China’s Answer to the U.N. Report on Xinjiang: Taking It Seriously, But Not on the Merits
Vol. 44 Associate Editor
On August 31, 2022, the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) released an assessment (the “Assessment”) detailing the Chinese government’s treatment of Uyghurs in China’s Xinjiang region. It reports that Uyghurs were forcibly detained in camps where they were allegedly subject to torture, sexual violence, and denied the right to practice their religion or speak their native language. The OHCHR concluded that the “arbitrary and discriminatory detention of members of Uyghur and other predominantly Muslim groups” may constitute crimes against humanity. In addition to denying the Assessment’s characterization of the camps in Xinjiang, China responded by claiming that its actions complied with international law, particularly its duty to combat terrorism. China claims that terrorism is a threat to human rights and that it is bound by international law to eradicate it. China’s response, however, bases its argument on the very international law instruments that its conduct violates. This blog argues that such blatant misapplication of international law is in bad faith, indicating that China has no intention of complying with international law, and calls upon the international community to further resist and disavow China’s legal strategy. China’s Response Misstates International Law and Its Compliance with Its Obligations China claims that its ratification of several human rights conventions proves its commitment to promoting human rights. Although ratifying a human rights treaty creates an obligation to adhere to the provisions of that treaty, merely ratifying a treaty does not necessarily mean a state is complying with the treaty. In addition to its binding treaty obligations, China is required to preserve norms that rise to the level of jus cogens, such as “prohibitions of arbitrary deprivation of life, torture, slavery, arbitrary detention, racial discrimination, and the commission of international crimes including crimes against humanity” regardless of whether they conflict with an instrument of international law. In citing the human rights treaties it has ratified and insisting that it is therefore fulfilling its obligations under international law, China rests its legal argument on its obligations arising from international laws and norms. But, the Assessment’s findings show China is violating both. China points to The United Nations Global Counter-Terrorism Strategy (the “Strategy”) and the United Nations Plan of Action to Prevent Violent Extremism (the “Plan”) to show its adherence to international law. China asserts that its policies and legal framework relating to counterterrorism in Xinjiang “reflect fully China’s due obligations as prescribed by the international human rights law.” It claims that its actions are lawful because the Strategy “clearly stresses the need to address the conditions conducive to the spread of terrorism.” China further claims that its actions in Xinjiang align with United Nations counterterrorism efforts because the Plan urges states to address the societal problems that cause violent extremism, such as “poverty, unemployment . . . and exploitation of religious belief, ethnic differences and political ideologies by violent extremist groups.” China asserts that the United Nations’s position on terrorism is that “terrorism . . . constitutes one of the most serious threats to peace and security” and that “any acts of terrorism are criminal and unjustifiable,” though it does not provide citations to specific documents. China appears to interpret the UN’s position on terrorism to mean that if acts of terrorism are unjustifiable, any counterterrorism policies are presumptively justifiable. However, the full texts of the instruments China cites contradict its claims that its actions in Xinjiang are justified by international law. The Strategy calls for all States to uphold “respect for human rights and fundamental freedoms,” to promote “human rights for all and rule of law,” and “improve intercultural understanding and ensure respect for all religions, religious values, beliefs or cultures.” It requires states to work to eradicate terrorism because of the threat it poses to human rights, self-determination, and fundamental freedoms. This indicates that the overall purpose of the Strategy is to preserve those basic rights. Further, the United Nations has recently released a review of the Strategy which stressed the importance of States’ duty to promote and preserve human rights in combatting terrorism. The Plan does note the need to reduce violent extremism, but its main emphasis is addressing the conditions that lead to that violence. In addition to the conditions that China noted in the Response, the Plan states that violent extremism “become[s] attractive where human rights are being violated, good governance is being ignored and aspirations are being crushed.” It claims that state discrimination based on ethnicity, religion, and language “can provide opportunities for exploitation by violent extremists.” China’s detention of Uyghurs in Xinjiang directly conflicts with the language and spirit of the Strategy and the Plan. The language in those instruments suggests that the United Nations’s goal in its counterterrorism efforts is the protection of human rights and basic freedoms above all else. The Assessment shows that China engaged in ethnic and religious discrimination, arbitrary detention, and torture. These acts not only constitute serious human rights violations, but, according to the Plan, contribute to an increase in global terrorism by creating an environment that breeds violent extremism. Implications of China’s International Law Arguments China’s legal argument selectively cites and misinterprets the United Nations’s goals in both the Strategy and the Plan and misrepresents the significance of its own ratification of human rights conventions. By making this bad faith argument under international law, China likely intends to legitimize its illegal activity and provide a legal justification for not complying with the Assessment’s recommendations. The international community must resist both of these efforts. International legal personalities seeking to uphold the legitimacy of international law should use all available mechanisms to hold China accountable for violating treaty obligations. Failure to act will signal to other bad actors that the international legal system is toothless in the face of direct challenges to its most important body and its foundational principles. Resisting and disavowing the actions of China and other bad actors, however, will bolster the authority of international law by reasserting the correct international legal standards related to these issues.
