Colonialism in the 21st Century
Xinjiang, the Uyghurs and an Oversight in International Law
When the Charter of the United Nations was drafted in 1945, the aim was to eliminate both war and the causes of war. In a world devastated by conflict, the Allies dreamed of a new order governed by the rule of law, where human rights and the self-determination of peoples overrode the spent era of empire.
So when we think of colonialism today, we tend to imagine white European settlers sweeping aside the indigenous populations of the Americas or Australia in their lust for land; the creaking imperial administrations of Dutch Indonesia, French Indochina and the British Raj; or the unruly scramble for Africa. It is a period we shamefully consign to the history books.
But inherent contradictions of the UN Charter’s first two articles, which also enshrine the sacred right of nations to sovereignty and territorial integrity, leave chinks in the armour of international law. Colonialism is alive and well, and with us now in the 21st century.
A case in point is China, which following the collapse of the Soviet Union at the close of the last century constitutes what may well be the world’s last real empire. In its wild western province of Xinjiang, the politics of colonisation continue, intertwined with the modern obsessions with political Islam and the hunt for oil. Is there anything international law has to say about the predicament of Xinjiang’s Uyghurs, a people who are rapidly becoming strangers in their own land?
Download Word file here or read main text below. (Word file contains additional bibliography, maps and appendices)
The dynamic between China’s inner and outer regions is perhaps summarised best by the Great Helmsman himself, Mao Zedong:
We say China is a country vast in territory, rich in resources and large in population; as a matter of fact, it is the Han nationality whose population is large and the minority nationalities whose territory is vast and whose resources are rich…
Rather than an organically-formed nation state, as the Chinese government would have us believe, the country is in fact a construct of core provinces and peripheral colonies where the dominant ethnic group is the Han. They now represent 92% of the population as a whole. In Tibet, Inner Mongolia and Xinjiang, the forces of colonisation by this chauvinistic majority continue apace.
Nationalist and authoritarian in its outlook, the ruling Chinese Communist Party (CCP) tends to base its sovereignty and territorial integrity, the ideology of ‘One China’, on the borders of the empire during the Qing dynasty (1644-1911), despite the international recognition of various successor nation states such as Tibet after its collapse. Tibet’s 1950 annexation by Mao Zedong’s People’s Liberation Army (PLA) and the subsequent suppression of its people and their culture attracted worldwide attention, if not action. The Dalai Lama remains a prominent figure of international standing, and the cause of Tibet stays alive in numerous campaigns, societies and even Hollywood movies.
Xinjiang, on the other hand, enjoys none of the mystique or the visibility of Tibet. The people of Xinjiang, or East Turkestan as it is known at the Unrepresented Nations and Peoples Organization (UNPO) in the Hague, fear most of all the fate of the natives of Inner Mongolia, now also a Chinese province. Here, the original inhabitants have been reduced to just 17% of the population by the influx of Han Chinese. Ethnic Mongolians do at least have their own nation state (Outer Mongolia) in which their traditions, language and culture are preserved, but the Uyghurs have none.
Lacking a Dalai Lama figure to attract international support, since 11 September 2001 the Uyghur peoples’ drive for independence from the People’s Republic of China (PRC) has suffered another setback: the ‘War on Terror’. A spate of bombings during the 1990s reinforced the perception of the Uyghurs as violent separatists, and the little-known East Turkestan Islamic Movement has been labelled a terrorist organisation by the US and the UN. Even to use the phrase ‘East Turkestan’ is now an arrestable offence in China.
However, with the lines between ‘terrorists’ and ‘freedom fighters’ increasingly blurry under current international law, it is also perhaps the case that Beijing’s enthusiasm for George Bush’s ‘War on Terror’ is linked primarily to its own interests in Xinjiang, where the legitimacy of its policy is less than certain.
Xinjiang and the Uyghurs
Who are the Uyghurs? This in itself is an awkward question, since the history of the Uyghur people is not altogether clear-cut. Ethnically Turkic, they trace their ancestry to the Tarim Basin in modern day Xinjiang, though the Uyghurs did not become a nation as such until 742AD when a union of nine tribes defeated the Second Turkish Khanate.
