A Study On The Legal Status Of The Unrecognized Minzu

At present, there are 55 ethnic minorities in China. From 1953 to 1979 when the confirmation of Noji minority, it takes China for more than 30 years to finish the ethnic division and legal confirmation of the ethnic minorities. Even today, certain groups in the western region such as the Sherpas, the Deng people, the Gejia people, the Mosuo people, the Guqiang people and other twenty odd ethnic groups still doubt their ethnic identities and names and demand a change of their minorities altogether. As to the ethnic recognition and identity issue, mass incidents occured among the Unrecognized Minzu in several regions, which became a trigger that had a direct impact on the harmonious national relations, social stability and political stability.The Unrecognized Minzu is not only the historical remain of Chinese ethnic recognition but also a state of facts presented:some have been recognized and classified into other minorities, but it is still controversial; some have been recognized but their ethnic minorities haven't been decided yet; the others haven't been taken into the recognition process. As to the fact that the Unrecognized Minzu haven't been identified by the country(the central goverment), their corresponding rights can't be safeguarded completely and efficiently. Moreover the legal norms and the political documents involving the minorities' rights and interests exclude the Unrecognized Minzu, which has become a blind spot in the legal policy:on the one hand, being independent ethnic minorities, the Unrecognized Minzu lose their central legal statuses as legal subject identities; on the other hand, the Unrecognized Minzu who can't be regarded as ethnic minorities or "Shaoshao Minzu" can't enjoy their rights and interests.This paper aims to promoting the protection of the rights of the Unrecognized Minzu, from the prospective of law, on the basis of identity theory, culture diversity theory as well as international human rights theory, especially the minority rights theory, and under the guidance of the national equality theory. Through the investigation into the social status and the interests protection of the Unrecognized Minzu, the paper attemps to present a comparative study on the legal policies between the Unrecognized Minzu and the set minorities and analyzes the legal statuses and prospect of the Unrecognized Minzu, that is, whether the legal protection is necessary or not? Also, how to construct it according to both the system design and the rights protection? It is reported that the best solution to the current problem is to ensure the legal status of the Unrecognized Minzu. First of all, we should view the ethnic recognition as a historical process and respond to the interests appeal and recognition of the Unrecognized Minzu. Meanwhile, we should conduct the recognition and identification further. At the same time, we need to focus on the standardization and legalization of the contemporary Chinese ethnic recognition, bringing it into line with the future contruction of the national legal system. Secondly, we should guarantee an effective legal protection of the legal status and interests of the Unrecognized Minzu which may be recognized as ethnic minorities and "Shaoshao Minzu".The first chapter makes a brief introduction to and an analysis of the historical evolution of Chinese ethnic recognition. It focuses on the following aspects:the historical background, the process of the recognition work and the standards and the methods of the ethnic recognition after the foundation of the People' Republic of China. It analyzes the specific provisions of the laws and regulations concerning the recognition. On this basis, it explores the significance and practical limitations of Chinese ethnic recognition. It suggests that the ethnic recognition during a given historical period is always related to certain national relations and national policies. The aim is to build a national relationship suited to the social values and national viewpoints to solve the national problems smoothly within the country. After the foundation of the People' Republic of China was founded, the ethnic recognition has followed the Maxism ethnic equality. It is part of the national policies which goes hand in hand with the implementation of the regional autonomy for ethnic minorities and the protection of the national policy of quality as well as the nation's action to implement the national policy of equality. However, due to the historical conditions in given periods and the political environment, it has certain limitations:first, the recognition work is non-standard and non-institutional; second, there exist some unrecognized groups as "remaining problems". From the perspective of ethnic recognition and reality, the vast majority of the Unrecognized Minzu are both ethnic minorities and "Shaoshao Minzu".The second chapter is the case study on the national identification of the Unrecognized Minzu. Based on the analysis of the theory of the national identification, this chapter attempts to take the Gejia people in Guizhou province as a case study:according to the field survey on the current situation of the identification and the constitutional elements, the chapter analyzes the various factors which led to its formation such as the historical foundation, the cultural foundation, the social factors and the side effects of the "unidentification" of their ethic identity. As to the national identity, the study shows that the group and its members have a strong sense of self-identity of their