At issue in this report is the failure to take into account and respect the basic rights of Tibetans effected by the PRCs relocation policies and the absence in practice of due process to protect those rights when relocation decisions affecting their rights are made. Such due process includes transparency, consultation in advance of planned relocations, and the right to challenge proposed relocations before an independent arbiter. When relocations do go ahead, those affected are also entitled to adequate compensation, and the conditions in the new location must be no worse than those enjoyed prior to the relocation, including culturally adequate and with access to essential services and economic opportunities.45
China ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 2001. Article 1 of the treaty prohibits depriving people of their own means of subsistence and Article 11 provides that everyone has a right to an adequate standard of living for himself and his family, including adequate housing, and to the continuous improvement of living conditions. Article 2 prohibits all forms of discrimination based on several grounds including national or social origin, property, or other status. The ICESCR also spells out states obligations to protect peoples livelihood, including the right to work and an adequate standard of living. The overarching obligation in the Treaty to progressive realization of rights means that as governments acquire the resources necessary to improve rights, they are obliged to do so. At a minimum, states must refrain from policies which have a regressive impact on individuals and communities capacity to realize and exercise basic economic and social rights.
In ratifying the ICESCR China voluntarily accepted specific obligations with respect to how it develops and implements policies that will have an impact on the enjoyment of the rights protected by the treaty. One of those obligations is that any resettlement project must include a genuine opportunity for those affected to participate in that decision, and an effective means of challenging the relocation decision. Where a resettlement project takes place against the wishes of the affected population and without consultation, adequate compensation, provision of appropriate alternative housing, or access to legal remedies, such a relocation amounts to a forced eviction and violates the ICESCR.
The United Nations Committee on Economic, Social and Cultural Rights, established to oversee compliance with the treaty, has on a number of occasions provided guidance to states party to the ICERSCR on the human rights issues and due process obligations which arise in relation to forced displacements: General Comment No. 4 and No. 746 and the matter has also been extensively addressed by the UN Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standards of Living.47 The Rapporteur has elaborated a set of human rights guidelines on development-based displacement.48 The guidelines offer several prescriptions, which render more clear the obligations of States in respect of compliance with human rights standards when forcibly removing population due to large scale development projects. They reflect and detail the principles contained in General Comments Nos. 4 and 7 referred to above. Although not yet formally adopted by states, the guidelines recommended by the special rapporteur constitute an important framework for the protection of individuals and communities against human rights violations arising from forced evictions. Amongst other issues, the guidelines:
A second set of international standards of relevance to Tibetans appear in the International Labour Organizations Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989). China has not ratified this Convention, but it is still significant insofar as it establishes basic international guidelines.
The central aim of Convention 169 is to protect indigenous communities from discrimination, while preserving their right to maintain their distinct identity and their place and way of living. The Convention calls upon governments to take steps as necessary to identify the lands of indigenous peoples and to guarantee effective protection, and advocates that authorities establish processes to provide indigenous communities full participation in decisions regarding the use and ownership of land.
Under Convention 169, indigenous peoples can be relocated from the lands they occupy only when necessary and as an exceptional measure. Such a relocation must take place with their free and informed consent or, when their consent cannot be obtained, only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned." Those relocated are to receive full compensation for loss or injury. As soon as the grounds for the relocation cease, indigenous peoples are entitled to return to their traditional lands. When this is not possible, they are to be provided with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development, or compensation, as they choose.50
The UN Human Rights Council has recently adopted the Declaration on the Rights of Indigenous People.51 China was one of the members of the council that voted for the declaration.52 The Declaration provides that states are to provide effective mechanisms for prevention of, and redress for any action that has the effect of dispossessing indigenous peoples of their lands, territories, or resources; any form of forced population transfer that has the effect of violating or undermining any of their rights; and any form of forced assimilation or integration by other ways of life imposed on them by legislative, administrative, or other measures.53 The Declaration also provides that indigenous peoples shall not be forcibly removed from their lands or territories. It states that no relocation shall take place without the free, prior, and informed consent of the indigenous peoples concerned, and only after agreement on just and fair compensation and, where possible, with the option of return.54
45 See general comment No. 4 on the right to adequate housing, adopted by the Committee on Economic, Social and Cultural Rights in 1991, E/1992/23.
46 See The Committee on Economic, Social and Cultural Rights, The Right to Adequate Housing, United Nations doc E/1992/23, 1991 and Forced Evictions, United Nations doc.E/1998/22, Annex IV, 1997.
47 Established by the United Nations Commission on Human Rights Resolution 2000/9 of April 17, 2000. Held by Mr. Miloon Kothari since 2000.
48 United Nations Comprehensive Guidelines on Development-Based Displacement, A/HRC/4/18, Annex 1, February 5, 2007.
49 See Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, February 5, 2007, A/HRC/4/18, para. 23.
50 See Article 16, sections 2 and 4, ILO Convention 169, Concerning Indigenous and Tribal Peoples in Independent Countries (1989).
51 Human Rights Council Resolution 2006/2, adopting the text of the Declaration and recommending the adoption of the Declaration by the General Assembly, June 29, 2006.
52 The Resolution was adopted by a recorded vote of 30 votes to 2, with 12 abstentions.
53 United Nations Declaration on the Rights of Indigenous People, document E/CN.4/Sub.2/1993/29/, Annex I, art. 8, http://www.cwis.org/drft9329.html, August 23, 1993.
54 Ibid, art. 10.