Trading along the Silk Road put the Uyghurs into contact with both the Han Chinese and Islam, a religion they adopted in the 15th century. The Qing (or Manchu) dynasty in China later established Xinjiang, meaning ‘New Territory’, as a province in 1760, but lost it again during the Yakub Beg rebellion from 1864 to 1877. The region has not, therefore, always been under Chinese control. In fact, over the last two millennia China has had authority there for only around 500 years.
As the Qing dynasty itself dissolved, Xinjiang became a pawn in power games between Chinese factions and Russia. Under Soviet influence, a short-lived republic of East Turkestan was established in 1933, and again in 1944. Politicking between Stalin and Mao’s nationalist rival Chiang Kai Shek during the last days of World War II ensured that Xinjiang became part of the PRC, which was itself formed after the 1949 communist victory in China’s civil war. Uyghur leaders invited the PLA into Xinjiang the same year and the Xinjiang Uyghur Autonomous Region (XUAR) was established on 1 October 1955.
XUAR represents a sixth of the PRC’s total land area, but a far lower percentage of its total population. Moreover, only 4.3% of its area is considered suitable for human habitation. It is still very much the homeland of the Uyghur people, the vast majority of whom remain there.
The geopolitical and economic interests of the CCP in XUAR are obvious. The province contains all 5,600km of China’s external borders with resource-rich Central Asia, and in itself is a major source of valuable fossil fuels. Estimated oil reserves amount to 2.5 billion tonnes, while there may be 700 million cubic metres of natural gas.
Autonomy, however, remains “largely symbolic”. Policy decisions are taken by the CCP and all senior posts in the local and regional CCP committee are held by Han, and not Uyghurs. But the problem goes further than this: Uyghur territory is being colonised.
Sinification and the XPCC
The mass migration of Han Chinese into Xinjiang began during the reign of the Qing dynasty, but accelerated after the establishment of the PRC in 1949. By 1982, for example, the Han population in the province had increased from about 200-300,000 (about 1 in 15 of the population at the time ) to 5.7 million, an overall 28-fold increase at an average of 8.8% per year.
This activity continued during the 1990s. Between 1990 and 2000, the Han population in XUAR grew another 31.6% while the ethnic Uyghur population grew 15.9%. Among all of China’s provinces, Xinjiang’s overall population increase stood at 27%, the highest in China.
A recent study of population growth in XUAR puts the annual increase of the Uyghur population at 2.45% and that of the Han at 13% - over five times higher. A different survey puts the increases at 1.7% and 8.1% respectively. According to the 2000 census, the current population of Xinjiang is about 18.5 million, a 1.5% share of China’s total. The Uyghurs in Xinjiang now number just 8.6 million, a mere 46% of the population with the 7.5 million Han at 40.6% and minorities such as Kazakhs and Hui Muslims making up the rest. Many Uyghurs perceive this mass migration into their homeland to be the greatest danger to their religion and culture.
The homogenisation of the Chinese nation is now acknowledged as policy rather than accident. The current ‘Open Up the West’ initiative aimed at furthering the development of China’s fringes is a consolidation of the advances made during the 1990s, when Han migration was at its peak. Launched by President Jiang Zemin on 17 June 1999, the underlying aim is to ensure the stability and security of China’s disparate provinces. There is a chance that the break up of Yugoslavia and the Kosovo conflict (then very much in the headlines) were added inspirations for the campaign.
It is believed that around 7,000 more Han are now arriving every day, though of course not all of them settle permanently. Some estimates of immigration levels are even higher, and it is alleged that the government plans to settle 40-50 million in the region over time.
Driving the modernisation of Xinjiang is the Xinjiang Production and Construction Corps (XPCC), which comes under direct political control from Beijing. Lacking Foreign Direct Investment, it is the XPCC (financed by the government) that fuels XUAR’s economy, which is dominated by heavy industry and oil extraction. The company also builds infrastructure such as roads and railways.
The organisation is truly monolithic. It employs 2.48 million people, 88% of them Han, which represents 12.9% of the entire population of Xinjiang. (At present, the Uyghurs have been concentrated in the south while Han migrants dominate the more developed north. ) It controls a third of the province’s arable land. More than just an industrial giant, the XPCC also manages the construction of cities to house its workers – the provincial capital, Urumqi is an example – often at the expense of traditional Uyghur dwellings. In many ways, it is thus a state instrument of territorial control, and is a key engine for bringing Han people into the region.
