DOI: 10.5553/CAYILIR/277314562022001001013

Central Asian Yearbook of International Law and International RelationsAccess_open

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Central Asian States’ Compliance with International Refugee and Human Rights Law

The Case of Chinese Uyghur Asylum Seekers

Keywords Chinese Uyghur asylum seekers, refugees, Central Asia, Shanghai Cooperation Organisation
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Khalida Azhigulova, 'Central Asian States’ Compliance with International Refugee and Human Rights Law', (2022) Central Asian Yearbook of International Law and International Relations 258-277

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    • 1 Introduction

      After gaining independence in the 1990s, Central Asian states have become parties to major human rights conventions, including the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol. According to the Refugee Convention, states parties are obliged not to expel or return a refugee to the territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion (Art. 33). At the same time, three out of five states in Central Asia – Kazakhstan, Kyrgyzstan and Tajikistan – share an extensive border with Western China – the Xinjiang Uyghur Autonomous Region (XUAR) – mostly populated by ethnic minorities, including Uyghur, Kazakh, Kyrgyz and Tajik. According to data from the United Nations High Commissioner for Refugees (UNHCR), globally there were 280,000 refugees and asylum seekers originating from China in 2016.1x UNHCR 2017, p. 66. As neighbouring countries, Central Asian states – particularly Kazakhstan and Kyrgyzstan – have been a destination for Chinese asylum seekers. However, there are hardly any recognised refugees from China in any of these states.
      Apart from international human rights treaties, the Central Asian states are bound by regional multilateral and bilateral cooperation agreements with the People’s Republic of China, including under the Shanghai Cooperation Organisation (SCO) framework on combating “three evils”: terrorism, separatism and extremism. Against this backdrop, since 1997, there have been reports about the deportation of Chinese Uyghurs from Kazakhstan and Kyrgyzstan to China.2x Chebotarev 2001, Amnesty International 2004. The assessment of the status of the deportees differed among various stakeholders. While state authorities described the deportees as separatists and criminals, international human rights organisations called them refugees and victims of Chinese oppression.
      There is very scarce scholarship on the protection of Chinese asylum seekers in Central Asia, with the most recent dating back to 2009 and covering the protection of Uyghur asylum seekers in Kazakhstan and Kyrgyzstan.3x International Federation for Human Rights (FIDH) 2009. The existing scholarship, together with reports issued by UN bodies, has been continuously raising concerns over Kazakhstan and Kyrgyzstan’s non-compliance with their international human rights obligations when dealing with Chinese asylum seekers. The major reason for non-compliance has reportedly been the alleged collision between the international human rights obligations of Central Asian states and their regional commitments under the SCO framework that forces Central Asian authorities to sacrifice Chinese refugees’ rights in favour of maintaining good neighbourly relations with their more politically and economically powerful neighbour.4x FIDH 2009; author’s fieldwork interviews. Yet, there is practically no scholarship that comprehensively analyses the major reasons for non-compliance and whether these can be balanced out. This chapter looks at the problem of non-compliance from a new angle and explores to what extent Central Asian states can, at all, be fully compliant with their international refugee and human rights obligations when dealing with Chinese asylum seekers while facing significant economic and political pressure from China.
      This chapter advances two main arguments. First, it argues that the SCO’s legal instruments do not demand that the member states contravene their international human rights commitments in favour of the regional framework. Thus, Central Asian states’ non-compliance with their international refugee obligations is not caused by the alleged collision between different legal instruments, but rather by the political considerations of the authorities. Second, it argues that while the issue of protection of Chinese refugees has been a rather politicised and sensitive issue for weaker SCO member states, Central Asian states nonetheless need to develop and apply a strictly legal approach to dealing with Chinese asylum seekers in their territories, in full compliance with their international human rights and refugee law obligations. Such an approach will enable the Central Asian states to depoliticise the protection of Chinese refugees. Moreover, full compliance will help the Central Asian states to assert their sovereign equality and independence vis-à-vis China within the SCO and to balance out China’s growing influence on their policy of compliance with other international obligations. Finally, in the long run, a strictly legal approach to Chinese asylum seekers will help avoid any potential tensions in future relations with China if asylum is sought by Chinese Kazakhs and Chinese Kyrgyz in Kazakhstan and Kyrgyzstan, respectively.
      The discussion will be limited to two Central Asian states – Kazakhstan and Kyrgyzstan, both of which have sizable ethnic Uyghur communities5x The first Uyghur communities in the present-day territories of Kazakhstan and Kyrgyzstan appeared in the nineteenth century following the border treaty between the Russian Empire and the Qing Empire (Kamalov 2011, p. 115). The second wave of the Uyghurs’ arrival in Central Asian states occurred in the 1960s as a consequence of the Cultural Revolution (Han 2010, p. 247). According to the latest official statistics, in Kazakhstan there are 224,000 ethnic Uyghurs or 1.3% of the total population Statistics Committee of the Ministry of National Economy of Kazakhstan (2017) The Number of Population of Kazakhstan by Ethnicities at the Beginning of 2016. http://stat.gov.kz/faces/wcnav_externalId/publBullS14-2016?_afrLoop=7929555743968034#%40%3F_afrLoop%3D7929555743968034%26_adf.ctrl-state%3Dbl23pd90v_21. Accessed 10 April 2018. In Kyrgyzstan, there are 56,000 Uyghurs or 0.9% of the total population National Statistics Committee of the Kyrgyz Republic (2017) The Number of the Permanently Residing Population of the Kyrgyz Republic by Ethnicities in 2009-2017. http://www.stat.kg/ru/statistics/naselenie/. Accessed 10 April 2018. and will be formed around four sections. First, the chapter will discuss Kazakhstan’s and Kyrgyzstan’s international obligations related to the refugee protection and will argue that during their independence history the practice of refugee protection in these states has generally been quite generous. Section 3 will describe the practice of protection of the Chinese asylum seekers in Central Asian states and will argue that this practice has not complied with the states’ international human rights and refugee law obligations. Section 4 will explore some of the reasons (legal and political) why Central Asian states have never granted refugee protection to the Chinese Uyghurs. In particular, this Section will analyse to what extent the SCO framework may contradict the Central Asian states’ obligations under international human rights instruments and demand that they disregard their human rights obligations in favour of the regional commitments. This Section will argue that non-compliance with international law has been inevitable given that the Central Asian leadership treated the issue of the Chinese Uyghur asylum seekers as a political rather than a legal matter. The final Section will offer a solution how to depoliticise the issue of protection of the Chinese asylum seekers in Central Asia by merely applying the existing legal instruments ratified by Central Asian states in good faith. This Section will also explain why in the long run only the full compliance with international human rights instruments will enable weaker Central Asian to develop as sovereign and independent states and offset any threats from the ever-growing political influence of China in this region.
      The arguments presented in this work are based on the analysis of international instruments, national legislation, policy and practice of refugee protection in Central Asia as well as on the 30 expert interviews collected by the author in Kazakhstan and Kyrgyzstan in 2016-2017.

