The Debate on the Debate on Xinjiang at the Human Rights Council: Three Framings

For all the nice talk about human rights and accountability, on 6 October 2022, a majority of States at the Human Rights Council (HRC) voted against even debating – let alone investigating – the findings of the Office of the UN High Commissioner for Human Rights (OHCHR) on the situation in the Xinjiang, China.

On 31 August 2022, minutes before her appointment as High Commissioner for Human Rights came to an end, the Office of Michelle Bachelet released its ‘Assessment of Human Rights Concerns in the Xinjiang Uyghur Autonomous Region [XUAR], People’s Republic of China’. Based on original interviews and research, as well as on official Chinese Government documentation and information, and civil society reports, the overall conclusion of this report was that: ‘Serious human rights violations have been committed in XUAR in the context of the Government’s application of counter-terrorism and counter-“extremism” strategies’ (para. 143).

The report further noted that:

148. The information currently available to OHCHR on implementation of the Government’s stated drive against terrorism and “extremism” in XUAR in the period 2017-2019 and potentially thereafter, also raises concerns from the perspective of international criminal law. The extent of arbitrary and discriminatory detention of members of Uyghur and other predominantly Muslim groups, pursuant to law and policy, in context of restrictions and deprivation more generally of fundamental rights enjoyed individually and collectively, may constitute international crimes, in particular crimes against humanity.

Following this report, China issued an official response, in which it rejected the very issuance of the report. The Chinese position is that the assessment of the Office of the High Commissioner for Human Rights (OHCHR) is:

Based on the disinformation and lies fabricated by anti-China forces and out of presumption of guilt, the so-called “assessment” distorts China’s laws and policies, wantonly smears and slanders China, and interferes in China’s internal affairs, which violates principles including dialogue and cooperation, and non-politicization in the field of human rights, and also undermines the credibility of the OHCHR.

Subsequently, the United States and Norway, with the support of several other Western States, introduced in the Council a draft decision L.6, entitled ‘Debate on the situation of human rights in the Xinjiang Uyghur Autonomous Region, China.’

This post will look at the debate on this draft decision to have a debate, which lasted just over fifty minutes, at the HRC on 6 October 2022. It will not directly address broader, external factors overshadowing that debate, such as the leveraging of political, diplomatic and economic power to influence the position of States in that debate.

From an analysis of the ‘debate on the debate’, three, broad narrative framings may be discerned:

1. a Human Rights/Idealist framing based on the view that the HRC was mandated to assess all situations of human rights violations and debating the findings of the OHCHR fell squarely within that mandate;

2. a Statist/Realist framing based on the view that this situation was a matter essentially within the domestic jurisdiction of China and, in parallel, denying that any violations had occurred; and

3. a slight twist on this latter framing, aired by some Muslim States, that emphasised the need to avoid confrontation in the Council, while at the same time tentatively claiming that everyone, including Uyghur Muslims, were entitled to the enjoyment of human rights.

The next part will make a few reflections on each of these narrative framings.

1.   Human Rights/Idealist framing

As noted, the draft decision L.6 was co-sponsored by the United States of America and Norway, and supported by Canada, Denmark, Finland, Iceland, Sweden, and the United Kingdom – all Western, liberal States.

The States that spoke in this category deployed several arguments to make the case for the need for a debate on the human rights situation in Xinjiang. These included: a reference back to the foundations and mandate of the HRC (UN General Assembly resolution 60/251 of 2006); an empirical appeal to facts and evidence of human rights violations; reference to the OHCHR as a legitimate and credible source of information; and an attempt to frame the request for such a debate as merely ‘procedural’ – an opportunity for States with differing views to discuss and clarify matters.

For instance, in her introduction to the draft decision, the US representative referred back to UNGA resolution 60/251, which in paragraph 3 states: ‘the Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon.’ According to the US representative, the proposal was ‘a short, procedural decision calling for the Council to debate the human rights situation in Xinjiang’, which fell squarely within the mandate of the HRC.

