L. Ali Khan
In 2019, a U.N. report analyzed China’s Counter-Terrorism Law as applied to the residents of Xinjiang. The report asserted that the reeducation facilities, also known as “vocational training centers,” are effectively detention camps because of their coercive nature. The Chinese authorities have forced between 1 million to 1.5 million Uighurs into these facilities. There are allegations of “deaths in custody, physical and psychological abuse and torture, and lack of access to medical care.” In several cases, the detainees are “denied free contact with their families” and cannot “inform them of their location.”
To contest the global criticism of its policies inside and outside the country, China appeals to sovereignty. At various international organizations, including the U.N. Security Council and the U.N. Human Rights Council, China summons sovereignty and the related concepts of “territorial integrity,” “political independence,” “sovereign equality,” and non-interference “in matters which are essentially within the domestic jurisdiction of any state.” These are indeed the fundamental principles of the 1945 U.N. Charter, a global treaty now ratified by 193 nations.
As a matter of legal rhetoric, China is the chief proponent of sovereignty in international affairs. However, China is most vociferous about non-interference when the human rights organizations and U.N. special rapporteurs point out systematic human rights violations of ethnic and religious minorities in Xinjiang and Hong Kong. In addition to contesting the “truth” of allegations, China makes the legal argument that the world has no lawful basis to investigate what China does within its sovereign borders.
Unfortunately, China’s arguments for sovereignty are anachronistic and no longer consistent with the post-1945 development of international law that has effectively restricted, though not eliminated, the reach of “domestic jurisdiction” or what might be called internal sovereignty.
Internal Sovereignty
In The Extinction of Nation-States (1996), I break down a nation-state’s sovereignty into two categories: external sovereignty and internal sovereignty. External sovereignty refers to the state’s autonomous options to trade, recognize new nations and governments, establish diplomatic relations, join regional and global treaties, control immigration, provide and receive international assistance, and various other affairs involving other states. Each nation-state exercises external sovereignty in the form of foreign policy.
Internal sovereignty refers to the nation-state’s internal matters. A state is internally sovereign in choosing a political system, government, federalism, capitalism, socialism, secularism, religionism, official languages, currency, or various other matters closely tied to the nation’s history, culture, geography, ethos, and legal tradition. For example, some countries are democratic while others are not; some are capitalist while others are not.
The internal diversity of nations preserves the pluralism of the human species. Colonialism, imperialism, and communism wished to standardize the species by imposing foreign values on indigenous populations in the name of enlightenment, progress, and economic dialectics. Religious conversion through force and deceit has been the most regrettable dimension of “superior” faiths denigrating local creeds and cultures. Western nations have been the most self-assured in exporting their values as universal values.
By no means is internal sovereignty a useless construct. Internal sovereignty is a legal shield against neo-colonialism and predatory foreign adventurism that continue to assault defenseless populations.
However, internal sovereignty is not a license for a nation-state to do whatever it pleases within its borders. Internal sovereignty under modern international law furnishes no legal excuse to terminate any ethnic groups living within the nation-state, relocate them into detention camps, or degrade them into subordination. Since the launching of the U.N. Charter, international law has transformed to preempt the abuses of internal sovereignty.
Preemption
Historically, much like any area of law, international law has evolved and continues to do so. With evolution, what is once protected under internal sovereignty turns into a global prohibition. If a rule of international law is well-established contrary to domestic jurisdiction, it preempts any contrary claims to internal sovereignty.
Consider slavery.
For centuries, Roman law and Islamic law, two widespread legal traditions, permitted slavery. Under Roman law, slaves were property, and the master had nearly unlimited power over slaves. By contrast, Islamic law softened the treatment of slaves and incentivized their manumission. Yet, slavery was part of the Muslim empires, including the Ottomans.
Nations exercised internal sovereignty to both allow and prohibit slavery. In 1444, Portugal earned the dubious distinction of being the first European nation to sell African slaves publicly. Spain followed suit. However, in 1811, Spain abolished slavery at home and in its colonies. Cuba, exercising its internal sovereignty, rejected the Spanish ban and continued to trade slaves. The United States practiced slavery but later fought a civil war to abolish slavery, first through a presidential proclamation in 1862 and last through a constitutional amendment in 1865.
The 1926 Slavery Convention drafted under the League of Nations promised to “prevent and suppress” the slave trade. However, it did not ban slavery right away but pledged to bring its complete abolition “as soon as possible.” Finally, in 1948, the Universal Declaration of Human Rights stated in categorical terms: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” To further reinforce the slavery prohibition, the 1998 Rome Statute, which establishes the International Criminal Court, makes “enslavement” a crime against humanity.
