Responsibility of States under International Law to Uyghurs and other Turkic Muslims in Xinjiang, China

22 July 2020

The Afāq Khoja Mausoleum; a holy Uyghur Muslim site in Xinjiang, China. Allegations of mass destruction of several burial grounds elsewhere in Xinjiang have been reported by a number of independent sources. Image Courtesy: Carsten ten Brink.

The Bar Human Rights Committee has launched a high-level Briefing Paper on the Responsibility of States under International Law to the Uyghurs and other Turkic Muslims, co-authored by Aarif Abraham, a member of Garden Court North’s International Team, together with other leading human rights barristers.

The Briefing Paper, assesses the vast number of allegations, emanating from independent and/or credible sources, which suggest that Uyghurs and other Turkic Muslims in China are subjected, by the Chinese State, to many forms of severe mistreatment, abuse and repression. The allegations, if proven, would constitute very serious violations of international human rights and international criminal law; violations which are alleged to be continuing even now.

Alleged violations of international law

The alleged violations of international law include the mass surveillance and arbitrary detention of over 1 million Uyghurs and other Turkic Muslims, torture and inhuman treatment of detainees, the forced separation of children from their parents, the denial of the right of Uyghurs to practice their religion or speak their language, forced sterilisation, forced labour, forced organ harvesting, enforced disappearances, forcible transfer and deportation, and killings in detention.

The Briefing Paper identifies that the evidence, that has given rise to the allegations, raises serious concerns that obligations and/or duties under a number of international treaties, ratified or accepted by China, have been violated including but not limited to the: Convention on the Elimination of All Forms of Racial Discrimination (“CERD”); Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (“UNCAT”); Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”); Convention on the Rights of the Child (“CRC”); and Slavery Convention.

Responsibility of China and States other than China

As a State Party to those treaties, China is required to:

1. prohibit its officials, agents or organs (or others within its jurisdiction) from violating the rights of its citizens and/or committing crimes against them;
2. ensure that, in some instances, it prevents crimes or rights violations before they occur and, in particular, serious crimes such as torture, genocide, slavery and discrimination; and/or
3. fulfil a duty to punish perpetrators of crimes or rights violations when they occur.

The Briefing Paper considers the legal mechanisms that States may utilise in order to invoke China’s responsibility for alleged violations of its international human rights obligations. It emphasises the legal interest – and indeed arguably the moral and ethical imperative – of States other than China in ensuring China’s compliance with its international human rights obligations. The Briefing Paper then sets-out, in detail, the recommended measures that States other than China may, and must, take to ensure China’s compliance and prevent ongoing and future violations.

Redress for violations of international law

There are no avenues for the fair, independent and impartial adjudication of serious violations of human rights domestically within China and there are certain limitations upon holding China legally accountable for alleged violations/crimes internationally in a formal court of law and/or an international, independent, impartial forum. These emanate from reservations on the dispute resolution clauses, complaints clauses, and inter-State resolution mechanisms that would allow enforcement of the treaties to which China is a State party. China placed those reservations at the outset; when it signed, ratified and/or acceded to the relevant treaties. Such limitations, however, do not absolve China and, in particular, the world at large of responsibility. As the briefing paper notes:

“All States, including China, have unequivocally accepted that slavery and racial discrimination, torture and genocide are prohibited: they have committed to not carry out those proscribed acts, they have committed to their prevention; and they have committed to punishment of perpetrators where they have found individuals to have committed those proscribed acts. There can be no derogation from those commitments. As such, all States have a right to invoke the responsibility of China for any failure to uphold its obligations under the aforementioned conventions and/ or customary international law, and any resulting violations of jus cogens norms and erga omnes (partes) obligations.”

Recommendations and a way forward

The Briefing Paper sets out a series of practical recommendations that individuals, states, companies and civil society can pursue, among other things, to allow for the: cessation of any continuing violations; investigation and punishment of perpetrators; prevention of future violations; and just satisfaction or remedial measures for those who have suffered harm.

States other than China may, and should, ensure China’s compliance with its international obligations by: invoking its responsibility in any available international forums including at the United Nations and, in particular, international dispute mechanisms such as the Committee for the Elimination of Racial Discrimination; using all diplomatic means and good offices of State; and/or by implementing Magnitsky-type sanctions on individual perpetrators of grave human rights violations. States should also take steps under domestic law to ensure that international corporations that operate in, or whose supply chains are linked to, Xinjiang Uyghur Autonomous Region (“Xinjiang” or “XUAR”) implement measures and conduct necessary due diligence to ensure that their operations do not contribute in any way to the commission of alleged violations of human rights in XUAR by the Chinese authorities.

In the absence of any action by China itself or international organisations, all States should, support and assist independent, impartial and international mechanisms (whether state or non-state) to carry out investigations to determine comprehensively any violation by China of its jus cogens obligations and responsibilities. Such a mechanism may be founded, with the support of States, as an ad hoc process independent of international bodies where those bodies do not have a mandate.

Inter-State dispute procedure under CERD

In respect of CERD, China has not made a reservation to Article 11 CERD according to which States Parties accept the competence of the Committee on the Elimination of Racial Discrimination to examine inter-State disputes regarding the application of the Convention. Much of the alleged mistreatment suffered by the Uyghurs violates the rights guaranteed by CERD. The Committee on the Elimination of Racial Discrimination provides a means by which State Parties to CERD can, and should, seek to invoke China’s international responsibility with respect to its treatment of the Uyghurs.

The inter-State procedure was utilised, for the first time ever, in 2018 since when it has been utilised on two further occasions. On 8 March 2018, the State of Qatar submitted an inter-state communication against the Kingdom of Saudi Arabia as well as another inter-state communication against the United Arab Emirates. On 23 April 2018, the State of Palestine submitted an inter-state communication against the State of Israel. Even though States around the world may not be considered an ‘injured party’ (in respect of any harm being inflicted on Uyghurs) they may bring China before the inter-State dispute procedure. The alleged discriminatory treatment being suffered by the Uyghurs could be considered a violation of jus cogens norms and a matter of grave concern to the international community as a whole as the prohibition on discrimination under CERD would be considered erga omnes in character.

Responsibility of all States to take all available legal measures

As the Briefing Paper concludes, in the absence of action by China itself and the relevant international bodies, it is the responsibility of all States to take all available measures to prevent any violations of international law from occurring, to seek to bring any on-going violations to an end, and to call upon China to immediately cease all and any alleged practices and policies – violating its obligations and responsibilities – towards the Uyghurs and other Turkic Muslims.

The Briefing Paper was written under the BHRC Chairwomanship of Schona Jolly QC. Other co-authors include Schona Jolly QC, David McNeill and others who must remain anonymous. Mira Hammad, Pupil Barrister at Garden Court North, contributed to the paper. The Briefing Paper can be downloaded directly here.

The Briefing Paper is dedicated to the invaluable and courageous work of witnesses, survivors, victims, journalists and investigators in bringing to light the factual information despite the risks to them and their families. This information was, and is, essential in order for the international community to take urgent, concrete and practical steps to hold those carrying out violations of fundamental human rights to account.

If you would like to know more about our international work, please contact our Head of Practice Management, Annmarie Nightingale, on +44 (0) 161 817 6377 or at gcn@gcnchambers.co.uk.