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Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - China (Ratification: 2006)

Other comments on C111

Observation
  1. 2022
  2. 2021
Direct Request
  1. 2022
  2. 2021
  3. 2020
  4. 2016
  5. 2012
  6. 2009

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With reference to its previous comments, the Committee recalls the observations by the International Trade Union Confederation (ITUC) received on 16 and 28 September 2020 and notes that additional observations by the ITUC were received on 6 September 2021 reiterating and supplementing its previous observations. The Committee also notes the Government’s reply received on 19 November 2020 and the additional information communicated by the Government on 30 August 2021 in reply to the Committee’s direct request.
Article 1(1)(a) and (3) of the Convention. Definition and prohibition of discrimination in employment and occupation. Prohibited grounds of discrimination. Legislation. The Committee recalls that the English translation of section 12 of the Labour Law of 1994 provides that “[w]ith regard to employment, the workers shall not be discriminated in aspects of nationality, race, sex and religious beliefs” and the English translation of section 3 of the Employment Promotion Law of 2007 provides that “[i]n seeking employment, the workers shall not be subject to discrimination because of their ethnic backgrounds, races, gender, religious beliefs, etc.” The Committee notes that, in its report, the Government refers to: (1) the revised “Regulation on Religious Affairs”, which took effect on 1 February 2018 and provides that “no organization or individual … may discriminate against citizens who believe in any religion … or citizens who do not believe in any religion …”; and (2) the Labour Law and the Employment Promotion Law that contain provisions on the prohibition of employment discrimination and the promotion of fair employment. The Committee notes nonetheless that these laws and regulations do not provide for a definition of discrimination, whether direct or indirect, and both do not seem to cover all aspects of “employment and occupation” as defined in Article 1(3) of the Convention. The Committee therefore asks the Government to take steps to: (i) include a clear and comprehensive definition of discrimination (both direct and indirect) in its labour legislation; and (ii) clarify whether the provisions of the Labour Law of 1994 also cover access to employment and vocational training. With respect to the anti-discrimination legal provisions in force, the Committee also asks the Government to confirm that: (i) the Labour Law of 1994 covers only the grounds of nationality, race, sex and religious beliefs; and (ii) the Employment Promotion Law of 2007 provides for an open list of prohibited discrimination grounds and therefore also covers discrimination based on colour, national extraction, social origin and political opinion (even if such grounds are not explicitly mentioned). It further asks the Government to indicate whether any interpretation concerning the wording “etc.” in the Employment Promotion Law of 2007 has been handed down by the judicial authorities and, if so, to provide a copy of the given decisions.
Articles 1(1)(a), 2 and 3. Allegations of discrimination based on race, religion, national extraction and social origin affecting ethnic and religious minorities in Xinjiang. The Committee refers to its comments on the application of the Employment Policy Convention, 1964 (No. 122). In the interest of coherence and transparency in its comments, considering that both the allegations and the information in reply raise a close connection between employment policy, the free choice of employment of ethnic and religious minorities and their protection against discrimination in employment and occupation, the Committee presents the same synopsis of the information available in both comments.
In its observations of 2020 and 2021, the ITUC alleges that the Government of China has been engaging in a widespread and systematic programme involving the extensive use of forced labour of the Uyghur and other Turkic and/or Muslim minorities for agriculture and industrial activities throughout the Xinjiang Uyghur Autonomous Region (Xinjiang), in violation of the right to freely chosen employment set out in Article 1(2) of Convention No. 122. The ITUC maintains that some 13 million members of the ethnic and religious minorities in Xinjiang are targeted on the basis of their ethnicity and religion with a goal of social control and assimilation of their culture and identity. According to the ITUC, the Government refers to the programme in a context of “poverty alleviation”, “vocational training”, “re-education through labour” and “de-extremification”.
The ITUC submits that a key feature of the programme is the use of forced or compulsory labour in or around internment or “re-education” camps housing some 1.8 million Uyghur and other Turkic and/or Muslim peoples in the region, as well as in or around prisons and workplaces across Xinjiang and other parts of the country.