There is evidence that in the face of this mass migration the Uyghurs are falling behind economically. Excluded from the most dynamic and profitable sectors, the gap between them and the Han is increasing. For example, the mining and export of XUAR’s oil and gas by the Han workforce and under Beijing’s dictates lead to a sense that the Uyghurs’ resources are being expropriated. Perhaps only 2% of the oil revenue, for example, is spent in Xinjiang.
Han businesses tend to receive more help than Uyghur enterprises from local officials (themselves also Han). The average income of a Uyghur is estimated by some to be just a quarter of that a Han and patterns of discrimination mean that a third of Uyghurs are considered underemployed.
Since 1949, Han culture has been promoted as the most advanced of all the traditions present in modern China: the Uyghurs, therefore, are automatically perceived as backward. The education system tends to downplay native culture and history in favour of Chinese. A way for Uyghurs to gain employment and engage in society is to learn the Chinese language, and indeed from March 2002 Mandarin became the language of instruction at schools in Xinjiang. Employability thus becomes linked to the degree of integration into the Han culture, and Uyghur culture is diminished as a result.
Though in one way the adoption of Mandarin over Uyghur is a means to stem marginalisation, the promotion of one language tends to suppress the traditions tied up in the other. “Language is a nation’s source of life,” says Uyghur leader-in-exile Erkin Alptekin. “If a nation loses its language, it ceases to exist.”
Most seriously of all, there are uncorroborated allegations of forced abortions and sterilizations, and the general denial of health care to Uyghur people. Life expectancy is said to have dropped from 65 to 45, and infant mortality to 20%.
Despite all this, there is relative religious freedom, and there is less deliberate and active oppression of the Uyghurs than there might be. Exploitation of XUAR’s resources has led to accelerated development compared to China’s other western regions, though it is a development that many Uyghurs are excluded from.
Uyghur activists are generally less interested in establishing a separate and independent Uyghur state than in simply curbing the assimilation of their culture into the Han identity. Amnesty International’s 1999 report states that ‘over the last 10 years, the local ethnic population has witnessed a steady erosion of its social, economic and cultural rights” and that the indigenous population “feels increasingly marginalized in what they regard as their ancestral land”.
In summary, as the population of China expands and demand for resources increases with it, it appears that Xinjiang is becoming little more than lebensraum for the Han majority. The Chinese state and its arm the XPCC are exploiting the region’s vital oil and gas reserves at the expense of the indigenous Uyghurs. The third arm of this “triple tactic” is their pacification by economic means. In the face of this overpowering policy, the Uyghurs’ very survival as a people could be at stake. It is this that international law as yet is failing to tackle.
A legal perspective
A reason why international law is unclear on CCP policy in XUAR is the lack of a recognised terminology for what is happening. Words such as ‘Hanification’ , ‘Sinification’ or ‘Sinicization’ are laced with specific ethnic overtones, whereas ‘ethnocide’ or ‘cultural genocide’ may be perceived as too strong and ‘assimilation’, ‘social engineering’ or ‘internal colonialism’ are too ill-defined.
It is difficult to find any specific law that PRC policy falls under, but one’s instinct is that the mass influx of one ethnic group into the homeland of another at the expense of their culture and economic well-being is an infringement of international law. Proving it is another matter.
Then again, as was the case at the Nuremberg trials, in international law the principle of nullem crimea sine lege does not necessarily apply. Even if there is no specific law, this does not mean that a crime has not been committed: it is not a limitation of sovereignty, but a principle of justice.
At the most fundamental level, therefore, what is most important is not the letter of international law but the spirit of international law, embodied in its basic form by the Charter of the United Nations. One of Roosevelt’s key notions during the formation of the UN was the dismantlement of empire and an end to the age of colonialism. Article 1.2 thus places at the very core of the UN and the system of international law the idea of the self-determination of peoples. The Uyghurs, numbering 8.6 million and with their own ethnic, linguistic and cultural identity are certainly a people.
But there is a catch in the UN Charter just moments later: the sovereignty of nations. The dilemma for XUAR is that, having accepted its place (whether by fair means or foul) under the PRC umbrella, any moves towards independence are a threat to the territorial integrity of China. Moreover, Beijing reserves the right to conduct its affairs within its own borders (it is often vociferous in defending this right) and as long as this is done by peaceful means that do not offend the non-aggression principles of the Charter, then it is hard to see what remedy there can be.
