China turning a blind eye to its International Obligations

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China has seen an upsurge in religious persecutions against Uyghur Muslims, under the regime of Xi Jinping since he assumed the Presidency in 2013 as he aims in achieving the goal of creating a unified China. However, this goal entails eliminating the minorities. By default, the Uyghur Muslims are officially recognised as being one of the national minorities and are a target due to their practice of Islam which differs from the general population which is the Han Chinese making up 92%. The Uyghur Muslims are notably, from a specific region known as the Xinjiang Uygur Autonomous Region (XUAR) whereby they form half of that region’s population which amounts to around twelve million people.

The gravity of the situation lies in the fact that China is a permanent member of the United Nations Security Council and instead of standing as an exemplary Member State in terms of respecting its obligations towards its citizens and the international community as a whole, it has continuously denied the human rights violations and disregards its duty towards the fundamental rights of the Uyghur Muslims.

The rights of the Uyghur Muslims at a Universal Level

Under International Law, there are only a few instruments that afford protection to the Uyghur Muslims. The core UN Treaty concerned is the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which China is legally bound by given the fact that the treaty has been ratified. In other words, any violation(s) of the ICERD would amount to a breach of the jus cogens i.e., the peremptory norms which are non-derogable under international law.

Furthermore, other legal instruments that protect those minorities are namely, the International Covenant on Civil and Political Rights (ICCPR)and the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Declaration) which even though, are non-binding in nature, still have a high degree of relevance and importance as they form part of the International norms.

The International Treaties

The ICERD notably, legally binds States to comply with the Treaty in the observance of human rights and mentions that there should be no distinction as to religion.

Under Article 1 of the ICERD, the term “racial discrimination” encompasses “ethnic origin” and “descent”. Another mutual characteristic of the Uyghur Muslims, besides religion is that they are of Turkic descent. As such, the Uyghur Muslims, who are also officially recognized by China as an ethnic group, are protected from discrimination on those grounds.

Furthermore, Article 5 of the ICERD conveys a duty on China to not only prohibit racial discrimination but also to eliminate it. A further elaboration of this Article would entail that China should hold the rights of minorities to the same level as those of the Han Chinese i.e., they are viewed as equals. It specifically includes under civil rights, ‘the right to freedom of thought, conscience and religion’ under Article (5)(d)(vii). Therefore, allowing Uyghur Muslims the freedom to exercise Islam without facing any discrimination within the Chinese territory and jurisdiction.

The Norms

Furthermore, even though China has not ratified the ICCPR yet, that does not exempt it from not complying with this key human rights international treaty. By being a signatory, China has a duty to ensure it does not carry out any actions that defy the ICCPR. Therefore, it is responsible for guaranteeing the rights of the Uyghur Muslims under this treaty. As such, the main provision relating to the protection of Uyghur Muslims at a Universal level is found under Article 27 of the ICCPR which states that:

“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”

Article 27 thus confers an obligation on China to allow Uyghur Muslims to practice Islam. This right is distinguished from the general rights of the Han Chinese population as it is specific to the minority group. Additionally, China’s duty in complying with this article encompasses the protection of the social identity of this religious minority i.e., as religion is often the core guide for the way people behave in a society for instance, their lifestyle and way of being.

 The UN Declaration as a matter of fact was inspired by Article 27 of the ICCPR and it further details out the rights of minorities including the need for States to protect their fundamental human rights (Article 4). Additionally, it creates a framework for Uyghur Muslims to practice Islam without facing discrimination as righteously stated under Article 2. Furthermore, Article 5, demands that National policies and programmes take into consideration the ‘legitimate interests’ of national minorities. Thus, China has a duty to ensure that there are no laws or norms that conflict with the legitimate interests of those minorities.

Hence the Uyghur Muslims have an international framework in terms of protection of their rights at a Universal level that China has a responsibility to the International Community to conform with.

Are the rights of Uyghur Muslims recognised and protected under the Chinese Constitution?

The main concern under the International instruments above in the protection of minorities are the State’s observance of the fundamental human rights. As such, Article 18 of the Universal Declaration of Human Rights (UDHR), is the main Article concerning the freedom to practice religion. It notably allows for religions or beliefs to be practiced without any conditions imposed on communities or individuals.

