The Uighur Conflict: International Law Perspective
Written by Anjana Sathy
Research Associate at Law & Order
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Though the Xinjiang region of China has been a minority-rich province with over 45% of the population belonging to the Uighur ethnic group, this minority group has been the victim of state-sponsored oppression and human rights violations. The Uighurs are a Turkic minority ethnic group, primarily centered to Xinjiang or the Xinjiang Uyghur Autonomous Region in the People’s Republic of China, forming one part of the ongoing Xinjiang conflict with China (Dwyer, 2005). Historically, Xinjiang has been considered the nexus, connecting the East and the West (Han, 2014), due to its strategic location along the ancient Silk Road. Since the inclusion of the Xinjiang region into the main territory of China, government policies promoting Chinese culture, separatism, and religious intolerance (Ke, 2018) have contributed to the burgeoning tensions between the Uighurs and the Chinese Government at large. Despite conflict situations existing since the 1950s, these tensions have grown into more serious instances of riots, bombings, armed protests, public attacks, and other terrorist activities (Finley, 2013).
More recently, Chinese internal policies have grown to include mass surveillance and large-scale incarceration without trial (Ramzy & Buckley, 2019). The culmination of these actions was the revival of the abolished practice of ‘re-education through labor’ program (“What Happens,” 2020). These steps by the Chinese government, more specifically the campaign of influencing non-Chinese groups (in this case, the Uighurs) have been called into question by the international community. With several nations taking firm stances for and against these policies, the question of such activities resulting in a situation of cultural genocide (Finnegan, 2015) has also been raised at the United Nations. This article shall discuss the international law perspective of this conflict, with an emphasis on China's lack of accountability towards international human rights treaties.
International Law Perspective
Chinese authorities have claimed their policies to be rooted in the prevention of radicalization and extremism in the region, along with the development of the Xinjiang region.
However, according to international standards, these policies have clearly indicated intolerance, curtailment of freedoms, human rights violations, and cultural genocide (Towadi, 2021).
Proof of human rights violations is apparent in policies that prohibit the inclusion of children in religious activities and education from Islamic schools and Madrassas (Suastha, 2016). Further, re-education program centers have been established, where almost a million Uighurs have been detained. Reports indicate mass physical and psychological abuse through forced religious conversion methods running rampant within these centers (Human Rights Watch, 2018), resulting in innumerable international law violations at the world stage.
International consensus on religious freedom is evident in Articles 18, 19, 20, and 27 of the International Convention on Civil and Political Rights (ICCPR).
These provisions include the freedom to express and the right to adopt any religion of choice, the freedom of minorities to enjoy and profess their religion, and the prohibition of discrimination based on these choices. (United Nations, 1966).
Notably, China is the only permanent member of the United Nations Security Council that has not ratified the ICCPR in its entirety. This seemed to have provided them leeway in implementing programs and policies that violate the provisions of ICCPR.
On the other hand, Chinese policies against religious freedom and the subsequent internment of Uighurs in camps have also resulted in situations of discrimination. Customary international law consists of ‘general practice(s) accepted as law’ as per Article 38(1)(b) of the ICJ Statute, which is determined through the general practice of states along with what States have accepted as law (opinio juris) (United Nations, 1945). The right against discrimination generally stems from these customary international law norms (Lepard, 2010), namely the right to equality and equal treatment (Mackerras, 2003), as well as from the Rome Statute which governs instances of genocide and other crimes against humanity (Kim, 2004).
Although China did not ratify the Rome Statute either, respecting its provisions has been considered a moral obligation for all UN member states, arising out of natural law and customary international law (Ambos, 2013). Furthermore, Chapter II of the Constitution of the People's Republic of China (1984) that deals with Fundamental Rights and Duties of Citizens (People’s Republic of China, 1982) has adopted the international principle of equality before the law.
China has ratified four international Human Rights conventions namely the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1981; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1980; The United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), 1988 and the International Covenant on Economic, Social and Cultural Rights (ICESCR), 2001. However, even these signed conventions have been violated through Chinese policy actions.
Article 1 of ICERD defines discrimination to include restriction and exclusion based on descent, national or ethnic origin (United Nations, 1965) — a phenomenon that is apparent in the policy changes against the Uighurs.
Further, both CEDAW and UNCAT within their scope prohibit degrading treatment, torture, and punishment along with forced detention and religious oppression (United Nations, 1979). ICESCR further explicitly recognizes people’s right to self-determination along with the freedom to pursue their own social, economic and cultural development (United Nations, 1966). Both these articles from conventions that have been voluntarily ratified by China have also been violated by the Chinese state.
Although International law is a constantly developing sphere, it is deeply rooted in natural justice and customary rules. The voluntary nature of accepting international law obligations continues to pose a serious issue to curb violations at the international level.
In the Uighur conflict heightened by Chinese policies inciting human rights violations, the reliability of international law obligations and sanctions is the biggest hurdle.
China faces no consequences for its discriminatory and degrading policies. Further, with no existing hard law or enforceable rules and despite the existence of human rights conventions, obligations continue to remain at a standstill, due to the soft law nature of these conventions themselves. With China’s economic and political power at the forefront of global affairs, there doesn’t seem to exist any state or non-state actor with significant interest, let alone the stability and power to confront China in the international sphere.
It is clear that one of the primary solutions to this decades-long conflict is the need for accountability. A startling fact remains that though the National Human Rights Action Plan of China of 2009-10 specifically commits to advance rights recognized by the ICCPR, including human rights violations (Human Rights Watch, 2017), the reality of Chinese state policy continues to prove that these commitments are not equal for all in the eyes of law. This bolsters the need for accountability in both domestic and international spheres. Domestic accountability must serve the citizens without discrimination between those of different minority or ethnic groups, while international accountability must uphold obligations under both customary international law and ratified treaty law. Furthermore, though China is not a party to the Rome Statute, there may be a possibility of conflict resolution through the International Criminal Court (individual liability) by way of individual accountability or through the International Court of Justice (State liability). But the application of international law is further complicated by China’s unwavering protection of its sovereignty, along with its geopolitical, diplomatic, and economic ties with countries that may not be able to break from its economic dominance (O’Connell, 2020), to seek accountability for China’s actions.
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