Leaders such as Erkin Alptekin name this paradox as one of the major obstacles to their cause. “National sovereignty has been a formidable barrier in the protection of human rights throughout the world,” he writes. He cites these “double standards” as a reason why unrecognised groups have lost faith in the UN’s ability to apply human rights standards and even questions the credibility and integrity of the institution as a whole.
Some succour for the Uyghurs might be found in Chapter XI Article 73, which reminds states of their obligation towards peoples who have not achieved self-determination. Yet again, this a double-edged sword. It could conceivably be argued that by promoting the industrialisation and development of Xinjiang, Beijing and the XPCC are indeed ensuring economic and social advancement of the inhabitants of XUAR, whatever their ethnic group.
Genocide: too strong a term?
The 1945 Charter of the International Military Tribunal that inspired much of what is now international law gives a loose definition of crimes against humanity: “murder, extermination, enslavement, deportation or other inhumane acts committed against any civilian population”. Though this applies firstly to the offences under the jurisdiction of the Nuremberg tribunal itself, it can also be said to be a principle that passes into customary law, and thus applies to the situation under scrutiny. All the buttons are pressed, both actus reus and mens rea. It is a serious attack on human dignity; it is not an isolated event but the result of a government policy conducted over decades. It appears in Xinjiang that a crime against humanity is indeed ongoing.
All well and good, but when it comes to codifying this principle in detail, power politics and international disagreement tend to get in the way. The five definitions in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide are far from comprehensive, and they do not cover all possible ways of intentionally destroying a human group. The closest it comes is in paragraph c: “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.
But what is ‘physical destruction’? Was the practice of ‘ethnic cleansing’ seen during the war in Bosnia physical destruction or merely expulsion of certain groups? Likewise, is the policy of flooding Xinjiang with Han Chinese – a kind of ethnic cleansing in reverse – tantamount to the destruction of the Uyghur people? Probably not.
This ambivalence was not lost during the drafting of the Convention during the years immediately after the war. The Netherlands delegation, for example, proposed an alternative definition: “It is a crime against humanity to exterminate or place in an intolerable situation… an individual or group of individuals by reason of their nationality, their religion or their opinions”. [Emphasis added]. Add the term ‘ethnicity’ to this and you have a formula for genocide that applies to the current situation in Xinjiang.
But the Dutch suggestion was rejected. The idea of an ‘intolerable situation’ is broad enough also to describe the situation of Native Americans or Australian Aborigines, not to mention the Palestinians. (The state of Israel was founded just months before the Convention was tabled with Resolution 260A(III) in December 1948.) Any group with an axe to grind could seize upon such a definition under the shallowest of pretexts. Or perhaps it was too close for comfort for some of the stronger voices in the drafting committee who were aware that their own states might fall under the rule.
In more recent times, Article 7 of the Rome Statute of the International Criminal Court carefully defines crimes against humanity, including the “deportation or forcible transfer of population”. But it has nothing to say about mass influxes of populations that intermingle with rather than ‘ethnically cleanse’ the original inhabitants. However, the freshness of the statute does allow some room for manoeuvre.
Lastly, genocide is usually regarded as a ‘crime of state’. But in Xinjiang it is a corporation, the XPCC, which is perpetrating the abuses. The CCP, governing party of the PRC, thus has a protective layer between itself and events on the ground. All of the above would make bringing a charge of genocide against China very difficult.
Other human rights instruments
Since human rights doctrine is at the core of international law, it might be expected that the 1948 Universal Declaration of Human Rights would contain a clause that could shed light on the Xinjiang situation. It does not. The best it can do is perhaps Article 27, which defines the right of a community to enjoy its own cultural life. But ‘community’ is a broad term that could easily be twisted to suit the idea of all the 50 or more ethnic groups in China as belonging to the same society – ‘One China’. Besides, other rights contained within the document, such as free speech and freedom from torture, are breached in China on a regular basis. Maybe it is best not to dwell any further on the Declaration.