    • 2 International Legal Framework for Refugees and Practice of Refugee Protection in Kazakhstan and Kyrgyzstan

      In the 1990s, both Kazakhstan and Kyrgyzstan became parties to major human rights conventions, including the 1951 Refugee Convention and its 1967 Protocol, the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). The significance of these international instruments is that they contain the fundamental principles of refugee protection.
      For example, the Refugee Convention provides for a global refugee definition, according to which, a refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality or habitual residence and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country (Art. 1A(2)). It means that refugees6x In this chapter, the terms “refugee” and “asylum seeker” will be used interchangeably. flee their country of nationality or residence because it cannot effectively protect them from grave violations of their fundamental human rights proclaimed under universal human rights conventions such as the ICCPR and UNCAT.7x Hathaway and Foster 2014.
      Next, the Refugee Convention lays down three cornerstone principles of refugee protection. The first principle is that of the non-discrimination of refugees regardless of their race, religion or country of origin, meaning that states must treat equally all refugees and asylum seekers in their territory (Art. 3). The second principle provides that refugees shall not be penalised for illegal entry into the territory of asylum (Art. 31). Finally, the most important, overarching principle is the non-refoulement principle, according to which refugees must not be returned

      in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

      The only exception to the cornerstone principle of non-refoulement is when there are reasonable grounds to regard a refugee as a danger to the security of the asylum country (Art. 33(2)). However, even if recognised refugees or asylum seekers represent a threat to national security, according to other human rights conventions, such as the ICCPR (Arts. 6 and 7) and UNCAT (Art. 3), refugees and even failed asylum seekers must not be returned to their country of origin if they may be at risk of torture and inhumane, degrading and cruel treatment or punishment, including the death penalty. Section 3 will demonstrate to what extent Kazakhstan and Kyrgyzstan have been complying with these principles when dealing with Chinese asylum seekers.
      Kyrgyzstan and Kazakhstan ratified the Refugee Convention in 1996 and 1998, respectively, amidst the arrival of mass numbers of refugees. As noted by experts, due to the absence of any experience and state institutions in dealing with refugees, Kyrgyzstan and Kazakhstan sought the UNHCR’s technical assistance and later ratified the Refugee Convention.8x Interview, UNHCR Officer, Bishkek, June 2016. Since 1992, both Kazakhstan and Kyrgyzstan had been providing asylum to thousands of refugees fleeing civil strife in neighbouring states. For example, in the 1990s and 2000s, Kazakhstan hosted 4,000 refugees fleeing the 1992-1997 civil war in Tajikistan, over 12,000-15,000 Chechen refugees fleeing the two internal armed conflicts in Russia in the 1990s and early 2000s, respectively,9x Zakharov and Aliyev 2002. and around 2,500 refugees from Afghanistan,10x Sidorov 2003. who had been arriving since the 1992 fall of the Communist regime in Afghanistan and then after the 2001 US offensive on Taliban. Interestingly, Kazakhstan’s official statistics present much more modest data. According to its state migration authorities, the number of recognised refugees in the country has, since 2001, been relatively stable – around 600-650 people – with the number of new asylum seekers being around 70-120 every year.11x Human Rights Commission of Kazakhstan 2012, p. 122. Similar numbers are seen in 2017.12x Interviews, State migration officers, Almaty and Bishkek, May 2016 to March 2017. Of all refugees in Kazakhstan recognised by the authorities, 98% have been Afghan nationals. At the same time, Kazakhstani authorities have barely provided official refugee status to Chechen asylum seekers or to applicants arriving from China and Uzbekistan. The main reason for this has often been named as political sensitivity and a threat to the friendly relations with the applicants’ country of origin.13x FIDH 2009, p. 54; Interviews, UNHCR officers and refugee lawyers, Almaty and Bishkek, June 2016 to March 2017. To this category of invisible refugees, local UNHCR offices have been continuously providing protection. Section 3 will cover in detail the assistance offered by UNHCR to Chinese Uighur asylum seekers.
      Kyrgyzstan has also been generous in providing asylum to victims of civil wars. In 1995, Kyrgyzstan hosted 13,311 refugees, 90% of whom were from Tajikistan, with the majority of these being of Kyrgyz ethnicity.14x Makhaddinova 2015, pp. 7-8. The highest number of refugees in Kyrgyzstan was recorded in 1997 – 16,442 people – due to the intensity of conflicts in Afghanistan and Chechnya. In the 2000s, the number of registered refugees gradually decreased. Since 2009, the number of recognised refugees has been steadily low, less than 250. In 2013, the number of refugees fell to its lowest, at 137 refugees. As of 1 June 2017, according to official statistics, there were 179 refugees in Kyrgyzstan officially recognised by authorities, with the majority of them being Afghan nationals, followed by the nationals of Syria and Ukraine.15x Sagyndykkyzy 2017. Despite such generosity, as in Kazakhstan, there have never been recognised refugees among Chinese Uyghurs.
      In general, Kazakhstan and Kyrgyzstan have been complying with their international refugee and human rights obligations when dealing with Afghan or Tajik refugees. Indeed, as we have seen, the countries hosted a large number of refugees in the 1990s. However, the states’ treatment of Chinese asylum applicants has regularly attracted serious criticism from the UN treaty-monitoring bodies and human rights organisations. The following section will review these Central Asian states’ practice of protection of Chinese Uyghur asylum seekers and related criticism in more detail.

