The Xinjiang Conflict: Why It's Time for Mediation

• Author: Bazil Cunningham
• Position: Pepperdine Caruso School of Law
• Pages: 229-265

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

I want to thank my parents, past professors, friends, and God for helping me reach this point. I also

want to convey that the information expressed in this report does not necessarily represent my view or

opinion of China. I have an affinity and love for China after living there for several years and learning the

language for 17 years. Moreover, I also want to thank all the Chinese people who have shown me and my

family kindness over the years. I intend to write a neutral and polished article presenting both views of the

conflict, ultimately allowing my view to remain strictly neutral.

tHE Xinjiang ConfliCt

Why it’s time foR mediation

Bazil Cunningham

Pepperdine Caruso School of Law

E-mail: bazil.cunningham@pepperdine.edu

e Xinjiang Conict has gone unaddressed for too long. With massive glob-

al implications and regional geopolitical upheaval and instability on the line,

international scholars, pundits, and lawyers must turn their attention to the

region. It is vital that these experts do not critique the Chinese government or

garner unwarranted sympathy but rather address the problems head-on with

an eye for identifying the most suitable and eective neutral solution. As a his-

torical issue riddled with complexities and dynamics unknown to international

communities, the Xinjiang conict deserves more from the western world than

baseless accusations and characterizations of what has transpired. Rather, the

region needs swi change. is article will analyze the current situation, discuss

the role of history, describe the contemporary characterizations of the actions of

the Chinese government, assess the ecacy of international law and ADR pre-

scriptions, recommend alterations for the future, and conclude.

Keywords: International Law, Alternative Dispute Resolution, Human Rights, Medi-

ation, Ethnic Conict, China.

IX Indonesian Journal of International & Comparative Law 229-65 (April 2022)

230

Cunningham

“It is not ‘forgive and forget’ as if nothing wrong had ever

happened, but ‘forgive and go forward,’ building on the mistakes of

the past and the energy generated by reconciliation to create a new

future.” Alan Paton

INTRODUCTION

Amidst the multiple forms of conict worldwide, the Xinjiang conict

and treatment of Uyghurs in China have received scant attention, a

grave injustice. While the Afghanistan crisis, the looming possibility

of another American Civil War, or even the re-emerging climate crisis

are all issues of importance, the Xinjiang conict is equally deserving

of the world’s attention.1 As researchers from the Australian Institute of

International Aairs so eloquently expressed, “It seems convenient for

the world to turn a blind eye to China’s mass internment of Uyghurs in

its northwestern Xinjiang Province. But the repercussions from inac-

tion may prove a threat to stability both in the Asia Pacic and around

the world.”2 Accordingly, through this article, I seek to provide global

competence where holistic knowledge of global events and their inter-

national and legal implications will signicantly assist any attorney, no

matter the eld of law they practice or pursue.

Furthermore, the next generation of lawyers should have

some acumen of international competence as “[u]nderstanding. .

.[international legal conicts] provides a useful grounding in both the

nature and source of one’s government’s power as well as the limits

1. Emma Farge & Michelle Nichols, Donors Pledge $1.1 Billion for ‘Collapsing’

Afghanistan, T R (Sep. 13, 2021), https://www.reuters.com/

world/asia-pacific/un-seeks-600-million-avert-afghanistan-humanitarian-

crisis-2021-09-12/; Somini Sengupta, United Nations Warns of ‘Catastrophic

Pathway’ with Current Climate Pledges, N.Y. T (Sep. 17, 2021), https://

www.nytimes.com/2021/09/17/climate/climate-change-united-nations.

html; William G. Gale and Darrel M. West, Is the U.S. Headed for Another

Civil War?, B (Sep. 16, 2021), https://www.brookings.edu/blog/

xgov/2021/09/16/is-the-us-headed-for-another-civil-war/.

2. Henry Storey, Why Nobody is Taking Action on Xinjiang and Why it Matters,

A’. I.  I’. A. (Feb. 15, 2019) https://www.internationalaairs.

org.au/australianoutlook/taking-action-xinjiang-matters/.

231

e Xinjiang Conict

Cunningham

of that power,” thereby allowing attorneys to improve their domestic

lawyering skills.3 is transformation calls for the repudiation of

outdated legal representation and advocacy and advancement towards

a more globalized and interconnected world of legal practice.4 is

theory, predicated upon Harold Koh’s ‘transnational practice theory’

asserts that:

transnational legal process. . .whereby an international law

rule is interpreted through the interaction of transnational

actors in a variety of law-declaring fora, then internalized

into a nation’s domestic legal system. rough this three-part

process of interaction, interpretation, and internalization,

international legal rules become integrated into national law

and assume the status of internally binding domestic legal

obligations. . . Instead of focusing exclusively on issues of

“horizontal jawboning” at the state-to-state level as traditional

international legal process theories do, a transnational legal

process approach focuses more broadly upon the mechanisms

of “vertical domestication,” whereby international law norms

“trickle down” and become incorporated in domestic legal

systems.5

Ultimately, by learning about the Xinjiang conict and other

similar global conicts, the next wave of lawyers can learn to view the

world outside of a strictly U.S.-centered paradigm and adopt a more

exible approach to law practice. Nevertheless, the thesis revolves

around two main central points. First, I contend that genocide does

not accurately describe the conict despite outward appearances to the

contrary. Second, while valid, international solutions and prescriptions

are perhaps not the most eective way to address the conict because

3. John A. Barrett, Jr., International Legal Education in U.S. Law Schools: Plenty of

Oerings, But Too Few Students, 31 I’ L. 845, 846 (1997).

4. Robert Weber, Will the “Legal Singularity” Hollow Out Law’s Normative Core?,

27 M. T. L. R. 97, 99–164 (2020); Michael Guihot, New Technology, the

Death of the Biglaw Monopoly and the Evolution of the Computer Professional,

20 N.C. J.L.  T. 405, 408–14 (2019); Charlotte Ku & Christopher J. Borgen,

American Lawyers and International Competence, 18 P S. I’ L. R.

493, 499 (2000).

5. Harold Hongju Koh, Bringing International Law Home, 35 H. L. R. 623,

625-26 (1998).