The Chinese Constitution carries a similar provision, under Article 36 whereby it conveys that religion should not be forced upon any individuals by any entities including the State and that none of its citizens shall be discriminated against. However, Article 36 makes mention of the State only protecting ‘Normal religious activities’ with no supplementary definition of what constitutes ‘normal’. Therefore, the protection of freedom of religion is limited in scope as it is subjective.

Furthermore, the UDHR sets some limitations on the practise of religion under Article 29(2) for the general welfare and so as not to disrupt the public order. Article 36 of the Chinese Constitution reflects this by also including ‘public order’ and other restrictions so as not to interfere with the health or education in China which is rather ambiguous but on the outset is still reflective of the UDHR.

As to the general rights of minorities, Article 4 of the Chinese Constitution states that:

All ethnic groups of the Peoples Republic of China are equal. The state shall protect the lawful rights and interests of all ethnic          minorities and uphold and promote relations of equality, unity, mutual assistance and harmony among all ethnic groups. Discrimination against and oppression of any ethnic group are prohibited; any act that undermines the unity of ethnic groups or creates divisions among them is prohibited.”

An interpretation of this article would therefore mean that, as they are a recognised ethnic group, the State bears the legal responsibility to protect their rights and offer them the same level of treatment as they would to any other minorities. As such, they are constitutionally a protected group. Additionally, the ‘unity’ of the Uyghur Muslims is notably, Islam. Therefore, Article 4 gives them the right to freely practise Islam without being discriminated and oppressed.

Furthermore, when Article 4 is read in conjunction with Article 36, it is clear that the Chinese Constitution allows religion to be practised by ethnic groups in the entire State, the Uyghur Muslims are not limited to practising Islam within the XUAR.

Rights in the XUAR

In essence, the XUAR, is constitutionally delegated powers under Section 6 of the Constitution: Autonomous Organs of Ethnic Autonomous Areas. In a nutshell, the Autonomous system, allows for a self-government whereby it is given the power to fine-tune central directives, State laws, regulations, and policies to fit its local conditions.

The 1984 Regional Ethnic Autonomy Law (REAL) as a matter of fact, is conferred these powers constitutionally and Article 11 sets out the following in accordance with religious beliefs:

          Autonomous agencies in ethnic autonomous areas guarantee the freedom of religious belief to citizens of the various nationalities. No state organ, public organization or individual 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. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs shall not be subject to any foreign domination.”

Article 11’s wording mirrors that of Article 36 of the Chinese Constitution with the only difference being that it concentrates on the freedom of religious beliefs in the autonomous regions.

Therefore, by interpreting Article 11 of the REAL in combination with the self- governing feature of the autonomous region, Uyghur Muslims within the XUAR, are allowed to practice Islam in the realms of their culture, traditions, and Turkic descent without facing discrimination and interference by State or Non-State entities, subject to some reasonable restrictions of ensuring lordre public and the non-interference in China’s health and education.

Hence, the Chinese Constitution recognises and protects the rights of Uyghur Muslims in the practice of Islam and the Autonomous System, further enables not only for their rights to be tailored but also accord them the necessary protection with the incorporation of different nuances as to their ethnic background.

The National Laws that quash the protection of Uyghur Muslims

However, these rights are limited in scope to a theoretical framework and the Uyghur Muslims are faced with multiple local laws, policies and regulations purposefully enacted to deprive them of the freedom to practice Islam.

Sinicization

In 2017, the Regulations on Religious Affairs was enacted following the National Conference on religious work whereby Xi conveyed that the Regulation was created with the intent to ‘Sinicize’ religions. In essence, it is the process of unifying China by forcing minorities to conform with the Han Chinese culture fully, including their religion and customs. Furthermore, in reference to the policy of Sinicization he mentioned ‘providing active guidance to religions so that they can adapt themselves to socialist society’.

As such the existing domestic laws should be interpreted from this standpoint. For instance, Article 13 of the Criminal Code, defines a crime as ‘an act that endangers the sovereignty… of the State’, ‘… subverts the State power of the people’s democratic dictatorship’ and one which ‘… overthrows the socialist system’. Therefore, the underlying significance in regard to religion is that Islam is a threat to the National identity of the Atheist and Communist State. It challenges the Central government in maintaining State Sovereignty as Islam is more than just a religion, it is a mean to socially control individuals.