    • 3 Protection of Chinese Uyghur Asylum Seekers in Kazakhstan and Kyrgyzstan: Law and Practice

      Since 1992, Chinese asylum seekers arriving in Kazakhstan and Kyrgyzstan have predominantly been of Uyghur ethnicity. There have been reports about the deportation of Chinese Uyghurs by the local authorities in Kazakhstan and Kyrgyzstan back to China.16x Pan 2002; Amnesty International 2004; FIDH 2009. Moreover, there have been allegations that the Chinese security forces were active in the territories of the two states and forcibly returned asylum seekers to China.17x Chebotarev 2001. This chapter does not claim that all Chinese Uyghurs arriving in Kazakhstan and Kyrgyzstan were genuine refugees. As argued by Van Wie Davis, three interest groups can be identified among the Uyghur community in the XUAR: “While some Uyghurs want a separate state, others want to maintain cultural distinction within an autonomous relationship with China, and still others support integrating into the Chinese system”.18x Van Wie Davis 2008, p. 16. In other words, among the ethnic Uyghurs arriving in Central Asia, there might be people calling for the separation of the XUAR and who may have engaged in violent attacks and, equally, there might be people who express peaceful dissent against the restriction of the Uyghurs’ political, economic, religious and cultural rights by the Chinese authorities, without calling for violence or separation from China.
      On several occasions, UN bodies and international and local Chinese human rights NGOs raised concerns over the violation of human rights of Uyghur minority members.19x UN Committee against Torture 2008; UN Committee on the Elimination of Racial Discrimination 2009; Human Rights Watch 2016; US State Department 2017. On the other hand, China’s security concerns over religious extremism continue to exacerbate. According to media reports, at least 114 Chinese Uyghurs joined the ISIS in 2013-2014, including families with children. Moreover, in February 2017, the ISIS released a video showing Uyghur youth training at an ISIS militant camp and threatening to “flood China with rivers of blood”.20x Kennedy and Paul 2017. This chapter does not aim to discuss these reports in depth, but the very presence of such reports signifies that among the Chinese Uyghurs arriving in Central Asia, there might be genuine refugees, for example, peaceful protestors who may be inadvertent victims of the Chinese government’s “strike hard” campaigns against ethnic separatism, religious extremism and terrorism.
      The governments of Kazakhstan and Kyrgyzstan have continuously avoided dealing with the asylum claims by the Chinese Uyghurs. For example, in Kazakhstan, until 2010 the state migration authorities did not register asylum seekers from China and referred them to UNHCR for assessment of their claims under UNHCR’s mandate refugee status determination procedures. The Chinese Uyghurs who received a UNHCR refugee status were prioritised for resettlement because the Kazakhstani authorities did not recognise the UNHCR’s mandate status and demanded that the UNHCR remove Chinese Uyghurs with mandate refugee status from their territory. The situation changed in 2010, when the Kazakhstani state migration authorities started to register all asylum seekers regardless of their nationality, in line with the non-discrimination principle of the 1951 Refugee Convention (Art. 3). However, the outcome for the Chinese asylum seekers was pretty much the same. The most common official reason why state authorities refused to grant a refugee status to Chinese Uyghurs was that the latter failed to provide sufficient documentary evidence of their individuated persecution by Chinese authorities. Such decisions by local authorities go against the authoritative guidance on the assessment of asylum claims issued by the UNHCR21x UNHCR 2011. and the International Association of Refugee Law Judges.22x International Association of Refugee Law Judges 2016. In practice, it is rather difficult for asylum applicants to present any documentary evidence of individuated persecution. Obviously, state authorities do not issue official letters where they would admit to persecution of a particular individual. Moreover, Chinese authorities would hardly admit that their official policies may have resulted in the discrimination of ethnic minorities, as can be observed from the National Reports submitted by China to the Universal Periodic Review23x This is a special UN mechanism administered by the UN Human Rights Council whose aim is to review the human rights records of all UN member states on a regular basis, every 5 years, and make recommendations on their improvement. More information is available here: https://www.upr-info.org/en/upr-process/what-is-it. and the Committee on Elimination of Racial Discrimination.24x UN Committee on the Elimination of Racial Discrimination 2009, paras. 3-6. In these reports, the Chinese leadership described in detail all measures undertaken for the economic, social and cultural development of the XUAR, for example, the Programme for Helping the Development of Ethnic Minorities with Relatively Small Populations (2005-2010) and the Grand Strategy for the Development of China’s West. However, the same reports avoided a mention of any criticism of such measures by the ethnic minorities.
