Vol. 40 Associate Editor
A recent report by Human Rights Watch indicates that the Chinese government is engaging in a violent campaign against Turkic Muslims living in the Xinjiang Uyghur Autonomous Region. The People’s Republic of China (PRC) claims that it is attempting to maintain social stability. This campaign, which started in 2014 under the banner “Strike Hard Campaign against Violent Terrorism,” now includes surveillance, mass detention in re-education camps, torture and other atrocities. The PRC has an extensive history of government-sanctioned violence against religious minorities, most notably the Falun Gong, which the PRC has labelled an “evil cult.” What means of legal recourse do the Uyghurs have?
Outwardly, the Chinese constitution protects freedom of religion. Article 36 states that “[c]itizens of the People’s Republic of China enjoy freedom of religious belief” and that “[n]o State organ […] may compel citizens to believe in, or not to believe in, any religion nor may they discriminate against citizens who believe in, or do not believe in, any religion.” However, the constitution only protects “normal religious activities” (which it fails to define) and these activities cannot “disrupt public order, impair the health of citizens or interfere with the educational system of the State.” Moreover, having a constitutional claim adjudicated in the PRC is virtually impossible, and the resurgence of authoritarianism under Xi Jinping means that it’s unlikely that one will find refuge in Chinese law. International law may be the only means of redress for China’s Uyghurs.
China has signed on to several international conventions that include protections against religious discrimination. Among these is the International Covenant on Civil & Political Rights (ICCPR), which includes protections for “freedom of thought, conscience and religion” and that “no one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” Another is the International Covenant on Economic, Social & Cultural Rights (ICESCR), which includes, under Article 2 that rights are to be recognized “without religious discrimination.”
With no shortage of applicable law, enforcement is the concern. As a permanent member of the UN Security Council, China is virtually impervious to action by that body. The General Assembly, meanwhile, is terminally indecisive and ineffective. As a result, enforcement frequently takes the form of ad-hoc measures by powerful nations such as the United States. Outside observers are already viewing U.S. plans to target China with sanctions within the context of other Sino-U.S. conflicts, like North Korea’s nuclear program and territorial disputes in the South China Sea. The easier it is to delegitimize an enforcement regime, the less effective it can be at addressing violations of international law.
A shortage of caselaw means that Uyghurs are unlikely to find relief in international courts, either. This is largely due to jurisdictional issues: the International Court of Justice (ICJ) is authorized to adjudicate disputes between states, rather than within them. Accordingly, the ICJ has heard just 3 cases relating to religious liberty over the past 70 years. The International Criminal Court (ICC), meanwhile, may adjudicate cases involving individuals who have committed crimes of genocide, crimes against humanity or war crimes. But, its jurisdiction is limited to States that have accepted ICC jurisdiction and cases that are referred to the ICC Prosecutor by the United Nations Security Council. Alas, China hasn’t accepted ICC jurisdiction and, as a permanent member of the UN Security Council, it has the power to veto any resolution directing the ICC Prosecutor to investigate it.
At least one example suggests that the ICJ’s authority to issue advisory opinions may be a way to overcome some of the abovementioned obstacles. In 2003, after the General Assembly asked the ICJ to issue an advisory opinion concerning the status of a wall Israel was building in occupied Palestinian territory, the ICJ declared the wall illegal as a matter of international law. It also established that both the ICCPR and the ICESCR applied and were relevant in this case. Subsequently, the majority of the UN General Assembly passed resolution ES-10/15, demanding that Israel comply with the ICJ’s ruling. While Israel hasn’t ceased construction of the wall, the ICJ ruling likely added additional impetus for the General Assembly’s resolution. Furthermore, calling on the ICJ to opine on cases implicating international human rights treaties such as the ICCPR more frequently is the only way to establish caselaw that other parties, including China’s Uyghur population, could rely on.
The ICJ’s predecessor, the Permanent Court of International Justice (PCIJ), was more proactive than the ICJ regarding the rights of religious minorities, and its example also reinforces the value of advisory opinions. For instance, in 1928, the PCIJ recognized free exercise rights for Polish and German minorities living in Upper Silesia. In 1930, the PCIJ issued an advisory opinion indicating that minorities in Greece and Bulgaria were entitled to retain elements of their cultural and communal identities, including religion. Finally, in 1936, in another advisory opinion, the PCIJ noted that Albania’s obligations to its minority populations included ensuring that religious minorities received equal treatment before the law. Anecdotally, these cases confirm that advisory opinions could function as a means to develop modern-day jurisprudence concerning religious liberty. Moreover, the PCIJ claimed jurisdiction over cases that the ICJ does not, including hearing cases between individuals and states. Accordingly, expanding the ICJ’s jurisdiction and incentivizing it to be more proactive on these matters may be an important step in making it a more prominent actor in the field of international human rights. One way to accomplish this might be to allow minority groups facing repression, like the Uyghurs in China, to bring a suit at the ICJ if sponsored by a UN member state.
Presently, international law lacks a coherent enforcement mechanism that would hold China accountable for its abuses against the Uyghurs. Instead, it relies on a regime of ad-hoc enforcement by countries such as the U.S., which undermines the effectiveness and legitimacy of international institutions. In order to begin addressing this issue more effectively, the UN General Assembly should seek advisory opinions from the ICJ more frequently. This may lend some credibility to subsequent enforcement action by UN member states. Similarly, by expanding the ICJs jurisdiction to include individual claims, the ICJ could develop a more robust body of international caselaw regarding minority cultural rights, a crucial step in ensuring those rights are better protected than they are at present.
