Global Human Rights Defence

The consistent disintegration of Tibetan culture: A human rights law perspective
Man Wearing Orange and White Long-sleeved Shirt. Source: Sarbajit Sen/Pexels, 2018.

Department: Tibet Team
Author: Alexandros Anthis

INTRODUCTION

The suppression of Tibetan culture has persisted for decades. Cultural genocide has not been codified in international law, and its application to Tibet is controversial as it would have complex implications for all involved parties. Thus, the review of relevant incidents from a human rights law perspective could prove a more effective exercise.

An overview of facts

Cultural oppression can be traced back to the country’s cultural revolution in the 1960s (Southerland, 2016). However, the repression of Tibetan culture intensified at the end of 2021, when Tibetan religious symbols were desecrated as part of a wider crackdown by Chinese authorities. The campaign took a heavy toll on Tibetan cultural buildings and artefacts; it left obliterated monasteries, demolished Buddha statues, and destroyed Tibetan prayer wheels. Indicatively, in the Draggo County of Tibet’s Kham region, Chinese officials dismantled two giant Buddha statues along with 45 prayer wheels (Lhamo, 2022). Prior to the demolitions, sources assert that state authorities destroyed the Draggo Monastery’s Gaden Namgyal Monastic school, which was later abandoned as the damage rendered its facilities utterly unusable (Dolma, 2021).

In the case of the statues, the authorities’ justification concerned the noncompliance with local building regulations regarding the height of the statues (Staff Reporter, 2021). Similarly, the destruction of the Monastic school was premised on a violation of zoning law (Ngodup, 2021). On both occasions, Tibetans proclaimed that they possessed the necessary permits that had been used to initially erect the statues and the building. Moreover, as sources indicate, the grounds provided for the demolitions by the Chinese authorities f      did not contain any reference to a law violation with respect to the prayer wheels. 

These events triggered protests by Tibetan monks and civilians. Nonetheless, their reactions were contained by Chinese forces resulting in numerous arrests. According to reports, many arrests were made on suspicion of circulating information about the demolitions to external outlets. The same sources indicate that the detainees were victims of torture and inhuman and degrading treatment during confinement (Lhamo, 2022).

This article will focus on the violation of Tibetan’s cultural and religious rights. The primary reason for this topical choice is the recurrence of the phenomenon throughout the region’s history (Klein, 2011). Moreover, the article is founded on the perception that the orchestrated cultural disintegration of a targeted group can be a preliminary stage in a larger objective (Lemkin, 1944). The following analysis will be limited to human rights protection norms within the legal order of the People’s Republic of China as well as international law.

Domestic law

A. The Constitution of the PRC

Article 36 of the Constitution of the People’s Republic of China provides for a basic but rather ambiguous protection of religious freedom (O’Connell, 2020). It expressly states that citizens are free to exercise religion though the following section specifies that their chosen religious doctrines should abide by what is characterized as “normal” by the Chinese State. This characterization is then delineated as any activity that does not upset public order, threaten public health, or conflict with the State’s educational policies.  However, the term is not explicated in the Constitution or other legislation (Tibet Watch, 2007). Arguably, the criterion of normality can circumscribe any practice that exceeds its definitional limits. Notwithstanding every citizen’s fundamental duty to respect the laws and, by extension, the rights of others, the ambiguity of the term “normal” leaves the door ajar for subjective and potentially unjust interpretations.

B. The Religious Affairs Regulations

The Religious Affairs Regulations’ text essentially echoes the constitutional mandate. The practice of any religion is protected, granted that it does not contradict the normality criterion. An international organisation has described these regulations as part of China’s security policy, aiming to increase state control over the activity of particular social groups (International Campaign for Tibet, 2016). Therefore, the criticism that the Religious Affairs Regulations fail to protect Tibetans’ religious freedom can be sustained.

At this point, it is important to note that the domestic legislation of the People’s Republic of China contains numerous clauses in support of the right to freedom of religion (Ping Xiong 2013). Thus, further research is necessary to produce a more comprehensive result regarding the right’s protection. However, the author’s understanding of Chinese legislation is limited by the available sources, which are conceivably not explicit. Therefore, a concrete examination of the Chinese authorities’ claims regarding the physical properties of the statues or the monastery contravening local building policy could not be substantiated. Yet, recourse can be sought at the international level. Consequently, the focus will turn to international treaties for the protection of religious freedom.