      While there are numerous statements by international organisations and foreign governments about ethnic discrimination in the XUAR, the Kazakhstani authorities have never accepted them as valid evidence, only because these statements could never prove that a particular asylum seeker present in Kazakhstan had been directly affected by ethnic discrimination. The only Chinese Uyghur asylum seeker who managed to get refugee status in Kazakhstan since 2010 has been a woman whose children were born in Kazakhstan and held a Kazakh nationality. In this case, the refugee status granted was rather a humanitarian solution to give the woman a legal status and let her take care of her underage children in Kazakhstan.25x Interview, refugee lawyer, Almaty, May 2016. See also UN Human Rights Council 2008 and UN Human Rights Council 2013.
      In Kyrgyzstan, the situation with Chinese asylum seekers is currently the same as that in Kazakhstan pre-2010: the asylum applications of Chinese Uyghurs are not registered by the authorities and are referred to the local UNHCR office.26x UNHCR 2014. If the UNHCR does not grant refugee status to an applicant, then state officials register the claim but only to refuse a refugee status. If the UNHCR grants a mandate refugee status to a Uyghur asylum seeker, then authorities allow this person to remain in the territory of Kyrgyzstan and do not deport him/her. However, the UNHCR refugee mandate status is not a legal status for foreign nationals under Kyrgyzstan’s law. Therefore, Chinese Uyghurs with the UNHCR refugee status remain vulnerable: they do not have a legal right to work, yet have to work to support themselves and their families. As a result, they are exposed to detention by the police as irregular migrants.27x Interview, refugee lawyer, Bishkek, June 2016.
      According to the UNHCR Office in Kazakhstan, between the 1990s and 2011 it has granted refugee status to over a 100 Chinese Uyghurs.28x Human Rights Commission of Kazakhstan 2012. However, the real numbers of all Chinese asylum seekers in Kazakhstan and Kyrgyzstan are unknown. Some experts put this number at 1,000 people. Not all Chinese Uyghurs risk approaching the state authorities or even the UNHCR and prefer to mingle with the local Uyghur communities.29x FIDH 2009, p. 77.
      As noted earlier, there have been reports about the deportation and extradition of Chinese Uyghurs from Kazakhstan and Kyrgyzstan. For example, Kazakhstani officials reported that 14 Chinese Uyghurs had been deported to China between 1998 and 2004, and international human rights organisations raised a concern over the fact that 20 deportees could have been potential asylum seekers.30x FIDH 2009, p. 78. Only one extradition case of a Chinese Uyghur from Kazakhstan received significant international coverage – because it was considered by the UN Human Rights Committee (HRC) under the ICCPR Optional Protocol ratified by Kazakhstan.31x UN Human Rights Committee 2011.
      In April 2010, Kazakhstani authorities arrested Arshidin Israil, a Chinese Uyghur, upon China’s extradition request based on Israil’s alleged participation in a terrorist act. Israil had earlier received mandate refugee status from the UNHCR and was about to leave Kazakhstan for a permanent settlement in a European country. However, Kazakhstani authorities did not recognise the UNHCR refugee status and allowed the arrest. Usually, in similar cases in the past, Kazakhstani authorities had extradited Chinese Uyghurs within a few weeks or two to three months of arrest. However, Israil’s extradition did not happen soon after his arrest. To prevent his extradition to China, where he would be at risk of a death penalty for the crime he was charged with, Israil applied to Kazakhstan’s migration authorities for asylum. The authorities registered the asylum claim and allowed the applicant to take his claim through all administrative and judicial appeal instances. In the meantime, Israil filed a complaint with the UN HRC claiming that his right to freedom had been violated by Kazakhstani authorities as they were keeping him under arrest for a much longer period than that prescribed by national legislation. The HRC sent official requests to the Kazakhstani authorities not to extradite Israil until his case was duly considered by the HRC. In May 2011, Israil’s application for asylum was reviewed and rejected by the highest judicial body of Kazakhstan, its Supreme Court. Despite the HRC’s request, Israil was extradited to China on 30 May 2011.
      On 1 December 2011, the UN HRC issued its decision on the matter, where it explicitly stated that Kazakhstan had violated its international obligations under the ICCPR (Arts. 6 and 7) by extraditing Israil to China, where he would be at risk of torture and the prospect of a death penalty, given the numerous reports of such instances by other UN bodies. Moreover, the HRC criticised Kazakhstan’s government for disregarding its request not to extradite Israil, which rendered the Committee’s work “nugatory and futile”. In its decision, the HRC demanded that Kazakhstan pay a compensation to Israil for violating his rights. Finally, the HRC demanded that Kazakhstan regularly monitor Israil’s situation in China and update the HRC, accordingly, to ensure that Israil would not be subjected to torture and the death penalty. This was the first decision of a UN treaty-monitoring body that formally found Kazakhstan non-compliant with its international refugee law and human rights obligations. Obviously, this decision caused reputation damage to Kazakhstan, which tries to promote itself as a country that respects democratic and human rights.
      As will be argued in Section 5 of this chapter, Kazakhstan and other Central Asian states will benefit from full compliance with their international human rights obligations because it can help them balance out China’s growing influence in their internal affairs, including in asylum-granting matters. However, before that it is important to analyse the major reasons behind Kazakhstan and Kyrgyzstan avoiding the granting of refugee protection to Chinese Uighurs.

