BAR HUMAN RIGHTS COMMITTEE OF ENGLAND & WALES

WRITTEN SUBMISSIONS TO THE FOREIGN AFFAIRS COMMITTEE

XINJIANG DETENTION CAMPS[1] (XIN0083)

A. Who we are

1. The Bar Human Rights Committee (BHRC) is the international human rights arm of the Bar of England and Wales. It is an independent body, distinct from the Bar Council of England and Wales, dedicated to promoting principles of justice and respect for fundamental human rights through the rule of law. Membership of the BHRC is comprised of barristers practicing at the Bar of England and Wales, legal academics and law students. BHRC’s Executive Committee members and general members offer their services pro bono, alongside their independent legal practices, teaching commitments and/or legal studies. BHRC employs two members of staff.

2. BHRC aims to:
• uphold the rule of law and internationally recognised human rights norms and standards;
• support and protect practicing lawyers, judges and human rights defenders who are threatened or oppressed in their work;
• further interest in and knowledge of human rights and the laws relating to human rights, both within and outside the legal profession; and
• support and co-operate with other organisations and individuals working for the promotion and protection of human rights.

B. Summary

3. In July 2020, BHRC produced a high-level Briefing Paper on ‘Responsibility of States under International Law to Uyghurs and other Turkic Muslims in Xinjiang, China’. In this submission, we focus on specific aspects of international law which we hope can be of benefit to the Foreign Affairs Committee (FAC) in its deliberations on recommendations, and we focus on legislative and policy changes which can be made domestically to support enhanced protection against the credible and widespread allegations of human rights abuses in Xinjiang. We consider:                           

C. The treatment of Uyghur and Turkic Muslims;

D. The United Kingdom’s role in atrocity prevention;

E. The Human Rights Council;

F. Mechanisms to discourage private sector companies from contributing to human rights abuses

G. UK influence on countries other than China who are complicit in the persecution of Uyghurs

H. Other mechanisms

C. The treatment of Uyghur and Turkic Muslims

4. The severe mistreatment of Uyghurs and other Turkic Muslims by the Chinese State, that includes their internment in so-called ‘voluntary vocational skills training centres’,[2] has been widely reported.[3] These allegations have emanated from a number of diverse and credible sources. If proven, the allegations would constitute very serious violations of international human rights, international criminal law, and peremptory norms of international law, that include the prohibitions of genocide, torture, and racial discrimination. These violations are alleged to be continuing. The allegations must be taken seriously by the international community, and pursued using all appropriate means available, including by reference to international law and the international legal framework. 

5. Alleged violations include the mass surveillance and arbitrary detention of over 1 million Uyghurs and other Turkic Muslims,[4] torture and inhuman treatment of detainees,[5] the forced separation of children from their parents,[6] the denial of the right to practice their religion or speak their language,[7] forced sterilisation,[8] forced labour,[9] forced organ harvesting,[10] and unlawful killings in detention and other extra-judicial killings.[11]

6. BHRC has outlined the bases for these concerns, the availability of legal remedies, and the responsibility of all States under international law to ensure China respects and ensures respect for the rights of Uyghurs and other Turkic Muslims in its July 2020 Briefing Paper, which is attached in an Appendix to this submission.[12]

7. At the time of writing, there continue to be new and substantial sources of information which point to policies of widespread oppression and detention, including the leaking of a prisoner list which appears to demonstrate China’s use of AI and technology to systematically discriminate against Uyghurs and other Turkic Muslims.[13]

D. The United Kingdom’s role in atrocity prevention

8. The treatment of Uyghurs and other Turkish Muslim people should be matter of grave concern to the international community as a whole, and the United Kingdom (UK) in particular. The notion that prohibitions of racial discrimination, genocide, torture, and slavery are jus cogens in character, and the obligations to prevent violations of those prohibitions arising thereof, and as set out in Convention on the Elimination of Racial Discrimination in All its Forms (CERD),[14] Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention),[15] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (UNCAT),[16] and the Slavery Convention 1926 (read together with relevant customary international law), are erga omnes (owed to the world at large) is non-controversial.[17] All States, including China, have unequivocally accepted that slavery and racial discrimination, torture and genocide are prohibited: they have committed to not carry out those proscribed acts, they have committed to their prevention; and they have committed to punishment of perpetrators where they have found individuals to have committed those proscribed acts.[18] There can be no derogation from those commitments. As such, all States have a right and a duty to invoke the responsibility of China for any failure to uphold its obligations under the aforementioned conventions and/ or customary international law, and any resulting violations of jus cogens norms and erga omnes (partes) obligations.[19]