Factual evidence was important for this group of States. According to the US representative, the findings of the OHCHR report corroborated ‘several concerns raised by special procedures, independent media, academic researchers, and most importantly, by Uyghurs themselves.’ And, similarly, for the representative of the United Kingdom, it was the harrowing details and serious findings by the OHCHR that underpinned the need for such a debate. In his words: ‘Our ask today is a simple one: A debate at the next session of this Council…this really is the minimum that an assessment of this nature should lead to.’

From this perspective, if factual evidence has any relevance to the work of the HRC, it is not possible to deny, or profess ignorance of, the violations that have happened, and continue to happen, against Uyghurs and other Turkic minorities in Xinjiang. The OHCHR report characterised them as serious violations of human rights. A report of the Special Rapporteur on contemporary forms of slavery, Tomoya Obokata, tabled on 19 July 2022, found that Uyghurs, Kazakhs and other ethnic minorities were subjected to forced labour. This report goes on to state:

given the nature and extent of powers exercised over affected workers during forced labour, including excessive surveillance, abusive living and working conditions, restriction of movement through internment, threats, physical and/or sexual violence and other inhuman or degrading treatment, some instances may amount to enslavement as a crime against humanity, meriting a further independent analysis.

Other reports, such as those of Amnesty International and Human Rights Watch have characterised these violations as crimes against humanity. And others, including the judgment of the Uyghur Tribunal, found that this was the crime of genocide.

From a legal perspective, therefore, the arguments within this framing seemed highly persuasive. The need for a debate was based on compelling factual evidence of serious violations. Indeed, at the HRC, this framing was primarily challenged not on the evidence, but on political considerations. The draft decision L.6 was challenged, for instance, for having been introduced only by Western States and was therefore susceptible to the criticism that it is a ‘Western’ proposal.

Moreover, it should be noted that, even the Western States who supported this draft decision and who, during this debate, declared themselves troubled by the evidence, have taken limited action, at the national level, to address the situation of the Uyghurs. While some States have adopted limited sanctions, and the parliaments of other States have adopted non-binding resolutions on the subject, this has not translated into firm official government policy and/or action, despite compelling evidence of serious violations.

2.     Statist/Realist framing

The second framing is the one offered by China. It is based on the view that the situation in Xinjiang is a matter essentially within the domestic jurisdiction of China and any attempt to debate it is an attempt to interfere in China’s internal affairs. Thus, such a debate would require the consent of the affected State (China). Or, put another way, an attempt of the HRC to debate serious human rights violations in China, without Chinese, consent would necessarily amount to, ‘politicisation and instrumentalization of human rights issues’ – according to the Chinese representative.

China deployed several arguments to support this framing: a blanket denial of any human rights violations happening in Xinjiang; a reference to social stability and economic development in the region; an attempt to reframe the issue as a ‘counter-terrorism’ matter; an argument that, therefore, this issue does not fall within the remit of the HRC and the Council had no business debating it; and an attempt to attack the legitimacy and credibility of the OHCHR for its assessment.

In this framing, there is no attempt to engage with the factual evidence proffered in the OHCHR report. On the contrary, the Chinese representative appeared to argue that, given that China was aiming for economic development in Xinjiang, and also that the country had adopted counter-extremism policies in the region, then it could not have, at the same time, committed serious violations. But that is exactly what the OHCHR evidence (and the evidence in other reports) points to: that in pursuing objectives such as economic development (which, in themselves, may be commendable), Chinese authorities have committed serious human rights violations against the Uyghurs and other Turkic minorities.

Instead of engaging with the factual evidence, States that spoke within this framing sought to challenge the legitimacy of the OHCHR report. This emerged clearly in the intervention of the Cuban representative, who rejected the ‘spurious and illegitimate report targeting the People’s Republic of China by the UN High Commissioner’ (without providing any evidence to corroborate these views). This framing, therefore, was largely restricted to political (rather than legal, evidence-based) arguments.