races and consider themselves different from other minorities, which has a rather wide range of social identity. The constitutional elements and the main signs of the national identification include the source traceability, historical memory, language, religion, customs, apparel culture and so on. The identification of Gejia people has a broad cultural and historical foundation and it is the result of the historical evolution. Meanwhile, it is a result of a given society, invovling the relations and interactions of social policies. In particular, during the process of social change and modernization, despite the fact that Gejia people haven't gotten legal and political recognition, it dosen't mean the disappearance of the identity identification of the ethnic group. Instead, the strong squeeze of the foreign culture and the serious threat to their survival and development have waken up and enhanced their "Minzu" self-esteem and self-identity. This "unidentification" condition plays a reverse role both in the identity awareness and boundary of the Unrecognized ethnic groups, resulting in a serious seperation between the identification of the tribes and the country.The third chapter focuses on the current situation of the national interests' protection of the Unrecognized Minzu historically and realistically. Meanwhile it also makes an analytical comparision on the political, economic and cultural interests of the set ethnic minorities. Futhermore, the author also examines and analyzes their main interests appeal and motives. It is reported that there exist serious national culture lose and decayed development of the economy and society. The Unrecognized Minzu gradually tend to be marginalized. Being independent ethnic minorities, the Unrecognized Minzu lose their central legal statuses as legal subject identities. Consquently, this leads to the uncomplete and ineffective protection of the corresponding political, economic and cultural rights. So the institutional environment of its survival and development is becoming more adverse. Particularly, in terms of the policy implementation, the government tends to pay more attention to the improvement of the material and economy, ignoring their traditional cultural characteristics and psychological factors. As to interests appeal, the Unrecognized Minzu have maintained that the government should give them national identification to safeguard their cultural dignity and rights. Furthermore, they still go on for self-expression and resistence continuously.The fourth is related to the above chapters and to discuss the necessity and the legal basis of the protection of the Unrecognized Minzu theoretically and realistically. The author introduces the identity theory, international human rights theory, culture diversity theory and the Maxism ethnic equality, ect and especially analyzes the legal basis of the protection of the Unrecognized Minzu. Among all these, the international minority rights theory and the culture identity rights are the basic theories of the protection of it. Culture diversity is the ethical basis of the protection while national equality is the major constitutional principles. Meanwhile the author discusses the realistic advantages and disadvantages as well as the necessity of the legal recognition. From the international perspective, the author studies and analyzes some experience and enlightment helpful for the recognition of the Unrecognized Minzu and Chinese nationalities by making investigations of the relevant legal provisions and system designs of the United States, Taiwan and other countries. On these bases, the author concludes the basic system of the Unrecognized Minzu and their legal protection. Futhermore, the author tries to draw the outline of the basic principles and future direction about the Chinese ethnic recognition. It is reported that the key point of solving the problem lies in the fact that on the basis of the constitutional principles of the national equality, we should further clarify the legal status of the Unrecognized Minzu and take it into effect to ensure that they have the same rights and can be treated equally. At the same time, to achieve success in ethnic recognition in China today, it is necessary to adjust the identification standards and gain standardization and legalization in national identification. This chapter has laid a foundation to the research of the next chapter.The fifth chapter is mainly on the concrete analysis of the prospect of their legal protection and rights protection. It is reported that clarifying the Unrecognized Minzu as the legal subject identities and making further recognition and identification are the primary premises of safeguarding their lawful rights and interests as well as making them enjoy the same rights. What's more, it's necessary to make proper adjustment of the current national preferential policy. Secondly, we should guarantee that the Unrecognized Minzu enjoy the same rights and interests, which refer to the legal status and rights protection of the Unrecognized Minzu as ethnic minorities and "Shaoshao Minzu". Considering the legal status of the ethnic minorities, it consists of political, economic and cultural statuses. Especially the Unrecognized Minzu which have little population should enjoy the equal rights both in interests safeguarding and education.Finally, the author makes a conclusion of this research and puts forward the corresponding policies and suggestions, including the restarting of the Chinese ethnic recognition and particularly formulating the Chinese National Identification Law.