International law

A. The Universal Declaration of Human Rights

Among other international treaties, the PRC has signed the UDHR. Article 18 provides for the protection of religious freedom as a fundamental right. According to the UN Human Rights Committee, the ambit of Article 18 extends to religious rituals, physical places of worship, ritual objects, symbols, as well as holidays and days of rest (Human Rights Committee, 1993). Evidently, the UDHR protects the Tibetans’ right to practice their religion in their chosen facilities and to utilise relevant symbols or objects. Thus, the recent incidents concerning the demolition of statues and prayer wheels as well as the wrecking of the Monastic School conflict with China’s obligations to respect religious freedom stemming from the UDHR.

It is worth noting that the UDHR’s protection of religion has been criticised for stipulating a minimalistic enunciation of religious liberty without a consistent meaning throughout time (Lindkvist, 2013). Yet, this evaluation of Article 18 could expand its ambit and provide for its application on a case-by-case basis. Hence, even according to this interpretation, the Tibetans’ religious rights should have been afforded protection.

B. The International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights is a comprehensive instrument in international human rights law ratified by the PRC since 2001. Article 15(1)(a) specifically refers to the State’s obligation to ensure every citizen’s right to participate in cultural life. Notwithstanding the absence of a precise reference to religion, the provision is an implicit barrier that prohibits state interference with cultural practises and goods (Committee on Economic, Social and Cultural Rights, 2009). Under the premise that religion is a component of culture (Edara, 2017) and the ICESCR’s protection of the right to religious freedom is implied, it becomes evident that the actions by the Chinese authorities infringed the Tibetans’ cultural rights as preserved by the Covenant.

c. The United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief

Another international instrument to gauge the Chinese State’s actions is the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Articles 1, 6 (a)(c)(h) of the Declaration refer to the right to freedom of religion, the right to engage in religious practises and the right to perform ceremonies within the precept of one’s religious beliefs. In other words, the Declaration fleshes out the notion of religious freedom and subsumes the right to assemble and establish places of worship (Dziedzic, 2013). Subsequently, the Tibetans’ right to congregate and set up religious facilities falls under the protection of the United Nations Declaration.

CONCLUSION

The foregoing analysis aimed to demonstrate how the Chinese authorities’ recent actions in Tibet contravened the PRC’s legal obligations to safeguard the right to freedom of religion. Arguably, the PRC’s domestic legislation offers a certain degree of protection, albeit its internal parameters restrict its potential. For this reason, it is useful to measure the legality of the narrated events based on the mandate of international human rights instruments that the PRC has adopted. The discussion on the violation of a minority’s cultural and religious rights is important because the effect of these practises is often tacit since they do not always employ physical violence or produce actual victims. Hence, these cases attract a lessened degree of reproach. Last, it is important to bring the topic to the fore to raise awareness and prevent perpetrators from enjoying impunity. Otherwise, there is a risk of normalising the abuse and reshaping global human rights by weakening the protection of vulnerable groups or individuals.

All in all, the PRC’s laws can be understood to allow for cultural relativism. Despite the ambiguity of the state discourse, the current form of its legislation leaves room for the implementation of the rights arising from international instruments (Chaney, 2017). Nevertheless, apart from the discussion on the instruments’ normative capabilities, the need for consistency between law and practice is prevalent.

Bibliography

Online sources

Dolma C. (2021, December 27). China destroys a giant Buddha statue in Draggo County, eastern Tibet. The Tibet Post International. https://www.thetibetpost.com/en/news/132-tibet/7189-chinese-authorities-destroyed-giant-buddha-statue-in-drago,-tibet

International Campaign for Tibet (2016, October 25). Suffocating religious freedom in Tibet: China’s draft regulations on religious affairs. https://savetibet.org/suffocating-religious-freedom-in-tibet-chinas-draft-regulations-on-religious-affairs/#4 

Lhamo, C. (2022, January 10). Another giant Buddha statue demolished in Tibet’s Kham region. Phayul. https://www.phayul.com/2022/01/10/46638/