Historically, whether a country would practice slavery was an attribute of internal sovereignty. However, under the modern international law on slavery, no nation-state may lawfully practice slavery as a manifestation of internal sovereignty. And if a nation does allow slavery within its domestic jurisdiction, it violates international law.
Like slavery, many other matters that the nation-states might have previously swept under internal sovereignty are no longer permissible. Under the 21st century international law, no nation-state may rely on internal sovereignty to systematically violate the fundamental rights of ethnic, religious, and racial minorities or majorities.
The law of human rights, developing since the signing of the U.N. Charter, has matured into a formidable part of international law. The International Bill of Rights– consisting of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights—places normative constraints on the exercise of internal sovereignty. Furthermore, 18 human rights treaties, including the Rights of the Child and the Elimination of All Forms of Discrimination against Women, preempt the conventional argument that nations can do whatever they please within their domestic jurisdiction.
In other words, a state may exercise internal sovereignty consistent with its obligations under the international law of human rights. However, if an act of internal sovereignty is incompatible with human rights obligations, the act must yield to international commitments. This preemption is a founding principle of international law and the law of human rights.
Whenever a nation signs a human rights treaty, it surrenders a portion of its internal sovereignty to international law to the effect that it would not violate the rights stated in the treaty. Since signing a human rights treaty is a voluntary act, the signatory state willingly surrenders its internal sovereignty to uphold the treaty obligations.
A state may willingly forfeit a piece of its internal sovereignty for various reasons, including its belief in the sanctity of human rights. It may do so under international economic or diplomatic pressure or as a precondition of joining a regional entity, such as the African Union or the European Union. Top nations, such as China, come under extraordinary pressure to ratify human rights treaties and enforce them in good faith.
Nations barter away pieces of internal sovereignty to participate in the international system, just as players give away part of their autonomy to play sports. A willful player breaching the game’s rules is fouled and thrown out of the game, sometimes banned for life. Unfortunately, international law is still not strong enough to punish powerful nations that violate international obligations. Yet, the argument for internal sovereignty rarely protects a rogue nation.
China’s Claims
Suppose for the sake of argument that China is indeed completely internally sovereign. Under its absolute internal sovereignty, China may opt to slaughter the Xinjiang residents of Turkic origin practicing the Islamic faith. China need not defend its policies in public forums and is not accountable to any international organization, such as the Human Rights Council. However, this definitive version of internal sovereignty would be incompatible with international obligations that China has voluntarily undertaken.
First, China has willingly signed the U.N. Charter and is a veto-holding member of the U.N. Security Council. In addition to protecting sovereign equality, the Charter requires member states “to achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” Under this Charter obligation, China can no longer arbitrarily refuse international cooperation in assuring the world that China is not violating the rights and freedoms of the Xinjiang citizens.
Second, China has willingly signed and ratified (1983) the Convention on the Prevention and Punishment of the Crime of Genocide. In the absence of signing this treaty, China could have invoked absolute internal sovereignty “to destroy, in whole or in part,” a Turkic or Tibetan ethnic group or forcibly convert Muslim or Buddhist children into another belief system, acts that the Genocide Convention prohibits. By signing the treaty, China has surrendered its internal sovereignty to commit genocide within its borders (or elsewhere). Accordingly, China is accountable to the global community for assuaging any fears that China is “deliberately inflicting on the group (Uighurs) conditions of life calculated to bring about its physical destruction in whole or in part.”
Third, China has willingly signed and ratified (2001) the Covenant on Economic, Social, and Cultural Rights. Article 10 of the Covenant obligates China to protect the Uighur families, giving special protection to mothers and “children and young persons without any discrimination for reasons of parentage or other conditions.” Under this obligation, China cannot invoke internal sovereignty to separate Uighur children and young persons from their mothers or break up the Uighur families for achieving national cohesion.
Fourth, China has willingly signed and ratified (1988) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 2 states: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Accordingly, by signing this treaty, China has surrendered its internal sovereignty to inflict torture or cruel treatment on any individual, much less an entire ethnic population. China’s Anti-Terrorism Law is valid only if it is compatible with the Torture Convention.
Unfortunately, China has signed but not yet ratified the Covenant on Civil and Political Rights, though Hong Kong, under British control, incorporated the Covenant’s provisions in its Basic Law. A state is obligated to uphold the object and purpose of a treaty it signs even before ratification. Thus, China has surrendered, though not wholly, its internal sovereignty concerning this Covenant.