The ITUC indicates that, beginning in 2017, the Government has expanded its internment programme significantly, with some 39 internment camps having almost tripled in size. The ITUC submits that, in 2018, Government officials began referring to the camps as “vocational education and training centers” and that in March 2019, the Governor of the Xinjiang Uyghur Autonomous Region described them as “boarding schools that provide job skills to trainees who are voluntarily admitted and allowed to leave the camps”. The ITUC indicates that life in “re-education centers” or camps is characterized by extraordinary hardship, lack of freedom of movement, physical and psychological torture, compulsory vocational training and actual forced labour.
The ITUC also refers to “centralized training centers” that are not called “re-education camps” but have similar security features (e.g. high fences, security watchtowers and barbed wire) and provide similar education programmes (legal regulations, Mandarin language courses, work discipline and military drills). The ITUC adds that the “re-education camps” are central to an indoctrination programme focused on separating and “cleansing” ethnic and religious minorities from their culture, beliefs, and religion. Reasons for internment may include persons having travelled abroad, applied for a passport, communicated with people abroad or prayed regularly.
The ITUC also alleges prison labour, mainly in cotton harvesting and the manufacture of textiles, apparel and footwear. It refers to research according to which, starting in 2017, the prison population of Uyghurs and other muslim minorities increased dramatically, accounting for 21 per cent of all arrests in China in 2017. Charges typically included “terrorism”, “separatism” and “religious extremism”.
Finally, the ITUC alleges that at least 80,000 Uyghurs and other ethnic minority workers were transferred from Xinjiang to factories in Eastern and Central China as part of a “labour transfer” scheme under the name “Xinjiang Aid”. This scheme would allow companies to: (1) open a satellite factory in Xinjiang; or (2) hire Uyghur workers for their factories located outside this region. The ITUC alleges that the workers who are forced to leave the Uyghur Region are given no choice and, if they refuse, are threatened with detention or the detention of their family. Outside Xinjiang, these workers live and work in segregation, are required to attend Mandarin classes and are prevented from practicing their culture or religion. According to the ITUC, state security officials ensure continuous physical and virtual surveillance. Workers lack freedom of movement, remaining confined to dormitories and are required to use supervised transport to and from the factory. They are subject to impossible production expectations and long working hours. The ITUC adds that, where wages are paid, they are often subject to deductions that reduce the salary to almost nothing. ITUC adds that, without these coercively arranged transfers, Uyghurs would not find jobs outside Xinjiang, as their physical appearance would trigger police investigations.
According to the ITUC’s allegations, to facilitate the implementation of these schemes, the Government offers incentives and tax exemptions to enterprises that train and employ detainees; subsidies are granted to encourage Chinese-owned companies to invest in and build factories near or within the internment camps; and compensation is provided to companies that facilitate the transfer and employment of Uyghur workers outside the Uyghur Region.
In its 2021 observations, the ITUC supplements these observations with information, including testimonies from the Xinjiang Victims Database, a publicly accessible database which as of 3 September 2021 had allegedly recorded the experience of some 35,236 ethnic minority members forcibly interned by the Government since 2017.
The Government states that the right to employment is an important part of the right to subsistence and development, which constitute basic human rights. The Government indicates that, under its leadership, Xinjiang has made great progress in safeguarding human rights and development. It adds that people of all ethnic groups voluntarily participate in employment of their own choice, and that the ITUC has ignored the progress made in economic development, poverty alleviation, improvement of people's livelihood and efforts to achieve decent work in Xinjiang.
With respect to the ITUC observations in relation to the use of forced labour, the Government emphasizes that these allegations are untrue and politically motivated.
The Government indicates that, pursuant to the Constitution, the State creates conditions for employment through various channels. The Employment Promotion Law (2007) stipulates that workers have the right to equal employment and to choose a job on their own initiative, without discrimination. Under the Vocational Education Law of 1996, citizens are entitled to receive vocational education and the State takes measures to develop vocational education in ethnic minority areas as well as remote and poor areas.