9. The legal remedies available to individual victims of these violations and to States are limited. China does not accept, where available, any inquiry procedures into serious and systematic abuses of human rights under most of the relevant international treaties to which it is a party, namely the Genocide Convention; UNCAT;  Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);[20] Convention on the Rights of the Child (CRC);[21] and the Slavery Convention.[22] This precludes individuals and States from seeking to enforce China’s obligations under most of these treaties in a formal court of law or an international, independent, impartial forum.

10. There are no such legal obstacles with respect to CERD. China has not made a reservation to Article 11 CERD according to which States Parties accept the competence of the Committee on the Elimination of Racial Discrimination to examine inter-State disputes regarding the application of the Convention. Much of the alleged treatment suffered by the Uyghur people violates the rights guaranteed by CERD.[23] The Committee on the Elimination of Racial Discrimination provides a means by which State Parties to CERD, of which the United Kingdom is one, can, and should, seek to invoke China’s international responsibility with respect to its treatment of Uyghurs. Moreover, any clear finding of such discrimination may prove to be an effective tool in international advocacy, particularly in Muslim-majority States where public criticism of China has been muted.

11. Moreover, the lack of an enforcement mechanism under a particular treaty does not detract from China’s responsibility for any failure to comply with its international obligations under that treaty, and the duty of other States ensure that jus cogens or ‘peremptory norms’ of general international law are upheld and/or that obligations owed to the international community as a whole (usually arising from peremptory norms) are enforced. The very nature of the rights and abuses involved and in order for these rights to have any meaning at all – not least for victims and survivors – States must act in concert to ensure rights accepted by China are interpreted, applied and fulfilled in good faith.

E. The Human Rights Council

12. The UK has been re-elected to serve a further 3-year term as a member of the United Nations Human Rights Council. On the announcement of the UK’s re-election to the Human Rights Council, the Minister of State Lord Ahmad said ‘We will continue to hold to account all those responsible for the worst violations and abuses.’[24]

13. The Human Rights Council provides an important forum in which the UK can express its concerns directly to China, and also to build consensus amongst other Member States to support the holding of a Special Session of the Human Rights Council on the situation in China. The UK’s expression of ‘grave concerns about the compelling evidence of systematic human rights violations in Xinjiang, recent developments in Hong Kong, and continuing restrictions on media freedom in China’ in the Human Rights Council is welcomed.[25] The UK should continue to call upon China to:

1. immediately cease and desist practices that violate its international obligations and responsibilities;

2. to make effective in domestic law the provisions of the relevant treaties in order to honour obligations to respect, protect and fulfil the obligations and responsibilities thereof; and

3. investigate, and to permit, support, and strengthen independent and impartial investigation by others, all allegations of genocide, murder, extermination, torture and other forms of ill-treatment, and enslavement and prosecute alleged offenders;

4. and to provide remedy to the victims of such violations.

14. However, effectively holding those responsible to account for the worst violations and abuses of human rights entails concerted action beyond releasing statements of concern and debate. In order to maximise the UK Government’s impact on atrocity prevention, the UK Government needs to take a more proactive approach to atrocity prevention, using all available diplomatic and legal measures at its disposal. Such measures include supporting the establishment of a formal independent investigative mechanism and assisting such a mechanism to carry out investigations to determine China’s responsibility for violation of any of its international obligations with respect to its treatment of Uyghurs.

15. The investigation and prosecution of alleged crimes is an important means of future atrocity prevention and of providing some form of reparation to victims. At the international level, such mechanisms may include a Special Envoy or other investigative mechanism appointed by the Secretary General of the United Nations, or Special Rapporteur on the human rights situation in China, appointed as part of the Human Rights Council’s Special Procedure Mechanism.

F. Mechanisms to discourage private sector companies from contributing to human rights abuses

16. Despite some advances towards securing some forms of corporate accountability in the UK, the mechanisms – both through jurisprudence[26] and enforcement - remain weak and provide limited and uncertain remedies for victims.[27] Although the Home Office has announced an intention to strengthen transparency provisions in the Modern Slavery Act 2015, this body of piecemeal provision does not go far enough.