    • 4 Reasons for Non-Compliance with International Refugee Law

      Legal commitments under the SCO cooperation framework and political considerations for keeping good neighbourly relations with the economically dominant China have continuously been named as the two main reasons for non-compliance with international human rights and refugee law. This section will analyse these legal and political arguments for non-compliance to understand whether they indeed represent an insurmountable obstacle to compliance with international human rights and refugee law obligations.

      4.1 Legal Commitments: Refugee Convention Versus the SCO Framework

      On 15 June 2001, on the very day of the establishment of the SCO, its member states adopted the Shanghai Convention on Combating Terrorism, Separatism and Extremism (Shanghai Convention), while the Organisation’s Charter which established its goals, principles, structure and other related matters was adopted only a year later, in 2002 This fact demonstrates that fighting these so called “three evils” is of significant importance for the SCO.
      Kazakh and Kyrgyz authorities’ treatment of Chinese Uyghur asylum seekers has often been linked to the states’ obligations under the Shanghai Convention, which arguably legitimised deportations of Chinese Uyghurs to China. While Kyrgyzstan has not faced criticism, unlike Kazakhstan, for extraditing Chinese Uyghurs, Kyrgyzstan has had its own negative experience of dealing with asylum seekers. For example, in 2005, Kyrgyzstan faced extreme pressure from the international community and Uzbekistan’s leadership when it provided temporary asylum to over 400 Uzbek refugees fleeing an internal armed conflict in the neighbouring Andijan Province of Uzbekistan in May 2005.32x Marat 2006, p. 61. The Kyrgyz government faced harsh criticism from the international community for non-compliance with international refugee law after it extradited four Uzbek nationals from this group in June 2005.33x Ibid, p. 47. Bearing this in mind, the Kyrgyz leadership has, since then, been cautious not to get into an analogous situation with the country’s more powerful neighbours. The probability that such complex situations will re-occur is quite high because of the regional treaties on cooperation in criminal cases and in combating terrorism, separatism and extremism. Therefore, by not granting asylum to Chinese Uyghurs, both Kazakhstan and Kyrgyzstan are likely trying to avoid becoming a hostage between their commitments to China under the SCO regional framework and their commitments under international human rights instruments. In this sub-section, we will discuss those provisions of the SCO framework that allegedly force Central Asian authorities to disregard their obligations under international refugee law in favour of their bilateral commitments towards China.
      The two main SCO instruments that contain legally binding and mandatory norms, rather than merely declaratory statements, are the 2002 SCO Charter and the 2001 Shanghai Convention on Combatting Separatism, Extremism and Terrorism. The relevant provisions of both documents will be considered in turn.
      According to the SCO Charter, the main goals of the organisation include strengthening mutual trust, friendship and good neighbourliness between the member states; cooperation in the maintenance and strengthening of peace, security and stability in the region and promotion of a new democratic, fair and rational political and economic international order; jointly combating terrorism, separatism and extremism in all their manifestations; fighting against illicit narcotics and arms trafficking and other types of transnational criminal activity, and also illegal migration; facilitating comprehensive and balanced economic growth, social and cultural development in the region and promoting enjoyment of human rights and fundamental freedoms in accordance with the international obligations of the member states and their national legislation (Art. 1) Some of the principles of cooperation between member states include mutual respect of sovereignty, independence, territorial integrity, non-interference in internal affairs, equality of all member states, non-use of force or threat of its use against each other, peaceful settlement of disputes and implementation of obligations under the SCO framework in good faith (Art. 2)
      In general, the goals and principles of the SCO closely follow those of the UN Charter. The major difference is that the SCO Charter does not contain a provision on the equal rights and self-determination of peoples, and a provision on “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (Art. 1 of the Charter of the United Nations). In general, there is nothing in the SCO Charter that would directly contradict the Central Asian states’ international commitments to protect refugees regardless of their nationality or ethnicity. Moreover, the SCO Charter does not designate any of its goals or principles to be of higher or lower priority; rather, all of them are expected to be followed by the member states. However, in practice, it appears that not all principles and goals of the SCO Charter carry equal weight for Kazakhstan and Kyrgyzstan’s authorities. They tend to treat the requirement to strengthen “mutual trust, friendship and good neighbourly relations” with utmost importance, at the cost of neglecting the human rights of Chinese Uyghur asylum seekers.34x Interviews, various stakeholders, Almaty and Bishkek, 2016-2017.
      Next, together with Kazakhstan and Kyrgyzstan, China is also a party to the 1951 Refugee Convention. As noted in Section 2, this Convention crystallised the fundamental principle of non-return of refugees to the countries where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. In addition, the three states are parties to the UN Convention Against Torture, which demands from its states parties not to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” (Art. 3). When these two instruments are read together, it follows that not only can recognised refugees or asylum seekers not be returned to their country of origin, but also failed asylum seekers, if there is a real risk that the person will be subjected to torture. In the case of China, the Committee Against Torture, during its 41st Session in Geneva in 2008, noted that it was

      greatly concerned by the allegations of targeted torture, ill-treatment, and disappearances directed against national, ethnic, religious minorities and other vulnerable groups in China, among them Tibetans, Uighurs, and Falun Gong practitioners.35x UN Committee against Torture 2009, para. 22.

      These concerns were taken into account by the UN HRC when considering a complaint from Israil and concluding that Kazakhstan had committed a violation of its international human rights obligations by returning an applicant for refugee status to China.
      Now, let us look at the provisions of the 2001 Shanghai Convention, which aims to protect the national security interests of its member states. The following provisions of the Convention have importance for asylum seekers and refugees (emphasis added):

      1. The Parties, in accordance with this Convention and other international obligations and with due regard for their national legislations, shall cooperate in the area of prevention, identification and suppression of acts of terrorism, separatism and extremism.

      2. In their mutual relations, the Parties shall consider referred acts as extraditable offences.

      3. In the course of implementation of this Convention with regard to issues concerning extradition and legal assistance in criminal cases, the Parties shall cooperate in conformity with international treaties to which they are parties and national laws of the Parties. (Art. 2)

      On the one hand, the Shanghai Convention does not contain any safeguards against the extradition of asylum seekers and refugees and demands the extradition of anyone who might be accused or even suspected of committing an offence. On the other hand, the Convention does state that, in cases of extradition requests, states parties should conform to their other international obligations. With this clause, the drafters of the Shanghai Convention admitted that the Convention is only a regional instrument and cannot contradict universal international instruments. This is fully in line with the principles of international law of the treaties that state that bilateral or regional multilateral treaties should not lead to the setting aside of a general treaty that was concluded earlier; instead, the earlier and general instrument should continue to control the way the more specific rules under bilateral and multilateral treaties are interpreted and applied.36x International Law Commission 2006.
      Finally, even if there were any contradictory clauses in the Shanghai Convention, the universal human rights conventions would still have priority over the regional cooperation convention on extradition. The question on the hierarchy of international and regional treaties can be resolved by referring to the UN Charter. The UN Charter establishes the priority of obligations under the Charter “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement” (Art. 103). Next, according to Articles 55(c) and 56 of the Charter, all members of the UN pledge themselves to take joint and separate action for the achievement of the UN’s purposes, including universal respect for, and observance of, human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion. Finally, the UN Security Council and General Assembly have repeatedly declared that member states are obliged to ensure compliance with all measures on combating terrorism along with their international obligations with regard to human rights, protection of refugees and international humanitarian law.37x UNHCR 2008, p. 12. Hence, universal human rights instruments always prevail over regional and bilateral extradition agreements.

