Ethnic Persecution, Sham Autonomy, and a Legal Antidote: The Case for Uyghur Remedial Secession

Ethnic Persecution, Sham Autonomy, and a Legal Antidote: The Case for Uyghur Remedial Secession

PUBLIC INTERNATIONAL LAW

Victor S. Mariottini de Oliveira, LL.M. candidate in International Law at the Graduate Institute for International and Development Studies, Geneva

Introduction

The Uyghur people and other Turkic ethnic minorities historically rooted in the autonomous region of Xinjiang (XUAR) have allegedly been the target of a policy leading to the imprisonment of over one million Muslims in secret concentration camps, in what can be regarded as the largest-scale detention of ethnical and religious minorities since the Holocaust. Additionally, Uyghurs are said to be the target of summary executions, religious practice prohibitions, political indoctrination, parent-child separations, and severe ill-treatment that includes slave-like labour in the camps, forced migrations, mass rape, sexual torture, sterilization of women, forced abortions and organ harvesting. Such gross and widespread violations of human rights have been adamantly denied by the CCP, despite an overwhelming and ever-growing body of evidence put together by international human rights organizations and specialized media.

Even though international responses to the Chinese misconduct in Xinjiang have been somewhat mixed, the United States took the lead in early 2021 and became the first country to publicly define such human rights abuses as genocide.  The Canadian House of Commons and the Dutch parliament promptly followed, each passing a non-binding motion to that end. In any event, the Chinese authorities decided to maintain a defensive and negationist posture towards international reactions. In fact, after investigating genocide claims using internet-available satellite footage and testimonies of former detainees, BBC World News was summarily banned from China in February 2021. Furthermore, the UN High Commissioner for Human Rights, Michelle Bachelet, has repeatedly expressed her desire to visit Xinjiang in order to evaluate the situation, but China steadfastly declined every single request. Notwithstanding China’s paradoxical insistence that the door to Xinjiang is “always open” for cooperation, the UN is not welcome to conduct any form of investigation on site, according to China’s UN delegate Jian Duan.

 A Failed Promise of Autonomy and a Humanitarian Tragedy

While several incidents can be linked to the overall state of political unrest in Xinjiang, the inefficiency of a legal framework purporting to offer “regional autonomy” for the Uyghurs, introduced in the 1950s, must be regarded as a key aspect of the conflict. All over the world, institutional arrangements have been devised by central governments to grant regional autonomy to peripherical groups with peculiar historical and ethnical backgrounds. Such an effort acknowledges the need for a balance to be stricken between the need for territorial integrity, on the one hand, and aspirations of local self-rule for minorities, on the other. Since this composition represents a delicate equilibrium between states, which often desire unabridged sovereignty and homogeneous populations; and peoples, that pursue internal self-determination and sometimes independence, it is quite natural that both state actors and ethnical groups press for renegotiation of their institutional agreements from time to time. Catalonia’s Statute of Autonomy (1979), for instance, was renegotiated and originated a new agreement in 2006The Scotland Act (1998) underwent significant amendments in 2004 and 2016; and Finland’s Act of Autonomy on the Åland Islands (1920) was updated to account for new political aspirations in 1951, 1991 and 1996.

Yet, in the Uyghur case, there are conspicuous differences in the degree to which the Chinese authorities have dishonoured their formal commitments compared to the amount of pressure towards self-rule put forward by the Uyghurs. After the attacks of September 11, the Chinese leaders’ incentives to enact moderate policies towards Uyghur Muslims vanished, as they became shielded by the global “war on terror” campaign that allowed China to embolden their responses to dissent. Not only did the Chinese diminish the already small amount of autonomy enjoyed by the Uyghurs, but also started to crack down on their very existence, by adopting an arguably genocidal approach to the problem.

Instead of resolving a longstanding political dispute between Uyghurs advocating independence and the Chinese government, the autonomy system has proved to be a biased and easily manipulated mechanism under the orders of the central government. This phenomenon, has spiked the Uyghur feeling of betrayal and distrust towards the Chinese state.  From the perspective of international human rights law, it is safe to state that the Uyghur people have long been unable to freely determined their political status, and the genocide claims provide sturdy grounds for one to conclude that the existence of the Uyghur people has become categorically impossible under Chinese rule.

A Legal Antidote: ‘Remedial Secession’ Applied

Considering that such harsh life conditions unveil a thorough denial of internal self-determination, an erga omnes right enshrined in both ICCPR and ICESCR, one might wonder whether the Uyghurs are entitled to any remedies that can adequately secure their continued existence in Xinjiang, a territory that is, after all, historically occupied by Uyghurs. This is precisely what the contended doctrine of remedial secession brings forth, by suggesting a last-resort entitlement to statehood operating in favour of peoples who have suffered gross and continuous violations of human rights.

When one thinks of separatist groups around the world that attempt to put their political aspirations into practice, the commonplace legal inquiry that often arises is: does this group have the right to break away from the state where it is located? Such an interrogation tends to provoke one’s instinctive denial, considering that territorial integrity occupies a privileged locus among the foundational principles of international law. Still, it is possible to reformulate the previous inquiry and make it more complex: does this group have the right to break away from its mother-state if the latter inflicts serious and repeated human rights violations upon the group in question? Such a situation triggers one’s morality standards, making the existence of a legal entitlement ever more puzzling.

Although it remains undisputed that respect for territorial integrity is a cornerstone of the contemporary international order, more than 30 new sovereign states have come to exist over the last three decades, many of which emerged from unilateral secession manoeuvres. As such, would it be safe to say that the principle of territorial integrity currently enjoys an absolute nature in international law? The so-called remedial secession doctrine provides an adamant negative answer to this question, as it seeks to establish a legitimate response to state-led oppression that can halt genocidal practices and preserve basic human rights directly connected to the physical existence of a people.