Could the Uyghur people look for a solution elsewhere, in the International Covenants that came into force in 1976? The PRC signed the International Covenant on Economic, Social and Cultural Rights on 27 October 1997 and ratified it on 28 February 2001. Thus it would appear that this is a document that China wishes to be seen as keeping to.
But as instruments of international law go, the covenant is not as robust as it might be. While the preamble asserts that people must be given the conditions in which they can enjoy their economic, social and cultural rights, there is little within the text of the convention that can be readily applied to Xinjiang. Article 1.1 restates the right to self-determination and backs this up in the next paragraph with “All peoples may, for their own ends, freely dispose of their natural wealth and resources”. But it fails to adequately regulate the ownership of the aforementioned ‘natural wealth and resources’. Who owns the land and the oil in Xinjiang? The Uyghur people, the provincial government, the state or the CCP? Or all four?
The International Covenant on Civil and Political Rights is of no more help, and indeed the PRC has yet to ratify it, though it signed on 5 October 1998. There is no obvious breach in any case. Beijing is not actively suppressing, for example, the rights to religious and cultural freedoms mentioned in Articles 18 and 27. If anything, the convention protects the right of people to freedom of movement within their own states, thus legitimising the mass migration of Han people to Xinjiang.
Indeed, were the Uyghurs ever able to reverse the situation, not only would they not be able to expel the Han (this would be ethnic cleansing) but it would be hard for them to justify barring entry to other ethnic groups.
The Uyghurs might look to the International Convention on the Elimination of All Forms of Racial Discrimination, a product of General Assembly Resolution 2106(XX) of 21 December 1965. They would be disappointed again. Article 1.4 suggests that states must take “special measures… [for the] adequate advancement of certain groups”, a principle more or less restated in Article 2.2. Therefore, if any breach has occurred, it is a crime of omission rather than of commission and thus harder to prove and take seriously. The CCP has little to worry about here.
In its 49th session in August 1996, the UN Committee on the Elimination of Racial Discrimination that scrutinises adherence to the convention did ask about the “mass influx” of Han. In 2001 it noted that “economic development in minority regions does not, ipso facto, entail the equal enjoyment of economic, social and cultural rights in accordance with article 5 (e) of the Convention.” The committee also complained of discrimination occurring when peoples lose land and resources to “colonists, commercial companies and state enterprises,” a phrase that describes well the CCP and XPCC’s efforts in Xinjiang. But little more appears to have come of this. The committee has scant authority beyond expressing its concern.
Finally, there is the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. Of all of the above, this is perhaps of most obvious relevance. The stated purpose of this short document (it runs to just nine articles) is to “protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.”
However, once again, China might argue that it is fulfilling the principles of this declaration under its own legal system, which after all does provide for the rights and autonomy of its minority peoples and provinces. The fact that this is not the case in practise is a moot point, since the domestic law is firmly in place and would invalidate any argument.
Work in progress: the UNCHR’s draft declaration
International law is not static, and 60 years after the formation of the UN it continues to evolve. Despite the lack of concrete current legislation that could be cited by the Uyghurs to defend themselves against the encroachments of the Han, there are conventions in the pipeline. The trouble is that the UN process is slow.
General Assembly Resolution 1514(XV) of 14 December 1960, the Declaration on the Granting of Independence to Colonial Countries and Peoples, laid down some groundwork that we can look to. The preamble puts particular emphasis on the end of colonialism. Paragraph 7 reads as follows:
Convinced that the continued existence of colonialism prevents the development of international economic co-operation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace.
No stronger affirmation of some the UN’s founding principles could be asked for. The ninth paragraph also asserts the principle that “an end must be put to colonialism”.
Yet this document falls into the same trap as the UN Charter. Its enthusiasm to ensure the “transfer [of] all powers to the peoples of those territories” is followed by the contradiction that “disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” It’s the same Catch-22 as before.
The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities adopted by General Assembly resolution 47/135 of 18 December 1992 also goes part of the way to putting measures in place. Designed to promote the realisation of some of the instruments mentioned above, it obliges states to protect the existence and the rights of minority peoples. Article 4.2 instructs them to “create favourable conditions’ for this to take place. But once again, the Declaration is relatively mild in its language and jurisdiction. China only breaches it by omission rather than commission.