Ngodup, P. (2021, November 6). Tibetans forced to demolish school attached to monastery in Sichuan’s Karze. Radio Free Asia. https://www.rfa.org/english/news/tibet/monastery-demolition-11062021080048.html 

O’Connell, G. (2020, August 19). How China is Violating Human Rights Treaties and its own Constitution in Xinjiang. Just Security. https://www.justsecurity.org/72074/how-china-is-violating-human-rights-treaties-and-its-own-constitution-in-xinjiang/ 

Southerland, D. (2016, August 9). After 50 years, Tibetans Recall the Cultural Revolution. Radio Free Asia. https://www.rfa.org/english/commentaries/tibet-cultrev-08092016145355.html 

Staff Reporter (2021, December 28). “Cultural Revolution like crackdown”: China demolished a sky-high Buddha statue and 45 huge prayer wheels in Drakgo, Tibet. Central Tibetan Administration. https://tibet.net/cultural-revolution-like-crackdown-china-demolished-a-sky-high-buddha-statue-and-45-huge-prayer-wheels-in-drakgo-tibet/ 

Journal Articles

Chaney, P. (2017). Civil society, human rights and religious freedom in the People’s Republic of China: analysis of CSOs’ Universal Periodic Review discourse. The International Journal of Human Rights, 22(4), 503-524.

Dziedzic, P. (2013). Religion Under Fire: A Report and Policy Paper on Religious Freedom in Tibet. The Tibet journal, 38(3-4), 87-113.

Edara, I. R. (2017). Religion: A Subset of Culture and an Expression of Spirituality. Advances in Anthropology, 7, 273-288.

Klein, R. (2011). An Analysis of China’s Human Rights Policies in Tibet: China’s Compliance with the Mandates of International Law regarding Civil and Political Rights. ILSA Journal of International and Comparative Law, 18(1), 115-166.

Lindkvist, L. (2013). The Politics of Article 18: Religious Liberty in the Universal Declaration of Human Rights. Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 4(3), 429-447.

Ping Xiong. (2013). Freedom of Religion in China Under the Current Legal Framework and Foreign Religious Bodies. Brigham Young University Law Review, 2013(3), 605–617.

Books

Lemkin, R. (1944). Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress. Carnegie Endowment for International Peace.

NGO Reports

Tibet Watch (2007). No faith in the state. https://static1.squarespace.com/static/5c6d7c35b2cf790541327f25/t/5c922c41971a1827dbcc455b/1553083467991/nofaithfinal.pdf

UN Documents

UN Human Rights Committee (1993). CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion). CCPR/C/21/Rev.1/Add.4. https://www.refworld.org/docid/453883fb22.html

UN Committee on Economic, Social and Cultural Rights (2009). General Comment 21. Right of everyone to take part in cultural life (art. 15, para. 1(a) of the International Covenant on Economic, Social and Cultural Rights). E/C.12/GC/21. https://www.refworld.org/docid/4ed35bae2.html

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Mandakini

Coordinator - Tibet Team

Mandakini graduated with honours from the Geneva Academy of International Humanitarian Law and Human Rights. Her team analyses the human rights violations faced by Tibetans through a legal lens.

Kenza Mena
Team Coordinator -China

Kenza Mena has expertise in international criminal law since she is currently pursuing a last-year Master’s degree in International Criminal Justice at Paris II Panthéon-Assas and obtained with honors cum laude an LLM in International and Transnational Criminal Law from the University of Amsterdam. She also holds a Bachelor’s degree in French and Anglo-American law. 

Since September 2021, she has been the coordinator of Team China at GHRD, a country where violations of human rights, even international crimes, are frequently perpetrated by representatives of the State. Within Team China, awareness is also raised on discrimination that Chinese women and minorities in the country and, more generally, Chinese people around the world are facing.

Kenza believes that the primary key step to tackle atrocities perpetrated around the world is advocacy and promotion of human rights.

Aimilina Sarafi
Pakistan Coordinator

Aimilina Sarafi holds a Bachelor’s degree cum laude in International Relations and Organisations from Leiden University and is currently pursuing a Double Legal Master’s degree (LLM) in Public International Law and International Criminal Law at the University of Amsterdam.
She is an active advocate for the human rights of all peoples in her community and is passionate about creating a better world for future generations. Aimilina is the coordinator for the GHRD team of Pakistan, in which human rights violations of minority communities in Pakistan are investigated and legally evaluated based on international human rights legal standards.
Her team is working on raising awareness on the plight of minority communities such as women, children, religious and ethnic minorities within Pakistan.

