'Communities’ Sacred Mountains vs. State-owned Natural Resources – Towards a Rights-based Governance of Cultural and Biological Diversity in China' by Yong Zhou in (2021) 39(4) Nordic Journal of Human Rights 508-529 comments
In the multi-nation society of China, disputes related to the beliefs and customs of indigenous communities in the process of the state’s natural resources management have been increasing because of sports activities, tourism, extractive industries, hydropower and other infrastructure constructions. From a legal pluralism perspective, with a focus on the Tibetan mountain cult in the Kawagebo (Mt. Meili) mountain area, this research argues the existence of two types of governances based on different worldview, beliefs, normative frameworks and management practices: the community spiritual governance (CSG) and the state resources governance (SRG). By analysing the institutional constraints to, and the potentials of recognising the spiritual significance of, sacred mountains and rights of indigenous communities, this research justifies a pathway of turning SRG towards a ‘rights-based governance’ for coordinating these conflicts.
Zhou argues
On 4 January 1991, when the joint Japan–China expedition team almost had reached the summit of the untrodden snow-capped peak of Kawagebo (6740 metres) in Southwest China, the entire 17-member team suddenly disappeared under an avalanche. The day before there had been a shocking cultural clash: while the team celebrated successfully reaching the 6400-metre point, thousands of local Tibetans prayed to the Mountain God for the expedition’s failure. In the winter of 1996, the Academic Alpine Club of Kyoto University and their Chinese partner co-organised a second attempt at scaling Kawagebo. This time, hundreds of thousands of local villagers blocked the road entering the area. They complained that a series of harmful accidents had happened after the previous expedition, and the Mountain God would punish them even more severely if the folk rules were violated again. They argued that it was unfair that the central or local authorities had the power to give people permission to climb their holy mountain, because they could not move to another place to avoid the predicted punishment by the Mountain God. Nevertheless, the team insisted on continuing its mission and disregarded the strong resistance of local Tibetan believers. Their expedition also failed due to mysterious weather conditions.
These frustrated attempts in the 1990s inspired more mountain climbers to take on the summit. Climbers argue that the spirit of their sport decrees that no mountain cannot be trodden by human feet. It is also argued that the Chinese official ideology is atheism, which should not give room to other alternative beliefs, and that these sports activities could also bring more openness and economic development to the local communities. There were reports on several plans to scale the summit.1 Local believers, however, considered such behaviour to be a serious assault on their beliefs and customary law. They believed that the failures of the expeditions and ensuring incidents were the expressions of the god’s anger and punishment of offenders. They were therefore compelled to prevent any further mountain climbing to defend their mental, physical, and social well-being. Proposals by scholars of culture and environmental NGOs reflected on ways to resolve the tensions. In 2000, the Friends of Nature presented a proposal to the Chinese central government for a ban on climbing Kawagebo. The proposal was halfway successful, in that the central authority temporarily agreed to grant no new permissions, but did not expressly forbid climbing the mountain.
A sacred mountain is one of various kinds of sacred natural sites (SNS), meaning areas of land or water having special spiritual significance to peoples and communities. The increasingly numerous disputes concerning sacred sites in China are not limited to sports activities. Other major threats to local or indigenous communities’ SNS, including forests, rivers and lakes, are extractive industries, hydropower exploitation, infrastructure construction, and tourism. These disputes raise a major legal question: what would be a justified normative framework on sacred mountains in the Chinese context to guide the solution of such conflicts?
Through a review of related normative frameworks in the fields of human rights, cultural heritage, and natural resources, this article locates the favourable conditions and the challenges of moving towards the viable protection of SNS in various legal sources. On the one hand, it is clear that the People’s Republic of China (PRC) is legally bound by its Constitution to protect the freedoms of religion and belief (FoRB Article 36) and relevant minority rights of cultural autonomy (Article 4), which are consistent with key UN human rights conventions ratified by China, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD). In addition, ongoing practices of governance of cultural heritage and biodiversity that recognise the spiritual link between sacred mountains or other SNS and local or indigenous communities, exist in China. The state has legal obligations under the UNESCO conventions on cultural/natural heritage (1972), intangible cultural heritage (2003), and the diversity of cultural expression (2005). China has further accepted a legal obligation to acknowledge the key role of traditional knowledge and practices of indigenous and local communities for the conservation and sustainable use of biological diversity under the UN Convention on Biological Diversity (1992). Domestically, the central and local authorities have also adopted relevant laws on intangible cultural heritage (2011) and national parks (2016) for cultural conservation.
On the other hand, however, it has been observed that domestic constitutional principles malfunction. Certain ideas and the institutionalised legal order of the Communist Party’s governance can contradict these principles in the Chinese ‘party-state’ context. In addition, although China internationally supports the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), it denies the existence of indigenous peoples in the country. This official standpoint not only means that the government neglects the relevant rights, but also limits the ability of these peripheral peoples in China to voice their interests and claim the rights of indigenous peoples.
The existing disputes on sacred mountains in peripheral peoples’ homelands in China suggest a pressing demand for exploring the issues around integrating indigenous peoples’ rights into the country’s domestic law. By assuming that fundamental human rights principles could provide a justified normative framework for bridging the governance gap on natural resources between the orders of folk law and state law in general, this paper narrows down its discussion to the two fundamental principles articulated in the PRC’s Constitution: FoRB and cultural autonomy. Its central question is therefore: what are the constraints, potentials, and possible ways of institutionalising the two constitutional freedoms for conflict resolution on SNS?
This research adopts the methodology of ‘a descriptive conception of legal pluralism’ in observing and analysing the given conflicts. To use the term ‘legal pluralism’ in this perspective means acknowledging that, as Griffiths describes, law and legal institutions are not all subsumable within one ‘system’ but have their sources in the self-regulatory activities of all the multifarious social fields present, activities which may support, complement, ignore or frustrate one another, so that the ‘law’ which is actually effective on the ‘ground floor’ of society is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism, and the like.
This article will first explore the sacred mountain conflicts as expressions of two types of governance, one based on folk law and the other on state law, with different postulates. These can be called community spiritual governance (CSG) and state resources governance (SRG). Second, assuming that the two fundamental constitutional principles of FoRB and cultural autonomy could bridge the gap between CSG and SRG, the article explores the existing institutionalised normative order that constrains the functioning of these principles. Third, by observing the potential of recognising the link between sacred mountains or other SNS and indigenous or local communities in the recent practice of cultural heritage and biodiversity governance, this research finds that these normative frameworks and social practices thus produced provide dynamics and possibilities which may break through the above constraints. However, I argue that the key element for closing the gap between the two types of governance is to make a turn towards a ‘rights-based governance’ within SRG. For this purpose, I propose a two-step pathway towards creating a normative framework for such conflict resolution in Chinese state law.