In 1985, the UN Commission of Human Rights’ (UNCHR’s) Working Group on Indigenous Peoples (WGIP) began drafting a new declaration. Some of the principles upon which they based it are worth bringing up: for example “the collective right to exist and to be protected against genocide” and “the right to preserve cultural identity and traditions”. The result was to become the Draft Declaration on the Rights of Indigenous Peoples of 26 August 1994.
In the lengthy paragraph 5 of the preamble, the draft declaration makes its position on modern colonialism clear:
Concerned that indigenous peoples have been deprived of their human rights and fundamental freedoms, resulting, inter alia, in the colonization and dispossession of their lands, territories and resources…
But we should first consider whether the Uyghurs can be considered as ‘indigenous peoples’ to whom this document applies: it appears to be geared more towards groups such as Native Americans or the tribal peoples of Borneo than anything else.
However, under the customs established by the ‘Kennewick Case’, which relates to the discovery of an indigenous person’s remains in America’s Washington State, it appears that they do. Referring to the Kennewick case, Patrick Thornberry summarises the characteristics of indigenous peoples as follows: association with a particular place; prior inhabitation; original or first inhabitants of that area; distinctive societies; and self-identification as indigenous peoples. The Uyghurs score on all five counts. We might also consider the Special Rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities Jose Martinez Cobo’s definition of ‘indigenous’ as people who “consider themselves distinct from other sectors of the societies now prevailing in those territories”.
Moving on, the crux of the draft declaration is the seventh article:
Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including prevention of and redress for:
a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
b) Any action which has the aim or effect of dispossessing them lands, territories or resources;
c) Any form of population transfer which has the aim or effect of violating or undermining any of their rights;
d) Any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures;
e) Any form of propaganda directed against them.
So here we have our silver bullet, a full and complete definition of the exact practises that are threatening the Uyghurs in Xinjiang.
The declaration also tackles the issue of land, which after all is at the core of the Uyghurs’ problem. The ability to survive as distinctive peoples is inextricably linked to this right to control their land and resources. No less than five articles, from 25 to 30, discuss these rights.
The trouble is that, having been drafted in 1994 after four separate resolutions of the UNCHR’s Sub-Commission on Prevention of Discrimination and Protection of Minorities, it is no closer to adoption than it was 12 years ago. The draft is “passionate” enough at the moment, but the long hard slog required before its adoption into ‘hard law’ means that its content is more than likely to be watered down further and further as time goes on.
A major sticking point is the articles on land rights mentioned above, which inevitably come into conflict with the rights of state sovereignty enshrined in the UN Charter. The concept of population transfer and the critical Article 7 of the draft declaration continue to be discussed by the WGIP: it was covered at their 22nd session in July 2004, for example. By this point, however, consensus had been reached on just 2 of 45 articles. Meanwhile, the effective colonisation of Xinjiang continues.
In his written statement ‘Question of violations of human rights and fundamental freedoms’ addressed to the UNCHR 61st Session of 14 March to 21 April 2005, Erkin Alptekin suggests a six-point resolution calling upon the Chinese authorities. It includes the following points:
– To guarantee the preservation of the cultural, religious and national identity of Uyghurs.
– To ensure the human rights of the Uyghur people and honour their will to live with dignity.
The resolution was not adopted, however and it is difficult to see any concrete result it might have had anyway. In the absence of any obvious remedies under international law, what more can be done?
There are still a few potential solutions UNPO might also pursue.
During the drafting of the draft declaration on indigenous peoples, the US delegation suggested that a clause be included that merged the idea of self-determination with self-autonomy within the boundaries of the existing state. However, in theory XUAR already is an ‘autonomous region’, though the practice is somewhat different. Furthermore, the UN and international law do not concern themselves with internal subdivisions inside a state.
On the other hand, the concept of self-determination might be considered as jus cogens within the framework of international law; while territorial integrity, which does not carry the same weight as sovereignty, is not jus cogens. Could, therefore, the idea of genuine autonomy within a state be developed into an international norm as was self-determination? Indeed General Assembly Resolution 1541 (XV) of 15 December 1960 does recognise that a territory should maintain a high degree of self-government upon its integration into another state – so why not the other way round?