The Government indicates that residents of deeply poverty-stricken areas in southern Xinjiang have suffered insufficient employability, low employment rates, very limited incomes and long-term poverty. It states that eliminating poverty in Xinjiang has been a critical part of the national unified strategic plan to eradicate poverty by the end of 2020. The Government adds that it has eliminated absolute poverty, including in southern Xinjiang, thanks to government programmes such as the Programme for Revitalizing Border Areas and Enriching the People during the 13th Five-Year Plan Period (GUOBANFA No. 50/2017) and the Three-Year Plan for Employment and Poverty Alleviation in Poverty-stricken Areas in the four prefectures of Southern Xinjiang (2018-2020). The Programme for Revitalizing Border Areas and Enriching the People had set development targets for nine provinces and autonomous regions, including Xinjiang, such as the lifting out of poverty of all rural poor and the continuous expansion of the scale of employment combining individual self-employment, market-regulated employment, government promotion of employment and entrepreneurship, and vocational training to increase the employability of workers. The Three-Year Plan laid the foundation for the Xinjiang government to provide dynamic, categorized and targeted assistance to people with employment difficulties and families where no one is employed, and create structured conditions for people to find jobs locally, to seek work in urban areas, or to start their own businesses.
The Government reports that the task of relocating the poor for the purpose of poverty relief has been completed, and that the production and living conditions of poor people have been greatly improved: the poverty incidence rate in the four poverty-stricken prefectures of Xinjiang dropped from 29.1 per cent in 2014 to 0.21 per cent in 2019. Between 2014 and 2020, the total employed population in Xinjiang grew from 11.35 million to 13.56 million, representing an increase by 19.4 per cent. In the same period, an average of 2.8 million urban job opportunities were provided annually to the “surplus rural workforce”.
The Government is firm in its view that it fully respects the employment wishes and training needs of Xinjiang workers, including ethnic minorities. The Xinjiang Government regularly conducts surveys of labourers' willingness to find employment and keep abreast of their needs in terms of employment location, job positions, remuneration, working conditions, living environment, development prospects and training needs. These surveys demonstrate that more urban and rural “surplus” workers hope to go to cities in northern Xinjiang or other more developed provinces and cities in other parts of the country, which offer higher wages, better working conditions and a better living environment. Ethnic minorities count on the government to provide more employment information and other public employment services to their members. The fact that ethnic minority workers go out to work is entirely voluntary, autonomous and free. According to the Government, the Three-Year Plan for Southern Xinjiang explicitly refers to the “willingness for employment” and states that the wishes of individuals “who are unwilling to work due to health and other reasons” shall be fully respected, and that they will never be forced to register for training.
The Government stresses that language training for ethnic minority workers in Xinjiang is necessary to increase their language ability, and enhance their employability, and does not deprive them of the right to use their own language.
The Government also replies to the ITUC allegations that the Uyghur and other ethnic minorities in Xinjiang are not paid the applicable local minimum wage, indicating that the Labour Law of the People’s Republic of China stipulates that the minimum wage system applies across the country, although minimum wage standards may vary across administrative regions. As of 1 April 2021, the minimum wage in Xinjiang is divided into four grades: 1,900 yuan, 1,700 yuan, 1.620 yuan and 1,540 yuan. The Government considers reports that the wages of some migrant workers in Xinjiang are as low as US$114 (approximately 729 yuan) per month to be groundless, stating that the overwhelming majority of this information is taken from individual interviews and lacks clear sources of data or statistical information. In addition, the Government points out that the reports do not fully clarify whether the workers concerned are working less than the statutory working hours, in which case they would be paid less. The Government states that by going out to work, the actual income of many people is much higher than the minimum wage of Xinjiang.
The Government also reports that the local government of Xinjiang has put in place labour inspection systems for protecting the rights and interests of workers and addressing their reports and complaints concerning wage arrears, failure to sign labour contracts and other infringements. The Government indicates that it will take steps to further strengthen the supervision and inspection of employer compliance with minimum wage provisions, call on employers to respect the minimum wage standards and address violations.