 Off. of the High Comm’r of Hum. Rts., OHCHR Assessment of Human Rights Concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China, ¶¶ 1–8 (Aug. 31, 2022) [hereinafter Assessment].  Id. ¶¶ 1, 44, 70–78.  Id. ¶ 148.  Info. Off. of the People’s Gov’t of Xinjian Uyghur Autonomous Region, Fight Against Terrorism and Extremism in Xinjiang: Truth and Facts, at 1–2, (Aug. 2022), transmitted by Note Verbale of the Permanent Mission of China to the U.N., No. GJ/56/2022 (Aug. 31, 2022) [hereinafter Response].  Id. at 2, 19, 56–59.  See id. at 17-19, 56–59.  See id. at 19–20.  See Vienna Convention on the Law of Treaties art. 2(1)(b), May 23, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969) [no US citation.] (defining ratification).  Assessment, supra note 1, ¶ 6; see also Karen Parker, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l & Compar. L. Rev. 411, 416, 441–42 (1989) (noting that the binding, preemptory nature of jus cogens norms does not permit derogation).  Response, supra note 4, at 19-20.  See Assessment, supra note 1, ¶ 143.  Response, supra note 4, at 19.  See id. at 18.  Id. at 19.  Id.  Id. at 18.  See G.A. Res. 60/288, The United Nations Global Counter-Terrorism Strategy (Sept. 20, 2006) [hereinafter Strategy].; U.N. Secretary-General, Plan of Action to Prevent Violent Extremism, U.N. Doc. A/70/674 (Dec. 24, 2015) [hereinafter Plan].  Strategy, supra note 17, at 1–2.  See id. at 2.  G.A. Res. 72/284, The United Nations Global Counter-Terrorism Strategy Review, at 5 (July 2, 2018) (“Stressing that a national criminal justice system based on respect for human rights and the rule of law, due process and fair trial guarantees is one of the best means for effectively countering terrorism and ensuring accountability”); see also Fionnuala Ní Aoláin (Special Rapporteur), Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism on the Human Rights Challenge of States of Emergency in the Context of Countering Terrorism, U.N. Doc. A/HRC/37/52 (Mar. 1, 2018).  See Plan, supra note 17, ¶¶ 1, 2, 6.  Id. ¶ 3.  Id. ¶ 28.  See Assessment, supra note 1, ¶¶ 143–47.  See Charter of the United Nations and Statute of the International Court of Justice art. 1(3), June 26, 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans, 1153 (stating that one of the U.N.’s purposes is “achiev[ing] international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all . . .”); see also John Tasioulas, Human Rights, Legitimacy, and International Law, 58 Am. J. Juris. 1, 11–12 (2013) (noting that human rights deficiencies can rob an institution of its legitimacy). The views expressed in this post represent the views of the post’s author only.