Uighur Crisis Highlights Flawed Structure of UN Security Council

Below is an article published by The Jurist, Photo Edgarwinkler / Pixabay

Alina Rizvi, a rising 3L at Vermont Law School and an Associate Editor for JURIST, discusses the need to reform the UN Security Council in light of the suffering of the Uighur People in China…

One crucial aspect of international law is failing the Uighurs and it is the structure of the United Nations Security Council (UNSC). The persecution of the Uighurs is just one example of a State-committed human rights abuse that led to little prevention or relief for victims because of the structure of the UNSC. The UNSC is an essential part of international law, but it needs reform.

History of the Uighurs and China’s Human Rights Abuses

Since around 2017, China’s government has detained at least 1 million Uighurs in internment camps in the northwest province of Xinjiang. According to satellite images, there are at least 85 camps in the province. Uighurs are an ethnic and religious minority in China native to Xinjiang, which used to be known as East Turkestan. Uighurs are Muslims, members of the Turkic people, and speak the Turkic language. China annexed East Turkestan and renamed it Xinjiang (“New Territory”) in 1884 following the end of a war. Xinjiang is home to other affected ethnic Muslim minorities such as the Kazaks, Kyrgyz, Tatars, Uzbeks, and Tajiks.

China’s government, ruled by the Communist Party of China (CCP), claims the camps are “re-education camps” to deliver “a curriculum that includes standard spoken and written Chinese, understanding of the law, vocational skills, and deradicalization.” The CCP claims that the camps are an effort to battle terrorism and enhance national security and point to attacks committed by Uighur militants in 2013 and 2014.

Reports indicate that Chinese authorities forcibly removed Uighurs from their homes and put them in arbitrary detention without criminal charges in internment camps. There are reports of torture, sexual harassment, and forced labor at the camps, in an effort to coerce Uighurs to denounce their culture and religion. In addition, Chinese authorities are imposing forced birth control on Uighur women, such as inserting IUDs, forced abortions, and sterilizations, which is a genocidal attempt to suppress the population. It is also reported that the CCP used software hidden in apps as well as websites to stalk and gather data on the Uighur population as early as 2013.

China’s Violations of International Human Rights Law

According to this mounting evidence, China is violating international human rights law. China has ratified several human rights treaties including the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). China’s ratification of these treaties means it is legally bound to their general purpose as well as their provisions, excluding any reservations. Moreover, China’s abuses against the Uighurs are rising to the level of genocide and crimes against humanity, both of which violate jus cogensJus cogens are peremptory norms under international law and no State can derogate from these norms. China is violating its obligations under international law with little avenues of accountability.

Limited Legal Remedies Are Available

Decisions of the International Criminal Court (ICC), as well as UNSC resolutions, are legally binding under international law. The ICC prosecutes 4 crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. In order for the ICC to bring charges of genocide, war crimes, and crimes against humanity against a State or a State national, that State must consent to the jurisdiction of the ICC. However, the ICC may exercise jurisdiction over these crimes if the crimes were referred to the ICC prosecutor by the UNSC pursuant to a resolution adopted under Chapter VII of the UN Charter.

There are two main avenues under international law that would hold China accountable for its crimes against the Uighurs but both avenues are blocked because of the structure of the UNSC. China has not consented to the jurisdiction of the ICC, but Chinese authorities can still be put on trial if the UNSC adopts a resolution and refers the resolution to the ICC prosecutor. A UNSC resolution should be adopted that halts the operation of the camps and that resolution should also be referred to the ICC prosecutor to prosecute the Chinese authorities involved. These pathways of legal accountability would be open if China was not a permanent member of the UNSC.

Recently, two Uighur groups have filed a complaint against Chinese officials at the ICC and urged the prosecutor to investigate genocide and crimes against humanity. The groups argue that since China pursued unlawful arrests in or deportation from Cambodia and Tajikistan, that the court has jurisdiction. Cambodia and Tajikistan are members of the ICC. In an interview with JURIST, Rodney Dixon, the lead lawyer on the case, believes jurisdiction “shouldn’t be a barrier at all.” In 2018, the ICC ruled it had jurisdiction on Myanmar’s criminal activity against the Rohingya because part of that activity occurred in Bangladesh, an ICC member state. Dixon mentioned that the 2018 ruling is in the “early stages of the ICC developing and setting the precedent, but this (Uighur case) would reinforce it.” The ICC has, so far, acknowledged receipt of the complaint.

Flawed Structure of the UNSC and Its Implications

Chapter V of the UN Charter created the UNSC. The UNSC has 15 members: 5 permanent members (“P5”) and 10 non-permanent members. The P5 includes China, France, the US, the UK, and Russia. The 10 non-permanent members are elected for a term of 2 years by the UN General Assembly. To pass a UNSC resolution, at least 9 members must vote in the affirmative including all permanent members. If even 1 permanent member vetoes a resolution, the resolution does not pass. Moreover, Taiwan, not China was one of the original members of the P5 from 1946 to 1971. In 1971, China raised the argument that it should represent the government of China at the UNSC, not Taiwan. The UN subsequently expelled Taiwan from the UNSC and replaced it with China. Taiwan is currently not a member of the UN because the UN does not recognize it as a sovereign state.

Permanent members’ veto power has become a mechanism to feed political and economic interests, rather than protect human rights. In addition, it is questionable whether the rotation of the 10 non-permanent members provides a proper global representation. The reason why the UNSC, compared to other organs of the UN, is important is because its resolutions are binding (for example, UN General Assembly resolutions are not binding). China has stopped all talks of drafting a resolution on the Uighurs, saying it is an “internal matter.” Even if a resolution was drafted, China would veto it. Therefore, getting international justice for the Uighurs poses a challenge. To be clear, China is not the only P5 member that protects its own interests. In the past, this is why the US has vetoed resolutions on the Israel-Palestine conflict and why Russia has vetoed resolutions on the Syrian war. The list can go on. While it is impossible to expect political and economic interests to be absent among inter-governmental relations, these interests should not play this big a role at an institution that was founded to promote human rights.

Reform of the UNSC Is Essential

The UNSC needs to be reformed and should not exist to serve the interests of the P5. It should serve the interests of the most vulnerable it intended to protect, such as the Uighurs. To reform the structure of the UNSC, the UN Charter needs to be amended. Article 108 provides the general rule to amend the charter; an amendment is adopted by a vote of 2/3 of the members of the General Assembly and has to include the vote of all permanent members of the UNSC. Thus, amending the UN Charter to re-structure the UNSC is difficult. However, recently, UN delegates have argued that the UNSC “must expand, adapt to current realties or risk losing legitimacy.” Inter-governmental negotiations on reforming the council have begun; the issues include enlarging the size of the council to include more representation, abolition or extension of veto power, and expansion of both permanent and non-permanent members. The most necessary reforms include abolishing the veto power and adding more permanent members to allow for greater representation. It is unclear how long these negotiations will go on, but it could be years.

In the meantime, the only international legal remedy available to the Uighurs is a hopeful yet uncertain pathway to the ICC. While the US has imposed sanctions on China and the overall international community has expressed concern, it will not be enough to stop the irreparable harm to the Uighurs. It is imperative that the UNSC is reformed and the negotiations to do so aren’t unnecessarily prolonged. It is also imperative that P5 members are willing to negotiate. Reform is vital not only to protect the Uighurs but to protect other vulnerable populations, and to fulfill the UN’s mission to protect international peace and security.

Alina Rizvi is a rising 3L at Vermont Law School and Associate Editor at JURIST, interested in international human rights law.