Such a legal entitlement to a conditioned unilateral secession is by no means undisputed under international law. However, it is buttressed by well-established scholars, and has been materially acknowledged during certain judicial proceedings. The UN General Assembly Resolution 2625 (XXV), considered by many the most authoritative compilation of contemporary international law principles, offers a harmonizing approach between territorial integrity and the right to self-determination, to which all peoples are entitled. According to Buchheit (1978), Cassese (1995), Raič (2002) and Crawford (2006), the Resolution acknowledges that territorial integrity is not an absolute principle, but rather a conditioned one, that must be respected only insofar as the rights corollary to the concept of self-determination are duly protected (i.e., freely expressed political will, governmental representation, non-discriminatory treatment, etc). This interpretation is derived from an a contrario reading of the so-called safeguard clause (Principle V) contained in the Resolution, later reiterated in the Vienna Declaration and Programme of Action (1993). Accordingly, secessionist manoeuvres would only be legally backed when the right to self-determination was grossly violated and could not be realized internally. Additionally, the remedial secession doctrine, albeit not particularly named in that manner, finds material compatibility with the opinions expressed in Katangese People’s Congress v. Zaire (paras. 5-6, ACHPR), Kevin Mgwanga Gunme et al v. Cameroon (paras. 163-200, ACHPR), Reference re Secession of Quebec (paras. 112-134) and was expressly accepted by multiple countries in their written submissions to ICJ during the Kosovo proceedings (e.g., Finland, Germany, Russia, Netherlands, Ireland, and others).

The hypothesis of a unilateral secession supported by international law must be contemplated against the backdrop of a conceptual transformation commonly referred to as the humanization of the international legal order. This notion refers to the conversion of international law from a state-centred system to a system coordinated around the fundamental needs and interests of human beings. Such a change of perspective affects key principles upon which the Westphalian order was built, especially regarding the notion of absolute state sovereignty over territory. In a humanized concert of nations, international law does not purport to confer automatic primacy of state interests over the fundamental rights of groups or individuals, which would certainly encourage power abuses and tyranny, as pointed out by Judge Can ç ado Trindade in his Separate Opinion on Kosovo’s Declaration of Independence (parts V and VI).

The law of self-determination of peoples, for example, is a clear and virtually unchallenged expression of this change in contemporary international law, since it ascribes a special legal meaning to freely manifested political will towards territorial reorganization. In fact, external self-determination admits group interests to be implemented through different means, such as consensual secession, merger, or union of States. Therefore, one must assess whether the right of self-determination can, in some way, be manifested as a right to remedial (and thus, unilateral) secession.

The Uyghurs, as a geographically rooted people, appear to fulfil the three-dimensional requirement list outlined by remedial secession partisans, as they have (i) persistently been denied the right to internal self-determination; (ii) have suffered discriminatory treatments amounting to gross violations of fundamental human rights; and (iii) have resorted to all reasonable methods of settling the self-rule issue internally, particularly by accepting the institutional arrangements of regional autonomy, whose terms were violated by China. Therefore, after being submitted to such a high threshold scrutiny, it seems appropriate to sustain that the Uyghurs do have a right to engage in unilateral secession manoeuvres.

It is worth reminding that the Uyghurs previously achieved statehood in two brief occasions: from 1931 to 1934, under the “Turkish-Islamic Republic of Eastern Turkistan” and again from 1944 to 1949, under the so-called “East Turkistan Republic”. These experiences of statehood, albeit short and apparently scattered in time, accelerated the consolidation of a Uyghur national identity that remains fundamental for the unity of resistance endeavours to this day. As a matter of fact, they officially introduced core elements around which the Uyghur community is organized — a flag, a language, values, and a common religion. Despite being long frustrated by the Sinicization campaign, the Uyghur nation is quite active: several initiatives have been developed to sustain its public awareness campaign and offer a chance for Uyghurs to express their political will freely. Noteworthy examples of these fora are the World Uyghur Congress, headquartered in Munich, and the East Turkistan Government-in-Exile, which has held its civic activities in the heart of Washington D.C. since 2004.

Final remarks

Given a combination of economic, diplomatic, and repressive measures adopted by the CCP, the Uyghur movement undeniably faces enormous challenges. Uyghur separatists are relatively small in numbers, loosely linked and poorly equipped compared to the Chinese forces, which successfully impair most public demonstrations carried out in Xinjiang. At the same time, however, international campaigns for Uyghur rights have become increasingly vocal and well organized worldwide, and the identification of legal reasons to pursue independence may bring about an entirely new humanitarian momentum to their territorial claim. The Uyghur identity survives among the diasporic community (about 650,000 individuals) spread across Central Asia, Europe, and America, where fewer constraints on speech are to be found. Former detainees are blowing the whistle in these places, facts are gradually coming to light, and pressure on China’s abusive policy is on the rise.

China’s interest in retaining Xinjiang within its territorial framework is strategic, considering that the region boasts a largely unexploited natural resource potential, nuclear facilities, and provides a vital geographical link to India, Pakistan, and the Central Asian Republics. As such, one should never expect this region to be given up easily. Additionally, despite some sporadic agitation, the political project aimed at reviving East Turkistan is a clearly fragile and underground effort at this time, but it may become more robust if new allies and sympathizers engage with it internationally. The world community cannot turn a blind eye to a movement that seeks to reassert basic political, individual, and religious rights — especially if such a movement remains peaceful. China needs to understand this and put forward in good faith political changes that are truly accommodative of its national minorities. Otherwise, the Uyghur political opposition will continue to resound on a global level, and, with the right backing, it may eventually be able to resurrect a national project thought to belong in history books.