How China’s legal bulwarks for its atrocities in Xinjiang can be overcome

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Preston Lim is a J.D. candidate at Yale Law School. He previously represented Canada as a Schwarzman Scholar at Tsinghua University, where he received a Master’s in Global Affairs.

A growing chorus of voices is urging China’s mass internment and abuse of as many as 1.8 million ethnic Uyghurs in the Xinjiang autonomous region to be called a genocide. In the United States, Democratic presidential candidate Joe Biden has intimated his support for the label, and President Donald Trump’s administration is considering use of the term. Here in Canada, former Liberal justice minister Irwin Cotler recently called on Parliament to deem the program genocidal.

The law, for its part, seems clear on the issue. The Chinese government has violated jus cogens norms – fundamental, overriding principles of international law, such as the prohibitions on genocide and crimes against humanity.

How should Canada respond? Thus far, the conversation has focused on bilateral mechanisms that Ottawa might adopt: export restrictions, Magnitsky sanctions, and the like. Yet, given that Beijing’s actions violate international law, Canadian policymakers ought to consider international solutions to the problem.

The most natural way forward would be to drag China before an unbiased and respected international tribunal, such as the International Court of Justice (ICJ) or International Criminal Court (ICC). That would demonstrate that what’s happening in Xinjiang isn’t just antithetical to Western values, but also represents a violation of international law. Such a ruling might also impose costs and restrictions on third-party countries that have continued to co-operate with China despite its actions.

Even if China dismissed the international judgment, as is likely, the judgment itself would remain useful. In 2016, China boycotted the proceedings of the Permanent Court of Arbitration, which was making a historic ruling in the South China Sea case; when it rejected China’s expansive claims of maritime sovereignty, Beijing declared itself not bound by the ruling. Nonetheless, the court’s decision has reshaped discourse on the South China Sea. Western navies pursuing freedom-of-navigation operations in the region can now point to the ruling to justify their actions.

Getting the Xinjiang issue before an international court will be difficult. Human-rights advocates face a spate of jurisdictional issues. Notably, a suit before the ICC is likely impossible in this case, as China has not yet acceded to the Rome Statute, the treaty that governs the ICC. Of course, even in situations involving non-party states, the ICC can sometimes proceed with a case, but none of the normal exceptions apply here. Referral by the Security Council – the first exception – is impossible since China holds a veto. The second exception is where one country has committed an act on the territory of another, which is itself party to the statute. This clearly does not pertain here: China has confined its atrocities within its own borders.

That leaves the other major tribunal: the ICJ. Again, a potential suit would face issues; China does not recognize the jurisdiction of the ICJ as compulsory. Moreover, China, in signing international treaties, has often refused to sign onto those provisions that allow for referral of disputes to the ICJ.

But there is another ICJ mechanism available: The court is authorized to issue advisory opinions on “any legal matter” if so requested by the UN General Assembly or certain other UN bodies. Since its creation, the ICJ has issued 28 advisory opinions, many on sensitive political issues. In its famous 1970 case on the continued presence of South Africa in Namibia, the court held that the occupation was illegal; UN member states were “under obligation to recognize the illegality of South Africa’s presence in Namibia.” A similar holding on Xinjiang could effectively shift the legal and political landscape.

The ICJ could hold that the atrocities impose concrete obligations on UN member states. The General Assembly should pose the question: “Do Chinese actions in Xinjiang constitute violations of jus cogens norms, and what are the legal consequences for states?”

Getting the General Assembly on board will be tough. Canada and its liberal democratic allies would need to cobble together a simple majority of the countries present and voting – 50 per cent of all votes plus one – and Beijing already exerts a great deal of influence at the UN. Most Muslim countries, which would appear to be natural allies on the Xinjiang issue, are heavily dependent on Chinese investment. But given how China has alienated countries during the COVID-19 pandemic, Canada may be able to convince China’s “friends of convenience” to vote yes or at least abstain.

The potential benefits of an ICJ advisory opinion are too alluring to ignore. The atrocities in Xinjiang clearly violate jus cogens norms – and Canada and the international community must meet those violations head on, as they did at Nuremberg and Tokyo half a century ago.

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