of permissible derogations further suggests this elevated status. … Second, by explicitly proclaiming the right of minorities to have and practice ‘their own religion,’ art. 27 prohibits governments from establishing officially recognized religious organizations while banning all others which conflict with government-sponsored belief systems”).

[213] Convention on the Rights of the Child, art. 14(1).

[214] Ibid, art. 24(2).

[215] Ibid, art. 30.

[216] Convention against Discrimination in Education, art, 5(b).

[217] U.N. GA Resolution 36/55, Nov. 25, 1991. While General Assembly resolutions are not binding, they “may be evidence of customary law because it reflects the views of the states voting for it.” Malanczuk, Akehurst’s Modern Introduction to International Law, p. 54. In this case, the vote was unanimous. Additionally, a resolution entitled Elimination of All Forms of Religious Intolerance passed without a vote on December 17, 1991.

<<previous  |  index  |  next>>April 2005