Lukas Mitidieri
Coordinator & Head Researcher- Bangladesh

Lucas Mitidieri is currently pursuing his bachelor’s degree in International Relations at the Federal University of Rio de Janeiro (UFRJ). As the GHRD Bangladesh Team Coordinator, he advocates for human rights and monitors violations across all minorities and marginalized groups in Bangladesh. Lucas believes that the fight for International Human Rights is the key to a world with better social justice and greater equality.

Nicole Hutchinson
Editorial Team Lead

Nicole has an MSc in International Development Studies with a focus on migration. She is passionate about promoting human rights and fighting poverty through advocacy and empowering human choice. Nicole believes that even the simplest social justice efforts, when properly nurtured, can bring about radical and positive change worldwide.

Gabriela Johannen
Coordinator & Head Researcher – India

Gabriela Johannen is a lawyer admitted to the German bar and holds extensive knowledge in the fields of human rights, refugee law, and international law. After working for various courts and law firms in her home country, she decided to obtain an LL.M. degree from Utrecht University where she studied Public International Law with a special focus on Human Rights. Additionally, while working as a pro-bono legal advisor for refugees, she expanded her knowledge in the fields of refugee law and migration.

Gabriela is the coordinator and head researcher for GHRD India, a country, she has had a personal connection with since childhood. Her primary focus is to raise awareness for the severe human rights violations against minorities and marginalized groups that continue to occur on a daily basis in India. By emphasizing the happenings and educating the general public, she hopes to create a better world for future generations.

João Victor
Coordinator & Head Researcher – International Justice

João Victor is a young Brazilian lawyer who leads our team of International Justice and Human Rights. He holds a Bachelor’s degree in Law from the Federal University of Rio de Janeiro, Brazil and possesses over 5 years of experience in dealing with Human Rights and International Law issues both in Brazil and internationally, including the protection of refugees’ rights and the strengthening of accountability measures against torture crimes.

João has an extensive research engagement with subjects related to International Justice in general, and more specifically with the study of the jurisprudence of Human Rights Courts regarding the rise of populist and anti-terrorist measures taken by national governments. He is also interested in the different impacts that new technologies may provoke on the maintenance of Human Rights online, and how enforcing the due diligence rules among private technology companies might secure these rights against gross Human Rights violations.

Célinne Bodinger
Environment and Human Rights Coordinator

As the Environment and Human Rights Coordinator, Célinne is passionate about the health of our planet and every life on it.

Angela Roncetti
Team Coordinator and Head Researcher- South America

Angela holds a Bachelor of Laws (LL.B) from Vitória Law School (FDV) in Brazil. Her research combines more than five years of experience conducting debates and studies on the rights of homeless people, the elderly, children, and refugees. Besides that, she also volunteers in a social project called Sou Diferente (I am Different in English), where she coordinates and takes part in actions aimed at the assistance and the emancipation of vulnerable groups in the cities of the metropolitan area of Espírito Santo state (Brazil).

Lina Borchardt
Team Head (Promotions)
(Europe)

She is currently heading the Promotions Team and University Chapter of Global Human Rights Defence. Her background is the one of European and International Law, which I am studying in The Hague. She has previously gained experience at Women´s Rights organizations in Germany, the Netherlands and Turkey over the past years.
She has been working for Global Human Rights Defence in the Netherlands since 2020. Her focus now is concentrated on the Human Rights and Minorities Film Festival and the cooperation of GHRD with students across the country.

Pedro Ivo Oliveira
Team Coordinator and Researcher
(Africa)

Pedro holds an extensive background in Human Rights, especially in Global Health, LGBTQ+ issues, and HIV and AIDS. He is currently finishing his Bachelor’s Degree in International Relations and Affairs at the Pontifical Catholic University of Minas Gerais, Brazil. Moreover, he successfully attended the Bilingual Summer School in Human Rights Education promoted by the Federal University of Minas Gerais and the Association of Universities of the Montevideo Group. Besides, Pedro Ivo has a diversified professional background, collecting experiences in many NGOs and projects.