The Government provides detailed information on its laws, regulations and policies regarding freedom of religion; equality among the 56 ethnic groups in China and for consolidating and developing unity between and within these groups.
The Government reports that China adopts policies securing freedom of religious belief; manages religious affairs in accordance with the law; adheres to the principle of independence from foreign countries and self-management; and actively guides religions to adapt to the socialist society so that religious believers may love their country and compatriots, safeguard national unity and ethnic solidarity, be subordinate to and serve the overall interests of the nation and the Chinese people. The Law of the People’s Republic of China on the Administration of Activities of Overseas Non-Governmental Organizations within China prohibits overseas NGOs from illegally engaging in or sponsoring religious activities. China’s Criminal Law, National Security Law, and Counter-Terrorism Law provide for the protection of citizens’ freedom of religious belief. The Counter-Terrorism Law of the People’s Republic of China states that China opposes all extremism that seeks to instigate hatred, incite discrimination and advocate violence by distorting religious doctrines or through other means, and forbids any discriminatory behaviour on the grounds of region, ethnicity and religion. The Regulations on Religious Affairs prohibit any organization or individual from advocating, supporting or sponsoring religious extremism, or using religion to undermine ethnic unity, divide the country, or engage in terrorist activities. According to the Government, China takes measures against the propagation and spread of religious extremism, and at the same time, carefully avoids linking violent terrorism and religious extremism with any particular ethnic group or religion.
The Committee takes due note of all the allegations and information communicated by both the ITUC and the Government on the application of Convention Nos 111 and 122, which appear interrelated, as well as stated government policy as it transpires from various regulatory and policy documents.
The Committee takes note of the Government’s explanation of its various regulations and policies, including on the eradication of poverty without discrimination. However, the Committee expresses concern in respect of the methods applied, the impact of their stated objectives and their (direct or indirect) discriminatory effect on the employment opportunities and treatment of ethnic and religious minorities in China.
The Committee recalls that Convention No. 111 requires the formulation and the adoption of a national equality policy, with a view to eliminating any discrimination (Article 2) and defines discrimination as “any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation” (Article 1(1)(a)). Under the Convention, the term “race” includes any discrimination against linguistic communities or minority groups whose identity is based on religious or cultural characteristics or national or ethnic origin (see General Survey on the fundamental Conventions, 2012, paragraph 762). It further recalls that racial harassment, which is a serious form of discrimination, occurs where a person is subject to physical, verbal or non-verbal conduct or other conduct based on race which undermines their dignity or which creates an intimidating, hostile or humiliating working environment for the recipient (see the general observation of 2018 on the application of the Convention).
The Committee recalls that freedom from discrimination is a fundamental human right and is essential for workers in order to choose their employment freely, to develop their full potential and to reap economic rewards on the basis of merit. As such, the promotion of equality of opportunity and treatment in employment and occupation should be mainstreamed in relevant national policies, such as education and training policies, employment policies, poverty reduction strategies, rural or local development programmes, women’s economic empowerment programmes, and climate mitigation and adaptation strategies (see the 2018 general observation).
The Committee also recalls that the Convention aims to provide protection against religious discrimination in employment and occupation, which often arises as a result of a lack of religious freedom or intolerance towards persons of a particular faith, a different faith, or towards those who profess no religion. The expression and manifestation of religion is also protected. Appropriate measures need to be adopted to eliminate all forms of intolerance (see 2012 General Survey, paragraph 798).
The Committee observes that discrimination on the basis of actual or perceived religion, combined with exclusions and distinctions based on other grounds such as race, ethnicity or national extraction continues to acquire greater significance, especially in the context of increasing global movements of people looking for better opportunities, and concerns about countering and preventing terrorism. Measures to promote tolerance and coexistence among religious, ethnic and national minorities and awareness-raising on the existing legislation prohibiting discrimination are therefore more than ever essential to achieving the objectives of the Convention (2012 General Survey, paragraph 801).