3.   Framing by Muslim States

The third framing is perhaps the most interesting as it requires the greatest logical leap. A number of Muslim States spoke to reject the draft decision in part because they considered the matter to be an internal affair of China and in part because they wished to avoid unnecessary confrontation in the HRC. However, in parallel, they offered reassurances about their deep commitment to human rights and, in particular, in the words of the representative from Qatar, that ‘all Muslim minorities all over the world must enjoy human rights including the right to belief and religion…’

The representative from Indonesia opened with: ‘Our firm commitment to protection of human rights is crystal clear. This applies to everyone, everywhere without exception, including the Uyghur Muslims in Xinjiang.’ He however went on to reject the proposal for a debate because it ‘will not yield meaningful progress, especially because it does not enjoy the consent and support of the concerned countries.’ However, he concluded with the reassurance that: ‘Rest assured, however, that Indonesia remains resolute in its commitment to promote and protect human rights, including in Xinjiang.’

The representative of Pakistan similarly opened with: ‘Pakistan attaches the utmost importance to advancing and safeguarding human rights for all…’ He then, however, went on to praise China for ‘pursuing the path of dialogue and constructive engagement with the UN human rights machinery.’ This, according to the Pakistani representative, was substantiated, inter alia, by the fact that China had allowed the former High Commissioner for Human Rights to visit the country. In his intervention, the Pakistani representative quickly skipped over the part where that visit resulted in evidence of serious human rights violations happening in China. Rather, in his view, the HRC debating evidence of serious human rights violations would undermine ‘the credibility of this important UN body.’

4.   Conclusion

In the end, the HRC voted 19-17 against holding a debate on serious human rights violations in Xinjiang, with 11 States abstaining. As the various delegations requested to speak, it was the approach of Muslim States that was particularly noteworthy.

States such as Qatar, Indonesia and Pakistan are all members of the Organisation of Islamic Cooperation (OIC), which had previously supported the Gambia in bringing a case at the International Court of Justice against Myanmar for the crime of genocide against Rohingya Muslims. The Gambia and other members of the OIC were praised for taking such action in support of the human rights of the Rohingya Muslims.

But the situation is very different with respect to the Uyghurs Muslims. There are no mass killings of Uyghurs and, indeed, the Uyghur Tribunal found that that it was a ‘silent’ biological, not physical, genocide that was occurring in Xinjiang (imposing measures intended to prevent births within the group). Moreover, the atrocities in Xinjiang were contained largely within the borders of China and did not spill over into neighbouring countries (unlike, for instance, the very visible refugee camps on the Myanmar/Bangladesh border). Indeed, the ‘invisibility’ of the situation in Xinjiang has remained, even as Chinese authorities have more recently started to dismantle the so-called re-education camps and to relocate inmates to forced labour or prisons without due process. These factors have enabled Chinese authorities to maintain a narrative of plausible denial, which Muslim States within the HRC (and others who wish to maintain a ‘business as usual’ approach with China) have found convenient to peddle.

But the OHCHR findings of serious violations of human rights in Xinjiang and the HRC’s failure to even debate this matter will have repercussions for global human rights everywhere, as it legitimizes narratives of denial in the very heart of the United Nations: the Human Rights Council. In her extensive analysis of the challenges posed by the situation in Xinjiang to international human rights law, Eva Pils notes that what China is doing is not merely turning back the clock to an earlier stage of international law that prioritised national sovereignty. Rather, China was ‘primarily – and even more dangerously – corroding its institutions and practices, while expanding neo-totalitarian governance discourses and practices to the global level.’

In order to resist that trend, States had an obligation to act on the evidence of violations emerging from Xinjiang. And Western States had the duty to lead by example in this regard. The failure of the debate on the debate at the HRC should serve as an eye opener to anyone about the fragility of the human rights regime and about how narratives of denial have not only made their way, but indeed prevailed, in the very body of the United Nations established to, according to paragraph 2 of UNGA resolution 60/251, promote ‘universal respect for the protection of all human rights and fundamental freedoms for all.’

Disclaimer: The author served as Head of Research and Investigation of the Uyghur Tribunal.