With outstanding leadership abilities, in 2021, Pedro Ivo was the Secretary-General of the 22nd edition of the biggest UN Model in Latin America: the MINIONU. Fluent in Portuguese, English, and Spanish, Pedro Ivo is the Team Coordinator and Head Researcher of the Team Africa at Global Human Rights Defence. Hence, his focus is to empower his team from many parts of the world about the Human Rights Situation in the African continent, meanwhile having a humanized approach.

Alessandro Cosmo
GHRD Youth Ambassador
(European Union)

Alessandro Cosmo obtained his B.A. with Honors from Leiden University College where he studied International Law with a minor in Social and Business Entrepreneurship. He is currently pursuing an LL.M. in Public International Law at Utrecht University with a specialization in Conflict and Security. 
As GHRD’s E.U. Youth Ambassador, Alessandro’s two main focuses are to broaden the Defence’s reach within E.U. institutions and political parties, as well as mediate relations between human rights organizations abroad seeking European funding. 
Alessandro believes that human rights advocacy requires grass-roots initiatives where victims’ voices are amplified and not paraphrased or spoken for. He will therefore act on this agenda when representing Global Human Rights Defence domestically and abroad

Veronica Delgado
Team Coordinator and Researcher- Japan, Sri Lanka & Tibet

Veronica is a Colombian lawyer who leads our team of Japan, Sri Lanka and Tibet. She holds a master’s degree in Public International Law from Utrecht University. She has experience in Colombian law firms. Here she represented clients before constitutional courts. She also outlined legal concepts to state entities such as the Ministry of Foreign Affairs and the Ombudsman’s Office on international law issues.

Veronica has an extensive research background with subjects related to public international law. She worked as an assistant researcher for more than two years for the Externado University of Colombia. Here she undertook in-depth research on constitutional, business, and human rights law issues. She was involved with consultancy services with the Colombian Army regarding transitional justice. 

Wiktoria Walczyk
Coordinator & Head Researcher (Nepal & Indonesia)

Wiktoria Walczyk has joined GHRD in June 2020 as a legal intern. She is currently coordinator and head researcher of Team Nepal and Indonesia. She has an extensive legal knowledge concerning international human rights and is passionate about children’s and minorities’ rights. Wiktoria has obtained her LL.B. in International & European Law and she specialised in Public International Law & Human Rights at The Hague University of Applied Sciences in the Netherlands. Moreover, she is pursuing her LL.M. in International & European Law and focusing on Modern Human Rights Law specialisation at the University of Wroclaw in Poland. In order to gain an essential legal experience, Wiktoria has also joined Credit Suisse’s 2021 General Counsel Graduate First Program where she is conducting her legal training and discovering the banking world. She would like to make a significant impact when it comes to the protection of fundamental human rights around the world, especially with regard to child labour. 

Fairuz Sewbaks
Coordinator and Head Researcher
(Africa)​

Fairuz Sewbaks holds extensive legal knowledge regarding international human rights, with a specific focus on human rights dealings taking place in continental Africa. She holds a bachelor’s degree from The Hague University in public international law and international human rights and successfully followed advanced human rights courses at the Centre for Human Rights, University of Pretoria. She furthermore participated in the Istanbul Summer School where she was educated about the role of epidemics and pandemics in light of human rights.

 

Fairuz is the coordinator and head researcher for GHRD Africa. Her primary focus is to establish and coordinate long-term research projects regarding the differentiating human rights dealings of vulnerable and marginalized groups in continental Africa, as well as conducting individual research projects.

Priya Lachmansingh
Coordinator and Head Researcher, Political Advisor
(Asia & America)

Priya Lachmansingh is currently pursuing her bachelor’s degree in International & European
Law at the Hague University of Applied Science.
As GHRD’s Asia & America human rights coordinator and GHRD Political Advisor, Priya’s
prominent focus is to highlight human rights violations targeted against minority and
marginalized groups in Asia and America and to broaden GHRD reach within Dutch political
parties and as well seek domestic funding.

Jasmann Chatwal
Team Coordinator & Head Coordinator: North America

Jasmann is a political science student at Leiden University who joined GHRD in May 2021 as an intern in team Pakistan. Now, she is the team coordinator for North America and is responsible for coordinating the documentation of human rights violations in USA, Canada, and America.