      4.2 Political Considerations

      From the preceding analysis, it follows that Central Asian states cannot apply any legal exception to disregard international refugee and human rights law when dealing with the asylum claims of Chinese Uyghurs or their extradition under the SCO framework. Therefore, in choosing not to comply with their international legal obligations, Central Asian states’ authorities are guided by non-legal considerations. One such consideration is the economic stability of Kazakhstan and Kyrgyzstan, whose economies depend on their more powerful neighbour, China, which has been for decades the main trade partner, a major investor and foreign aid donor in Kyrgyzstan and Kazakhstan. Finally, since 2014, China’s influence on the whole region has increased through the building of new roads and associated infrastructure under the Chinese Belt and Road initiative. Given these considerable economic advantages, it appears obvious why Kazakh and Kyrgyz authorities do not wish to damage their relations with a strategic partner over “a few Uyghur asylum seekers”: they may face economic retribution from China if they do not satisfy its requests for extradition of Chinese Uyghurs.
      Among the political considerations, experts note the benefits that Central Asian authoritarian leadership have been gaining by supporting the SCO’s initiative to combat terrorism.38x Heathershaw 2017, p. 193. In fighting terrorism, extremism and separatism, the SCO’s Regional Anti-Terrorist Structure (headquartered in Tashkent, Uzbekistan) maintains a consolidated watch list of regional extremist individuals and organisations, which listed 1,000 individuals and 42 organisations back in 2010. It is acknowledged that Central Asian states face a continuous risk to their national security from various terrorist groups, some of which have reportedly carried out terrorist acts in both Kazakhstan39x Standish 2017. and Kyrgyzstan.40x Putz 2017. Moreover, there have been reports about the nationals of Central Asian countries joining the ISIS in Syria.41x Karmon 2017. These people may potentially carry out terrorist activities in Central Asia upon their return.42x Such risk was repeatedly noted in all interviews with state migration authorities of Kazakhstan and Kyrgyzstan, Almaty and Bishkek, 2016-2017. Thus, there is a practical need to keep watch lists. However, as argued by human rights groups, each country also lists its own regime threats, which may include political opponents in addition to actual terrorists. Moreover, the UN has raised serious concerns about the SCO’s data-sharing and listing procedures, noting that they are not subject to any meaningful form of oversight and there are no human rights safeguards attached to data and information sharing.43x Heathershaw 2017, p. 194. Therefore, if any asylum seeker is put on the list by any member state of the SCO and then the applicant’s extradition is requested, the country of asylum would unlikely challenge the decision of the other state and agree to extradite the person.
      Heathershaw furnishes another valid point for why states in Central Asia choose to extradite under regional conventions. He notes that states parties of such regional treaties

      assume each other’s domestic legal systems are robust and effective guarantors of the rights of their citizens. Arrests and extradition requests can, therefore, be routine processes, with little more than diplomatic assurances that the case is not political and the subject will not be subject to torture.44x Ibid., p. 193.

      Thus, a refusal to extradite can be interpreted as contempt of the country of origin and criticism of its human rights policies. The attempt to avoid any criticism of China’s policies towards its ethnic minorities can explain why Kyrgyzstan has shifted its responsibility towards Chinese Uyghur refugees to UNHCR and why Kazakhstan has been refusing to grant them refugee status. For a similar reason, there are no recognised refugees from Russia, on which both states depend politically and economically. At the same time, both countries feel much more at ease when granting refugee status to nationals of Afghanistan, Syria or Ukraine, with whom their economic and political ties are substantially weaker.
      It can be concluded that both Kazakhstan and Kyrgyzstan have treated the protection of Chinese Uyghurs more as a politically sensitive issue that could jeopardise political and economic cooperation with their more powerful neighbour rather than as their legal obligation under international human rights treaties. At the same time, the Central Asian states are cognisant of their international human rights commitments and have developed cautious approaches towards Chinese asylum seekers that at least formally would comply with international refugee law. As discussed in Section 3, Kyrgyz authorities register Chinese asylum seekers only after they have been rejected by the UNHCR, for the sole purpose of rejecting them again, and Kazakhstan demands from asylum seekers a type of evidence that is difficult for them to present due to the very nature of their situation. Both approaches technically comply with the letter of international refugee law, because Kazakhstan and Kyrgyzstan do not refuse Chinese asylum seekers entry into their territories and applying for asylum. However, the approaches do not comply with the purpose of international refugee law obligations, and their effect has consistently been the same: no Chinese Uyghur asylum seeker has found effective protection in Central Asia. Thus, it can be argued that full compliance with international refugee law can hardly ever be feasible in Central Asia as long as such compliance contradicts the more critical political and economic interests of Central Asian states.