The object and purpose of the Civil and Political Rights Covenant are to protect many fundamental rights of the individuals, including the right to human dignity, freedom of religion, and the right to liberty and security of person. Therefore, China cannot hide behind internal sovereignty to ignore human rights organizations’ credible allegations that the Uighurs are facing personal degradation, their women are physically assaulted, and that law enforcement agencies arbitrarily abduct or disappear Uighur men.
Finally, China makes a massive effort every three years to regain its seat in the Human Rights Council, a U.N. body that monitors human rights around the globe. The U.N. General Assembly elects 47 nations to run the Human Rights Council. Even though most global powers, such as China, U.S., Russia, have sufficient clout among countries to get a majority of votes in the General Assembly, the secret ballot complicates the voting outcomes. In 2016, for example, the electorate booted out the U.S. from the Council.
In theory, modeled after the fox guarding the chickens, nations that engage in gross human rights violations should not be elected to the Council. However, the electoral reality at the U.N. is far more pragmatic as countries with geopolitical and economic power, regardless of human rights records, can “buy” votes from weaker nations. Because of its economic weight, China has been on the Council since its founding in 2006, except for 2013.
The aspiration to seek membership of the Human Rights Council is incompatible with the notion of internal sovereignty. By seeking membership, China recognizes the Council’s authority to pierce the veil of internal sovereignty and hold nations accountable for human rights violations. Western governments, however, accuse China that it seeks the Council’s membership to subvert it from within and silence the critics.
Clan Fights
Unfortunately, the Human Rights Council is the Coliseum for the nations to fight clan wars over human rights. The Western clan gangs up on China, Russia, Iran, and other disfavored countries. However, the same Western clan protects Israeli human rights abuses and genocidal warfare in occupied Palestine. It does not even occur to the Western nations to condemn the U.S. for committing war crimes worldwide and crimes against humanity concerning African Americans.
In 2018, President Trump withdrew the U.S. from the Human Rights Council, asserting that the Council is “a hypocritical and self-serving organization that makes a mockery of human rights.” In addition, the Trump administration pointed out that the Council is biased against Israel but does nothing to condemn China.
Regrettably, the U.S. does not come to the Council with clean hands. For decades, the U.S. has been a headstrong member of the international community, engaged in invasions, bombardments of civilian populations, drone attacks, imposing economic sanctions that kill children. The U.S. also undermines international law by obstructing the U.N. Security Council resolutions that are otherwise unanimously approved.
Ironically, learning the art of war from the U.S., China is adopting a similar willful behavior. To wrestle with the Western tribe, China is forming a pro-China clan of nations to protect itself against allegations of human rights violations and questionable policies in Xinjiang, Tibet, Hong Kong, and elsewhere. Like the U.S., China deploys investments, financial incentives, loans, and even economic threats to grow a following among African, Asian, and South American nations.
In March 2021, at the 46th session of the Human Rights Council, Cuba, a current member of the Council, made a pro-China exculpatory statement on behalf of 64 countries. The joint statement relies on the notion of internal sovereignty, arguing that “Xinjiang is an inseparable part of China,” urging the Council “to stop interfering in China’s internal affairs and refrain from making unfounded allegations against China out of political motivations.”
The pro-China joint statement does not make sense in the realm of international law. It is one thing to dispute facts. It is quite another to argue for internal sovereignty. The pro-China clan may offer evidence to refute the allegations that China is engaging in gross violations of the rights of the Uighur families. However, the pro-China clan cannot lawfully plead the notion of internal sovereignty to brush aside credible evidence that China is committing torture, family separations, or indefinite detentions in Xinjiang or elsewhere.
Conclusion
The notion of absolute internal sovereignty is no longer available under international law. Nations, including China, may lawfully rely on internal sovereignty to choose a form of government, economic system, currency, official language, and numerous other features arising from a nation’s history, culture, ideology, and traditions. However, China cannot lawfully invoke internal sovereignty to engage in gross violations of human rights in Xinjiang or elsewhere within its territory. China, holding a veto in the U.N. Security Council and a repeat member of the Human Rights Council, is under a legal obligation to allow the international press, human rights organizations, and U.N. special rapporteurs to visit Xinjiang. In addition, China must furnish credible evidence to demonstrate that the Uighurs are not the targets of degradation in violation of the Genocide Convention, the Torture Convention, International Covenants, and customary international law of human rights that restrict China from pleading internal sovereignty.
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