Any such initiative aimed at dissolving the authority of the UN Charter’s Article 2 would certainly be stiffly opposed. The Xinjiang situation carries great resonance with regard to the far more public Israel-Palestine conflict. It is difficult to see US supporting an amendment likely to break down the authority of its strategic partner Israel over the West Bank. On the other hand, the recent withdrawals from the Gaza Strip show that where there is a political will, there is sometimes a way.
So could China conceivably be induced to take a lead from Israel? Would publicity and the ‘mobilisation of shame’ be effective? There is a Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples (currently Rodolfo Stavenhagen of Mexico, who was appointed in 2001). Perhaps he could bring his influence to bear. But it is highly unlikely that he could, due to China’s insistence that any judgement passed upon it is “interference in its internal affairs”.
Indeed, this is a mainstay of PRC policy in all its international relations. China’s rules maintain that external critics of China’s human rights record are exercising “a new form of imperialism.” It’s no good accusing China of internal colonisation, since it will throw arguments handed down from history straight back at you. And there is an uncomfortable element of hypocrisy when mainly Western nations point the finger at another for crimes of colonisation they themselves committed in spades during past centuries.
It is also unlikely that a Resolution 1503 procedure, a secret meeting in which the PRC is exposed to criticism, will work either. China’s presence on the UN Security Council will probably see to that. Since membership of the Council gives it authority to aid the determination of the gravest of international matters, China is hardly going to quietly submit to the verdict of other states and UN bodies.
But the fact that the Convention on the Prevention and Punishment of the Crime of Genocide does not cover in its text the ‘ethnic cleansing’ tactics seen in former Yugoslavia during the 1990s does not make this any less a crime, and the same principle must apply to the internal colonisation of Xinjiang. Rather than wait for the draft declaration to be finalised, adopted, signed and ratified – a process that could take another 20 years if it were to occur at all – the essence of Article 7 needs to find its way into the open in some other way.
Amending the Convention on the Prevention and Punishment of the Crime of Genocide to include it may be impractical, but there could be room for manoeuvre in the fledgling Rome Statute. Once the ideas of Article 7 are introduced into ‘hard law’, then the ball begins rolling for them to become customary law or even part of the span of jus cogens. But again, this will take time and a lot of difficult political manoeuvring.
International law is simply not equipped to deal with a situation such as that of Xinjiang due to its own inherent contradictions. As an institution, it is deliberately vague and undefined so as to allow for unforeseen eventualities but unfortunately this also leave wide gaps in its authority. Born at a time when international empires were collapsing, it failed to recognise the other side of empire, the practise of internal colonialism. When the unformulated rights of minorities come into conflict with the concrete institution of state sovereignty, the latter wins every time. Meanwhile, peoples such as the Uyghurs are faced with ultimate extinction.
Appendix A – ILO conventions
Other moves to codify rules pertaining to the plight of colonised or indigenous peoples have been ongoing since 1957 in the shape of the International Labor Organization’s (ILO’s) Convention 107 on Indigenous and Tribal Populations. However, aside from Article 2.c which instructs states to create “possibilities of national integration to the exclusion of measures tending towards the artificial assimilation of these populations.”
Only 27 nations ratified Convention 107, and it is as good as useless. Moreover, as a document of its time, the Convention appears to accept the inevitability that indigenous populations will eventually disappear and puts in place no preventative steps.
In 1989, the ILO designed a new Convention on Indigenous and Tribal Peoples (No. 169) to reinforce the ideas of Convention 107. It gives these people the right to decide their own developmental priorities, and advises states to consult them before embarking upon “programmes for the exploitation of mineral wealth”. The CCP and XPCC appear to have contradicted this principle with respect to the extraction of energy resources in Xinjiang. But the ILO is not as strong an organization as the UN proper, and its pronouncements carry less weight.
Appendix C - Bibliography
Appendix D - Maps
Appendix D – Abbreviations used in the text
CCP Chinese Communist Party
ILO International Labor Organization
PLA People’s Liberation Army (Chinese military)
PRC People’s Republic of China
UN United Nations
UNPO Unrepresented Nations and Peoples Organization
UNCHR UN Commission on Human Rights
UNHCHR UN High Commissioner on Human Rights
US United States
WGIP Working Group on Indigenous Peoples
XPCC Xinjiang Production and Construction Corps
XUAR Xinjiang Uyghur Autonomous Region