    • 5 Why Central Asian States Should Comply Fully with International Human Rights Obligations

      The previous section demonstrated that Central Asian states have been persistently applying a politically convenient approach towards Chinese Uyghur asylum seekers rather than a strictly legal and apolitical approach demanded by relevant international human rights treaties. This section will explain why a political approach towards Chinese asylum seekers is wrong in the long term and, if not addressed effectively, may still cause damage to the relations between Central Asian states and China in the future. The section will also provide a solution on how Central Asian states can depoliticise the issue of protection of Chinese asylum seekers to become fully compliant with their international refugee law obligations.
      The main risk of continuous non-compliance with international human rights law in favour of meeting Chinese demands is that human rights will not be a priority for the leadership of Central Asian states. The danger of this situation is that it may undermine the principles of sovereign equality, independence and non-interference in member states’ internal affairs proclaimed in the SCO Charter. According to the Refugee Convention, granting or refusing refugee status is a matter of internal affairs of an asylum state. Thus, as a legal principle, Kazakhstan and Kyrgyzstan should consider applications from Chinese Uyghurs as they would applications from asylum seekers of other nationalities, and apply only international law and national legislation as their source of guidance. In practice, Kazakh and Kyrgyz authorities reason that by granting refugee status to a Chinese Uyghur, they would be criticising China’s policy towards its ethnic minority and would thus be interfering its internal affairs.45x Interviews, migration officers and other stakeholders, Almaty and Bishkek, 2016-2017. Therefore, it appears that Central Asian states admit the priority of China’s internal affairs over their own internal affairs of refugee protection.
      It should be noted that the Refugee Convention acknowledges that the presence of a particular refugee may cause a risk to the national security of the asylum state. For this reason, Article 32 of the Convention states that “compelling reasons of national security” are the only grounds on which a refugee or an asylum seeker can be removed from the territory of the asylum state, although not to the country of origin of the individual. National security reasons can be interpreted quite broadly: any potential conflict with a more politically and economically powerful neighbour like China could also be regarded as a threat to national security from the perspective of the host population and authorities.
      A solution to the dilemma of what to do with a politically sensitive refugee claim can be found in the multi-vectoral policy of both Kazakhstan and Kyrgyzstan. Under the Refugee Convention, both countries have a duty to cooperate with the UNHCR. The UNHCR was established by the UN General Assembly, which entrusted the former with functions to protect refugees and seek permanent solutions for them. The UNHCR has already effectively assisted Kyrgyzstan to resolve a political crisis of hosting Uzbek refugees, in 2005. At that time, the Kyrgyz government was under tremendous pressure from the Uzbek government, on the one hand, as it demanded the return of its 400 nationals, and the international community, on the other hand, that demanded that Kyrgyzstan comply with its international refugee and human rights obligations and grant asylum to the Uzbek nationals. This sensitive situation was resolved when the Kyrgyz leadership allowed the UNHCR to transfer the 400 Uzbeks from its territory to a temporary refugee centre in Romania.46x Marat 2006, p. 61. Thus, with international assistance, Kyrgyzstan managed not to contravene its international human rights obligations. The UNHCR’s assistance can similarly be requested in other refugee cases that Central Asian authorities consider as sensitive. For example, the governments of Kazakhstan and Kyrgyzstan can formally request the UNHCR to carry out an assessment of the claims of Chinese asylum seekers to establish whether they are genuine refugees. Thus, the governments will be spared from the alleged risk of interference in China’s domestic affairs on account of assessing whether its policies indeed violate the rights of ethnic minorities. If a Chinese asylum seeker is recognised as a refugee by the UNHCR, Central Asian states should respect this status and treat its holder as any other refugee recognised by domestic authorities. Thus, Chinese Uyghurs with the UNHCR mandate status will be able to enjoy a legal status in Kazakhstan and Kyrgyzstan and protection from deportation, while the state authorities will be able to depoliticise the issue of granting asylum to Chinese Uyghurs.
      In the case of an extradition request from China, Kazakhstan and Kyrgyzstan will be entitled to refuse extradition on the basis of the UNHCR’s mandate status. In Kazakhstan’s case, such a refusal is absolutely legitimate pursuant to the 1996 bilateral treaty between Kazakhstan and China on extradition, which provides that extradition shall not take place if a requested state has provided asylum to the person whose extradition is being sought (Art. 3(2)). While Kyrgyzstan does not have a similar bilateral treaty with China, the national legislation of both Kazakhstan and Kyrgyzstan prohibits the extradition of recognised refugees and asylum seekers.47x See 2014 Criminal Code of Kazakhstan, Art. 590 and 2017 Criminal Procedure Code of the Kyrgyz Republic, Art. 524.
      The aforementioned solution demonstrates that Central Asian states should not see their international human rights and refugee obligations as a source of danger to their friendly neighbourly relations with China; rather, full and proper compliance with international refugee law in good faith will provide Central Asian states a way to balance out the pressure of their more powerful neighbour on their internal affairs and assert their sovereign status and independence in bilateral relations owing to support of international community.
      Finally, the presented solution is capable of de-escalating potential sensitive situations with Chinese asylum seekers in the future. It is naïve to think that asylum seekers from China’s XUAR will stop arriving in Kazakhstan and Kyrgyzstan; rather, the situation has the potential to become even more serious. Until recently, any reports of alleged discrimination of ethnic minorities in the XUAR concerned only ethnic Uyghurs. But what if ethnic Kazakhs and Kyrgyz start seeking asylum in Kazakhstan and Kyrgyzstan? There have been recent reports that ethnic Kazakhs and Kyrgyz in China have faced pressure from Chinese authorities in a similar manner as ethnic Uyghurs, allegedly for their religious views and for their intention to immigrate to Kazakhstan and Kyrgyzstan, respectively.48x Long 2017; Pannier 2017. Fortunately, ethnic Kazakhs and Kyrgyz, unlike ethnic Uyghurs, have a choice to arrive in Kazakhstan and Kyrgyzstan, respectively, not as asylum seekers but as ethnic repatriates under the governmental programmes of repatriation of ethnic Kazakhs (Oralman in Kazakhstan) and ethnic Kyrgyz (Kairylman in Kyrgyzstan). However, if China requests the extradition of its nationals of Kazakh and Kyrgyz ethnicities, the relevant repatriation status does not protect against extradition. Therefore, it might be an even more sensitive choice for Kazakhstan and Kyrgyzstan to agree to extradite their ethnic kinsmen amidst reports of alleged discrimination and other serious violations of their rights in China.