Xinjiang Uyghur Autonomous Region Regulation on De-extremification37 (De- extremification Laws)

Article 13’s interpretation is fully supported by the fact that it is applied in the context of de-extremification which is explicitly aimed at the Uyghur Muslims. Article 4 states that: ‘De-extremification shall persist in the basic directives of the party’s work on religion, persist in an orientation of making religion more Chinese and under law, and actively guide religions to become compatible with socialist society’.

Moreover, with the same intent, the Uyghur Muslims have also been introduced to new norms in the XUAR by the ‘Strike Hard Campaign Against Violent Terrorism’ which comprises of the Mass Surveillance system and the re-education camps.

In a nutshell, the Mass Surveillance involves a highly advanced technological system monitored by Han Chinese authorities whereby information is illegally gathered and is programmed in such a way that lawful practices are flagged as suspicious or threatening behaviors. The authorities, therefore, have full control over Uyghur Muslims.

Additionally, since 2017, over one million Uyghurs have been sent to the      re-education camps. The purpose behind those camps, is notably, to forcefully convert Uyghur Muslims into Han Chinese by any means necessary including a series of inhumane and torturous acts.

The Xinjiang Uyghur Autonomous Region Implementing Measures on the Counter-Terrorism Law (The Measures)

Furthermore, the Measures derive from China’s Counter-Terrorism Law 2015, which in its execution, is justified as a means to restore the public order by eliminating ‘terrorists’ in the XUAR.

Article 5 notably, states that: ‘Efforts to counter terrorism and extremism shall treat both the symptoms and causes and take comprehensive measures, combating in accordance with law and blending leniency and severity, respecting customs and protecting human rights’.

The ‘symptoms’ are detailed under Article 9 in the De-extremification Regulation as mentioned above, whereby Primary expressions of extremification include: covering the face, wearing gowns, and growing ‘irregular beards’. Additionally, generalizing the concept of Halal48 is banned under the same Article. Furthermore, Article 3, refers to ‘distorted religious teachings which is directed at Islamic teachings.

As such these norms are correspondingly, excessively disproportionate, The Regulation notably, draws no distinction between what constitutes terrorist activities and daily acceptable practices. Additionally, Article 5 of the Measures shows a complete disregard in the protection of human rights since the definition of a terrorist and a Muslim is one and the same. Religious persecution is thus justified as a measure taken in ‘anticipating the enemys moveas conveyed under Article 4 of the Measures51.

Therefore, those norms, are in clear violations of the ICERD since they discriminate Uyghur Muslims by stereotyping them as terrorists and criminalizing Islam to its very core whereby a Uyghur Muslim is strictly prohibited from conducting normal Islamic practices.

Furthermore, in conjunction with Article 5 of the UN Declaration mentioned above, these norms evidently overlook the ‘legitimate interests’ of the Uyghur Muslims. Lastly, the whole of Article 27 of the ICCPR in its application is extinguished, as there is a complete erasure of their social identity as practicing Muslims, Furthermore, their civil rights are violated as those civilians, by lawfully practicing their religion and abiding to all the norms of the XUAR are religiously persecuted.

Conclusion

Therefore, even though China’s constitution acknowledges the rights of the Uyghur Muslims and accords them protection both at a National level and in the XUAR, they are but fictitious and exist only in theory. The incessant aim of Xi’s regime in leading the Uyghur Muslims to extinction clearly demonstrates a breach in the rule of law. Since multiple National norms override their freedom to exercise Islam through immoral justifications of ensuring public order. It is thus evident that China shows an utter disregard to both the customary international norms and the ICERD. Thus, the delay in the ratification of the ICCPR is strategically based with the same intent of circumventing its international obligations and allowing Uyghur Muslims to be protected at a Universal level. Hence, the non-conformity, results in leaving Uyghur Muslims vulnerable and unable to practice religion without the fear of persecution.  

Samia Mallam-Hasham, Barrister-At-Law, Human Rights Advocate

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