States cannot do as they will to their own people. This basic notion has run like a golden thread through the heart of international law since the Holocaust. Gone are the days states could commit atrocities against their own people and shirk any form of accountability on the basis of state sovereignty. Internationally, we have come to recognise the rights of man and of human groups. It was the commitment of that generation to this generation that violations of those rights should ‘never again’ be repeated.
Why then does the world stand idly by as the Chinese Communist Party (CCP) commits some of the most egregious violations of international law? The Uyghur people face mass internment into concentration camps, sterilisation, rape, torture, the prohibition of religion, the removal of children to state-run orphanages, slave labour and forced organ harvesting. With the Foreign Secretary only last week describing these crimes as ‘barbarism we all hoped was lost to another era’, the question begs to be asked, what will the UK do?
The answer, regrettably, is very little. From that bulldog spirit the UK could once be so proud to possess, we seem to have retained much of our bark but very little of our bite. The Foreign Secretary announced a series of measures that are limited in impact and stale. The so-called strengthening of the Modern Slavery Act is perhaps effective in generating attractive headlines, it is less effective in combatting modern slavery. Presently under the MSA, the only obligation on a company is to produce a slavery and human trafficking statement if you turnover more than £36 million. Naturally, reporting on supply chains should be encouraged but it does nothing to actively prevent modern slavery. A company may be complicit with slavery so long as they are transparent about being so.
The US, by contrast, issued a sweeping ban on imports containing any cotton or tomato products originating in Xinjiang. The UK has shown an unwillingness to stand firm against the CCP. Statements, letters, condemnation has been the failed practice of weak and ineffective Governments when confronted with alleged genocides over the past 80 years. Time and again, we see genocide perpetrated with impunity with states only prepared to say the right thing, short of taking the needed action.
I fear in the case of the UK, there is little evidence this will change. On Tuesday 19th January, MPs will have the opportunity to vote on the ‘genocide amendment’ to the Trade Bill. This is an all-party amendment which, if passed, would empower the UK High Court to revoke bilateral trade agreements with states committing genocide. This passed with a handsome majority in the House of Lords. It is now opposed by the Government who do not wish to involve UK courts in genocide determination. The Government’s flimsy arguments remain unconvincing and there is a growing rebellion among Conservative MPs led by Sir Iain Duncan Smith and Nus Ghani.
For the avoidance of doubt, I think it is only right to address the key points of contention from the Government so as to dispel any misunderstanding. The first is that this gives the courts control over trade policy. This is a bizarre assertion to make. It has long been the policy of successive Labour and Conservative Governments that genocide determination is not a political decision, but a judicial one. The problem is that the normal route for genocide determination is blocked by China. The United Nations isn’t a possibility as China has a veto, nor is the International Criminal Court as China is not a party. China is able to obstruct any chance at attempting to hold it to account. It, therefore, falls to UK courts if we are to begin to hold China accountable.
The Government has also pursued the line that it gives the courts too much power. Again, this is not constitutionally irregular. Under the Human Rights Act, if legislation is incompatible with the ECHR, the court makes a declaration to that effect. It is then up to Parliament as to how it should respond. The same would be true here. It would not be possible for a UK court to invoke a trade agreement, rather it would revoke the domestic implementing measures for a trade agreement, rather than the agreement itself. That, nonetheless, would still be subject to parliament who would decide how to act.
Once the Government’s rhetoric is blown away, it is clear that the UK is not prepared to get serious on China. The Government labours under a misapprehension that it is possible for China to change so long as we raise our concerns with the CCP. That is nonsense. As soon as the Government recognises our perception of China and the reality of China is vastly different, we may well see some backbone on this issue. The UK once showed international leadership in ensuring perpetrators of genocide are held to account. It betrays both our Party and our country to carry on pussy-footing around a growing and ever-present dangerous criminal state.