    • 6 Conclusion

      This chapter demonstrated that although Kazakhstan and Kyrgyzstan have ratified the major international human rights and refugee law instruments, they have failed to provide sufficient protection to Chinese Uyghur refugees in their territories. It argued that the main reason for non-compliance is these Central Asian governments’ political approach towards Chinese Uyghur asylum seekers, according to which they are seen not as beneficiaries of the relevant human rights treaties but as a threat to friendly neighbourly relations with China. The chapter concluded that if the political approach continues to be followed, full compliance with international refugee law will hardly ever be feasible in Central Asia.
      Next, the chapter argued that while the political constraints of the Central Asian states under discussion are well understandable, a political, rather than a strictly legal, approach towards Chinese asylum seekers risks undermining the independence and sovereign equality of these states. Moreover, if a political approach to dealing with Chinese asylum seekers persists, there is a risk of even more serious tensions, if apart from the Chinese Uyghurs, the ethnic Kazakh and the ethnic Kyrgyz from China also start arriving in Central Asia in search of asylum.
      This chapter concluded that only full compliance with international refugee and human rights obligations would enable Central Asian states to protect genuine refugees and balance out China’s growing political influence on their domestic affairs. Full compliance with international human rights treaties should not be seen by Central Asian states as a problem that may complicate neighbourly relations but as a solution to preserve sovereign equality and independence when addressing any sensitive issue with a more powerful partner.

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    Noten

    • 1 UNHCR 2017, p. 66.

    • 2 Chebotarev 2001, Amnesty International 2004.

    • 3 International Federation for Human Rights (FIDH) 2009.

    • 4 FIDH 2009; author’s fieldwork interviews.

    • 5 The first Uyghur communities in the present-day territories of Kazakhstan and Kyrgyzstan appeared in the nineteenth century following the border treaty between the Russian Empire and the Qing Empire (Kamalov 2011, p. 115). The second wave of the Uyghurs’ arrival in Central Asian states occurred in the 1960s as a consequence of the Cultural Revolution (Han 2010, p. 247). According to the latest official statistics, in Kazakhstan there are 224,000 ethnic Uyghurs or 1.3% of the total population Statistics Committee of the Ministry of National Economy of Kazakhstan (2017) The Number of Population of Kazakhstan by Ethnicities at the Beginning of 2016. http://stat.gov.kz/faces/wcnav_externalId/publBullS14-2016?_afrLoop=7929555743968034#%40%3F_afrLoop%3D7929555743968034%26_adf.ctrl-state%3Dbl23pd90v_21. Accessed 10 April 2018. In Kyrgyzstan, there are 56,000 Uyghurs or 0.9% of the total population National Statistics Committee of the Kyrgyz Republic (2017) The Number of the Permanently Residing Population of the Kyrgyz Republic by Ethnicities in 2009-2017. http://www.stat.kg/ru/statistics/naselenie/. Accessed 10 April 2018.

    • 6 In this chapter, the terms “refugee” and “asylum seeker” will be used interchangeably.

    • 7 Hathaway and Foster 2014.

    • 8 Interview, UNHCR Officer, Bishkek, June 2016.

    • 9 Zakharov and Aliyev 2002.

    • 10 Sidorov 2003.

    • 11 Human Rights Commission of Kazakhstan 2012, p. 122.

    • 12 Interviews, State migration officers, Almaty and Bishkek, May 2016 to March 2017.

    • 13 FIDH 2009, p. 54; Interviews, UNHCR officers and refugee lawyers, Almaty and Bishkek, June 2016 to March 2017.

    • 14 Makhaddinova 2015, pp. 7-8.

    • 15 Sagyndykkyzy 2017.

    • 16 Pan 2002; Amnesty International 2004; FIDH 2009.

    • 17 Chebotarev 2001.

    • 18 Van Wie Davis 2008, p. 16.

    • 19 UN Committee against Torture 2008; UN Committee on the Elimination of Racial Discrimination 2009; Human Rights Watch 2016; US State Department 2017.

    • 20 Kennedy and Paul 2017.

    • 21 UNHCR 2011.

    • 22 International Association of Refugee Law Judges 2016.

    • 23 This is a special UN mechanism administered by the UN Human Rights Council whose aim is to review the human rights records of all UN member states on a regular basis, every 5 years, and make recommendations on their improvement. More information is available here: https://www.upr-info.org/en/upr-process/what-is-it.

    • 24 UN Committee on the Elimination of Racial Discrimination 2009, paras. 3-6.

    • 25 Interview, refugee lawyer, Almaty, May 2016. See also UN Human Rights Council 2008 and UN Human Rights Council 2013.

    • 26 UNHCR 2014.

    • 27 Interview, refugee lawyer, Bishkek, June 2016.

    • 28 Human Rights Commission of Kazakhstan 2012.

    • 29 FIDH 2009, p. 77.

    • 30 FIDH 2009, p. 78.

    • 31 UN Human Rights Committee 2011.

    • 32 Marat 2006, p. 61.

    • 33 Ibid, p. 47.

    • 34 Interviews, various stakeholders, Almaty and Bishkek, 2016-2017.

    • 35 UN Committee against Torture 2009, para. 22.

    • 36 International Law Commission 2006.

    • 37 UNHCR 2008, p. 12.

    • 38 Heathershaw 2017, p. 193.

    • 39 Standish 2017.

    • 40 Putz 2017.

    • 41 Karmon 2017.

    • 42 Such risk was repeatedly noted in all interviews with state migration authorities of Kazakhstan and Kyrgyzstan, Almaty and Bishkek, 2016-2017.

    • 43 Heathershaw 2017, p. 194.

    • 44 Ibid., p. 193.

    • 45 Interviews, migration officers and other stakeholders, Almaty and Bishkek, 2016-2017.

    • 46 Marat 2006, p. 61.

    • 47 See 2014 Criminal Code of Kazakhstan, Art. 590 and 2017 Criminal Procedure Code of the Kyrgyz Republic, Art. 524.

    • 48 Long 2017; Pannier 2017.