The Committee recalls that, in its previous comment, it referred to the concluding observations by the United Nations Committee on the Elimination of Racial Discrimination (CERD) regarding the situation in the Xinjiang Uyghur Autonomous Region. It notes that the CERD was alarmed inter alia by: (1) “numerous reports of the detention of large numbers of ethnic Uighurs and other Muslim minorities, held incommunicado and often for long periods, without being charged or tried, under the pretext of countering religious extremism”; (2) “reports of mass surveillance disproportionately targeting ethnic Uighurs”; and (3) “reports that all residents of the Xinjiang Uighur Autonomous Region are required to hand over their travel documents to police and apply for permission to leave the country, and that permission may not come for years”. The CERD recommended that action be taken in this regard, in particular halting “the practice of detaining individuals who have not been lawfully charged, tried and convicted for a criminal offence in any extra-legal detention facility” and immediately releasing “individuals currently detained under these circumstances, and allow those wrongfully held to seek redress”; undertaking “prompt, thorough and impartial investigations into all allegations of racial, ethnic and ethno-religious profiling” and eliminating “travel restrictions that disproportionately affect members of ethnic minorities”. The Committee further notes the concern expressed by the CERD regarding “reports that ethnic Uighurs … often face discrimination in job advertisements and recruitment processes” (CERD/C/CHN/CO/14-17, 19 September 2018, paragraphs 40, 42 and 47).
In addition, the Committee refers to its comments on the application of Convention No. 122 for the concern expressed by UN human rights experts mandated by the Human Rights Council about the forceful relocation of minority workers, especially Uyghur, across the country and the vocational training policy with the stated objective of combatting terrorism and religious extremism.
The Committee recalls that Article 3 of Convention No. 111 establishes a number of specific obligations with respect to the design of a national policy to promote equality of opportunity and treatment and eliminate discrimination in respect of employment and occupation. In particular, it requires parties to the Convention to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with such policy; to pursue the policy under the direct control of a national authority; and to ensure observance of the policy in the activities of vocational guidance, vocational training and placement services under the direction of a national authority.
The Committee notes that in its white paper on vocational education and training in Xinjiang (2019), the government describes Xinjiang, which is home to the Uyghur people and other muslim minorities, as a “key battlefield in the fight against terrorism and extremism in China”. In accordance with the law, the government has established “a group of vocational centers” to offer systematic education and training in response to “a set of urgent needs”: to curb frequent terrorist incidents; to eradicate the breeding ground for religious extremism; to help trainees acquire better education and vocational skills, find employment, and increase their incomes; and, most of all, to safeguard social stability and long-term peace in Xinjiang. Article 33 of the Decision of 10 October 2018 to revise the Xinjiang Uyghur Autonomous Region regulation on de-radicalization (the “XUAR decision”) introduced a new provision defining the responsibility of the vocational education and training centres and other education and transformation bodies in de-radicalization efforts as follows: to carry out education and training efforts on the national spoken and written language, laws and regulations, and occupational skills; to organize and carry out de-radicalization ideological education, psychological rehabilitation, and behavioural corrections; and to promote ideological conversion of those receiving education and training, returning them to society and to their families.
The Decision read jointly with the white paper provide the basis to authorize the administrative detention for the purpose of ideological conversion, including of “people who participated in terrorist or extremist activities that posed a real danger but did not cause actual harm, whose subjective culpability was not deep, who acknowledged their offences and were contrite about their past actions and thus do not need to be sentenced to or can be exempted from punishment, and who have demonstrated the willingness to receive training” (White Paper on vocational education and training in Xinjiang). The white paper considers that education and training is not a measure to limit or circumscribe the freedom of the person but is rather an important measure to help trainees to break free from ideas of terrorism and religious extremism.
The Committee notes that the XUAR decision also lays down de-radicalization responsibilities for enterprises (article 46) and trade unions (article 34). Enterprises failing to perform their de-radicalization duties are subject to “criticism and education” by the unit they are located at or by their higher-ranking competent department and ordered to reform (article 47).