17. One powerful step forward would be through the introduction of a law on due diligence which will strengthen corporate accountability for human rights abuses. This would be in line with a global corporate trend, ever since the adoption by the UN of the Guiding Principles on Business and Human Rights[28] on strengthening or introducing human rights reporting requirements. More recently, this has taken the form of specific human rights due diligence laws.[29] France, for example, enacted the Corporate Duty of Vigilance in 2017, requiring French companies of a certain size to establish and to implement an annual ‘vigilance plan’. The German government is also considering enacting a mandatory human rights due diligence law.[30] The EU too has announced that the Commission will propose mandatory human right due diligence legislation. In September 2020, a draft report was issued by the European Parliament Committee on Legal Affairs which made specific recommendations to the Commission to that effect.[31]

18. A previous call by the UK Joint Committee on Human Rights for the introduction of such a law has gone unheeded.[32] In April 2019, civil society organisations launched a new campaign calling for an effective law to require companies and investors to take action to prevent human rights abuses, worker exploitation and environmental harm in their global operations, activities, products, services, investments and supply chains. They later prepared a useful set of considerations to be included in any new legislation introducing a corporate duty.[33]

19. In August 2020, the UK government announced a consultation on proposals relating to due diligence in supply chains in relation to “forest-risk” commodities.[34] As presently envisaged, the duty is limited and will impact on a small number of companies working in a specific field. It is unlikely to be as broad as the EU law being consulted upon. It would be a powerful step, for the UK government to introduce a corporate duty of due diligence, specifically relating to human rights and in compliance with international standards. It would avoid the piecemeal nature of current provisions and proposals, which are limited in scope and effect, and which lack ambition to meet international standards.

G. UK influence on countries other than China who are complicit in the persecution of Uyghurs

20. There have been a number of reports in which Uyghur Muslims are alleged to have sought refuge in neighbouring countries but have been arrested and forcibly deported back to China.[35] In light of the substantive and credible allegations relating to ill-treatment, detention camps and other grave international crimes, any forced returns are likely to place individuals at real risk of arbitrary detention, disappearance and torture. Pursuant to international law and principles of non-refoulement, and in particular pursuant to the 1951 Refugee Convention and the 1967 Protocol, as well as UNCAT, states must not forcibly return or send individuals to a place where they would be at risk of persecution, torture or other serious violations of their human rights.

21. Further to such obligations, some EU countries have announced either that they will suspend deportations of Uyghur people to China and/or that they will grant refugee status to all Uyghur asylum seekers. The Malaysian government has announced recently that it will not deport Uyghurs to China. There have been calls for similar action from the European Parliament.[36]

22. The Home Office published country information on China, which relates to Xinjiang, is 2 years old. It requires each person to demonstrate that they are likely to be at risk. This policy, which is followed by decision makers, is in need of urgent change. An automatic asylum policy for Uyghurs and Turkic Muslim people seeking asylum from Xinjiang has been called for already by a group of MPs and peers in August 2020, and through the tabling of an Early Day Motion in October 2020.[37] Such a marker would support Foreign, Commonwealth and Development Office statements on Xinjiang by taking steps which immediately benefit those who are the victim of repression, and which may result in stronger coordinated action being taken by sympathetic allies. It also demonstrates to countries other than China that rhetoric is matched with action.

22. This is an important example of an area in which Britain can not only lead by influence through the adoption of a formal asylum policy not to forcibly return ethnic Uyghurs or other Turkic Muslims to China and through the grant of automatic asylum status - but use that lead to influence countries, both privately and publicly, who are complicit in the persecution of Uyghur and other Turkic Muslim people by permitting and cooperating in forcible returns. This also meets the question asked as to what is the best form of support to offer to members of the Uyghur diaspora (and others) who are experiencing persecution and harassment abroad.

H. Other mechanisms

23. Closer to home, the UK Government should support the Uyghur Tribunal, an independent people’s tribunal established at the request of the World Uyghur Congress to investigate ongoing atrocities and possible genocide against the Uyghur People.[38] It is deeply regrettable that, in the absence of any formal investigatory mechanism, it is left to the commendable efforts of this people’s tribunal to perform the important task of conducting an investigation into the alleged crimes and human rights abuses committed against Uyghurs.

Schona Jolly QC

Tatyana Eatwell

9 December 2020

December 2020