China and Inter-State Communications under Article 11 of the International Convention on the Elimination of Racial Discrimination

Dr David Keane

[Dr Keane’s recent article in Human Rights Law Review discussing ICERD and its monitoring mechanisms, including inter-state communications, may be read here]

 

In the Xinjiang province in China there is evidence, including geospatial and satellite analysis, of an ‘intense and unparalleled carceral regime’ involving the arbitrary detention of Uyghur and other Turkic Muslims. In July 2019, the situation was condemned in the UN Human Rights Council in a joint letter by 22 states (including Ireland). In June 2020, UN independent experts called for decisive measures to protect fundamental freedoms in China. On 19 January 2021, US Secretary of State Mike Pompeo determined that China has committed ‘genocide and crimes against humanity’ in the region, involving a ‘systematic attempt to destroy Uighurs by the Chinese party-state’. Biden’s nominee for secretary of state, Antony Blinken, told the Senate Foreign Relations Committee he agreed with the genocide determination. 

The issue is being considered by the International Criminal Court (ICC), which has asked for more evidence before it will open an investigation. China is not a state party to the Rome Statute of the ICC, but the court may exercise jurisdiction over international crimes when part of the criminal conduct takes place on the territory of a state that is a signatory to the ICC, such as Tajikistan, where Uighurs have been forced back into China. There is a precedent for this in the investigation of international crimes against the Rohingya in Bangladesh, which is a state party to the Rome Statute, involving Myanmar, which is not. The Rohingya issue is also being pursued before the International Court of Justice (ICJ) in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). China, while a party to the Genocide Convention, has a reservation that it ‘does not consider itself bound by article IX of the said Convention’, meaning the ICJ does not have jurisdiction to determine a dispute under this treaty as it does in relation to Myanmar. Calls for ICJ intervention on Xinjiang have been restricted to the potential for an advisory opinion.

Palestine offers another template. It is pursuing a multi-pronged international adjudication strategy of individual and state responsibility, via a preliminary investigation before the ICC; a contentious case before the ICJ in Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America); and an inter-state communication under Article 11 of the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD) (Palestine v Israel). China acceded to ICERD on 29 December 1981. Article 5 ICERD protects the civil and political rights of Convention groups, including the Uighurs, all the more important given China has not ratified the International Covenant on Civil and Political Rights (ICCPR). The 2019 joint letter to the Human Rights Council recognised the centrality of ICERD as a source of international human rights obligations in China, recalling the ‘concluding observations of the UN Committee on the Elimination of Racial Discrimination (CERD) in its review of China, which expressed concern about disturbing reports of large-scale arbitrary detentions of Uighurs, and other Muslim and minority communities’. 

Importantly, ICERD provides two mechanisms for inter-state proceedings. Firstly, Article 22 provides a mechanism for inter-state disputes before the ICJ. China, as it did under the Genocide Convention, has entered a reservation to this clause: ‘The People’s Republic of China has reservations on the provisions of article 22 of the Convention and will not be bound by it.’ Secondly, Articles 11-13 provide a mechanism for inter-state communications before CERD. Articles 11-13 apply to all states parties upon ratification, representing the only compulsory inter-state communications mechanism in the UN human rights treaties. In its jurisdiction decision in Palestine v Israel, CERD described Article 11 as ‘a unique instrument to settle inter-State disputes, set up for the common good of all States parties’. It is ‘automatic’, and states parties ‘do not need to give their prior agreement or consent’ for the Committee to be seised. All other individual and inter-state communications mechanisms in UN human rights treaties (including the individual communications mechanism in Article 14 ICERD) are optional, and China has not opted in to any of them. This means no individual can bring China before any international human rights body, and a state can only do so under Article 11 ICERD. 

The availability of the inter-state communications mechanism under Article 11 ICERD has yet to be raised in the context of potential international responses to alleged rights violations by China. An obvious difficulty is that it requires a state party to ICERD to bring such a communication. As the old fable goes – who would bell the cat? Article 11 provides no limits in terms of standing and no “victim” requirement, reading only that a state party ‘which considers that another state party is not giving effect to the provisions of the Convention’, may bring an inter-state communication. While inter-state disputes generally involve an aggrieved state party, there are examples of states not directly affected that have brought such cases as seen in The Gambia v Myanmar, where the Gambia has no link to the alleged genocide. Any of the 182 states parties to ICERD could initiate an inter-state communication. Some potential candidates are: 

  1. states parties directly affected by the policies in Xinjiang with nationals who have been incarcerated, such as Kazakhstan or Turkey
  2. one of the 22 states that signed the 2019 letter with an expressed interest in protecting the rights of the Uighurs; 
  3. a state member of a regional body such as the Organisation of Islamic Conference, that may effectively act as a representative with its support (as is the situation with the Gambia); 
  4. a powerful international actor such as the United States; 
  5. any other state that is moved by the gravity of the situation to initiate such a communication.

While it may seem inevitable that China would react adversely to an Article 11 inter-state communication, the mechanism itself does not call for this. China has long held out that it is being falsely accused by detractors and that the measures in Xinjiang are proportionate. Articles 12-13 ICERD offer a process of conciliation separate from CERD via an ad hoc Conciliation Commission, and as such, are not designed to condemn. It is not a judicial mechanism and offers recommendations aimed at an ‘amicable solution’. Such a solution could include, for example, allowing UN independent experts to access the region. There is little reason for China to view an inter-state communication under Article 11 ICERD with hostility. Having that said, activating the mechanism would unquestionably signal the international community’s heightened alarm. The Human Rights Committee, in its General Comment 31, has encouraged states parties to consider such actions:

“… the Committee commends to States Parties the view that violations of Covenant rights by any State Party deserve their attention. To draw attention to possible breaches of Covenant obligations by other States Parties and to call on them to comply with their Covenant obligations should, far from being regarded as an unfriendly act, be considered as a reflection of legitimate community interest.

Likewise, in its decision in Palestine v Israel, CERD underlined the role of Articles 11-13 in the ‘collective enforcement’ of the treaty. While inter-state cases remain comparatively rare in international human rights law, we have seen in recent years a renewed interest in the mechanism. The gravity of the alleged situation in Xinjiang requires that all potential international remedies are considered, and there are very few options.


Dr David Keane is Assistant Professor in Law at the School of Law and Government, DCU. His research is in international human rights law, with a particular focus on the International Convention on the Elimination of Racial Discrimination (ICERD), caste-based discrimination, minority rights and related aspects of the UN human rights system.

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