The Committee shares the concerns expressed by the Special Rapporteurs to the UN Human Rights Council (see commentary on the Counter-Terrorism Law of the People’s Republic of China (2015) and its Regional Implementing Measures; and the Xinjiang Uyghur Autonomous Region Implementing Measures of the Counter-Terrorism Law (2016)) about terrorist profiling practices based on a person’s ethnicity, national origin or religion in as much as they generate a climate of intolerance, which is conducive to discrimination in employment and occupation and forced labour practices such as those alleged in the observations of the ITUC.
In this regard, the Committee recalls that under Article 4 of the Convention, any “measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice”. However, the mere expression of religious, philosophical or political beliefs is not a sufficient basis for the application of the exception. Persons engaging in activities expressing or demonstrating opposition to established political principles by non-violent means are not excluded from the protection of the Convention by virtue of Article 4.
Having duly considered the information provided by the Government in response to these serious allegations, the Committee expresses its deep concern in respect of the policy directions expressed in numerous national and regional policy and regulatory documents and requests therefore the Government to:
(i) review its national and regional policies with a view to eliminating all distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity and treatment in employment and occupation;
(ii) repeal provisions in the XUAR decision that impose de-radicalization duties on enterprises and trade unions and prevent enterprises and trade unions from playing their respective roles in promoting equality of opportunity and treatment in employment and occupation without discrimination based on race, national extraction, religion or political opinion;
(iii) revise national and regional policies with a view to ensuring that the activities of vocational guidance, vocational training and placement service serve the purpose of assisting ethnic and religious minorities in the development and use of their capabilities for work in their own best interests and in accordance with their own aspirations, account being taken of the needs of society;
(iv) amend national and regional regulatory provisions with a view to re-orienting the mandate of vocational training and education centers from political re-education based on administrative detention towards the purpose set out in (iii);
(v) provide information on the measures taken to ensure observance of the policy to promote equality of opportunity and treatment in vocational training activities carried out in Xinjiang’s vocational training and education centres; and
(vi) provide information on the measures taken to ensure observance of the policy to promote equality of opportunity and treatment for the Uyghurs and other ethnic minority groups when seeking to access employment outside the Xianjing Autonomous Province.
Articles 2 and 3. Equality of opportunity and treatment of ethnic and religious minorities, including in the civil service. Further to its request, the Committee notes the information provided by the Government regarding: (1) increased efforts on training programmes for skilled personnel in ethnic areas (more than 30 advanced training programmes in ethnical areas such as Inner Mongolia, Guangxi, Yunnan, Qinghai, Tibet, Guizhou, Ningxia, and Xinjiang), with a number of trained personnel reaching 10,000 people per year; (2) special training programmes for skilled personnel in Xinjiang and Tibet (selection of 200 ethnic talents selected from Xinjiang and 120 from Tibet); (3) the effective recruitment of a total of 25,000 ethnic civil servants nationwide in 2016 (13.3 per cent of the newly recruited civil servants) and 23,000 in 2017 (11.75 per cent of the newly recruited civil servants); and (4) the continuation of the workforce capacity building in ethnic areas, through intensified efforts to support the training targeted at civil servants in ethnic areas, thematic training sessions and on-site training workshops (14 sessions, with more than 870 civil servants engaged, since 2016) and active engagement in bilingual programmes. Noting these developments, the Committee requests the Government to continue to provide information on the measures taken, and their results, to promote equality of opportunity and treatment for ethnic and religious minorities, indicating if, and how, the social partners and the groups concerned are consulted when designing and implementing such measures. The Committee also requests the Government to provide information on the current employment situation of various ethnic and religious minorities inside and outside the autonomous regions, including employment data disaggregated by sex and ethnicity in the civil service.
The Committee is raising other matters in a request addressed directly to the Government.
[The Government is asked to supply full particulars to the Conference at its 110th Session and to reply in full to the present comments in 2022.]
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