 Human Rights Watch, Eradicating Ideological Viruses: China’s Campaign of Repression Against Xinjiang’s Muslims, Sept. 9, 2018, https://www.hrw.org/report/2018/09/09/eradicating-ideological-viruses/chinas-campaign-repression-against-xinjiangs (last visited Sept. 30, 2018).
 Id., see also BBC, Why Is There Tension Between China and the Uighurs?, Sept. 26, 2014, https://www.bbc.com/news/world-asia-china-26414014 (asserting that Uyghurs have faced repression by Chinese authorities during many years prior to this as well).
 Human Rights Watch, World Report 2016: China (2016), https://www.hrw.org/world-report/2017/country-chapters/china-and-tibet#ada87c (last visited Sept. 30, 2018).
 Zhonghua renmin gongheguo xianfa [Constitution] Nov. 16, 2007, art. 36 (China), http://www.npc.gov.cn/englishnpc/Constitution/2007-11/15/content_1372964.htm (last visited Sept. 30, 2018).
 Keith Hand, Resolving Constitutional Disputes in Contemporary China, 7 E. Asia L. Rev. 51, 160 (2012).
 Steven Lee Myers, With Xi’s Power Grab, China Joins New Era of Strongmen, N.Y. Times (Feb. 26, 2018), https://www.nytimes.com/2018/02/26/world/asia/china-xi-jinping-authoritarianism.html.
 International Covenant on Civil and Political Rights, art. 18, Mar. 23, 1976, 999 U.N.T.S. 171, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (last visited Sept. 30, 2018).
 International Covenant on Economic, Social and Cultural Rights, art. 2, Jan. 3, 1976, 993 U.N.T.S. 3, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.
 Ewelina U. Ochab, The Much Needed Code of Conduct at the UN Security Council, Forbes (Jul. 2, 2017), https://www.forbes.com/sites/ewelinaochab/2017/07/02/the-much-needed-code-of-conduct-at-the-un-security-council/#6f7bcda86815.
 See Lydia Stewart, Revitalization of the Work of the General Assembly, GlobalPolicy.org (2009), https://www.globalpolicy.org/images/pdfs/04revitalization.pdf (Noting that debate in the General Assembly is often repetitive, that the assembly doesn’t have an “effective mechanism” to determine how its resolutions are being implemented, and that due in part to its smaller size, the Security Council’s “decision-making [is] somewhat more exclusive and easier…”).
 See Alfred W. McCoy, You Must Follow International Law (Unless You’re America), The Nation (Feb. 24, 2015), https://www.thenation.com/article/you-must-follow-international-law-unless-youre-america/.
 See David Tweed & Adrian Leung, Five Asia Flashpoints to Watch as U.S.-China Trade War Heats Up, Bloomberg (Sept. 17, 2018), https://www.bloomberg.com/news/articles/2018-09-18/five-asia-flashpoints-to-watch-as-u-s-china-trade-war-heats-up; Edward Wong, U.S. Weighs Sanctions Against Chinese Officials Over Muslim Detention Camps, N.Y. Times (Sept. 10, 2018), https://www.nytimes.com/2018/09/10/world/asia/us-china-sanctions-muslim-camps.html.
 Anagha Sundararajan, Religious Freedom and International Law: the Protection of Religious Minorities in International Tribunals (U. Chicago Law Sch. Intl. Immersion Program, Working Paper No. 67, 2017), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1066&context=international_immersion_program_papers.
 International Criminal Court, Legal Process, https://www.icc-cpi.int/about/how-the-court-works/Pages/default.aspx#legalProcess (last visited Sept. 30, 2018).
 The General Assembly invoked Article 96 of the UN Charter which provides that “[t]he General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.” U.N. Charter art. 96.
 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Overview of the Case, https://www.icj-cij.org/en/case/131 (last visited Sept. 30, 2018).
 Legal Consequences of The Construction of A Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. Rep. 136 at ¶ 111 (July 9), https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf.
 UN News, UN Assembly Votes Overwhelmingly to Demand Israel Comply with ICJ Ruling, (July 20, 2004), https://news.un.org/en/story/2004/07/110152-un-assembly-votes-overwhelmingly-demand-israel-comply-icj-ruling.
 See The Rights of Minorities In Upper Silesia (Germany v. Poland), Judgment, 1928 P.C.I.J. (ser. A) No. 15 (Apr. 26), http://www.worldcourts.com/pcij/eng/decisions/1928.04.26_upper_silesia.htm.
 See Greco-Bulgarian Communities, Advisory Opinion, 1930 P.C.I.J. (ser. B) No. 17 (July 31), http://www.worldcourts.com/pcij/eng/decisions/1930.07.31_greco-bulgarian.htm.
 See Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6) http://www.worldcourts.com/pcij/eng/decisions/1935.04.06_albania.htm.
 Sidney B. Jacoby, Some Aspects of the Jurisdiction of the Permanent Court of International Justice, 30 Am. J. Int’l. L. 233, 234 (1936).