The Uyghur Genocide and Remedial Secession: Legal Grounds for the Rebirth of East Turkistan?

The Chinese state has consistently upheld assimilative policies since the 19th century, when national unity and political integration arguably became the main drives of the Qing dynasty, as it sought to tame the lands of its ‘new frontiers’ in Central Asia. Nowadays, this momentum is embodied by the Chinese Communist Party (CCP), as it pursues a unitary Han-state ideology that poses severe challenges to the very existence of local identities within Chinese borders. In fact, CCP-led efforts towards the gradual extinction of non-Han minorities become more evident by the day.

The Uyghur people and other Turkic ethnic minorities historically rooted in the autonomous region of Xinjiang 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 ethnic 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 labor 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, possibly tantamount to genocide, 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 recognize such human rights abuses as genocide, as defined by the Convention on the Prevention and Punishment of the Crime of Genocide (1948).  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. Additionally, 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. Despite affirming 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.

The present article aims to provide a general outlook of the Uyghur reality, both from a humanitarian and an institutional approach while arguing that a legal entitlement to secession may operate in favor of the Uyghur people as a remedy of last resort grounded in international law.

An Empty 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 peripheral groups with peculiar historical and ethnic backgrounds. Since this composition represents a delicate balance between states, which often desire unabridged sovereignty and homogeneous populations, on the one hand; and peoples, that pursue internal self‑determination and sometimes independence, on the other hand, it is quite natural that both state actors and ethnic groups press for renegotiation of their institutional agreements from time to time.

Yet, in the Uyghur case, there are conspicuous differences in the degree to which the Chinese authorities have dishonored 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.

The autonomy system has proved to be a biased and easily manipulable mechanism under the control of the central government. This phenomenon, paired with growing evidence of genocide, 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 determine their political status, and the likelihood of genocide claims provide sturdy grounds for one to conclude that the existence of the Uyghur people has become categorically impossible under Chinese rule.

‘Remedial Secession’ Applied

Considering that such harsh life conditions unveil a thorough denial of internal self-determination, an erga omnes right enshrined in both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, 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 favor of peoples who have suffered gross and continuous violations of human rights.

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 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 maneuvers 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 the International Court of Justice during the Kosovo proceedings (eg, 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 humanisation of the international legal order. In a humanised 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 Cançado Trindade in his Separate Opinion on Kosovo’s Declaration of Independence (parts V and VI).

The Uyghurs, as a geographically rooted people, appear to fulfill 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 high threshold scrutiny, it seems appropriate to sustain that the Uyghurs do have a right to engage in unilateral secession maneuvers.

It is worth reminding that the Uyghurs previously achieved statehood on 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 an Uyghur national identity that remains fundamental for the unity of resistance endeavors to this day. Despite being long frustrated by the Sinicisation 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. Former detainees are blowing the whistle, facts are gradually coming to light, and pressure on China’s abusive policy is on the rise.

 

Víctor S. Mariottini de Oliveira is a Brazilian lawyer and an LL.M. candidate in International Law at the Graduate Institute for International and Development Studies, Geneva.

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