Negotiation—Not War—Can Resolve China's Conflict With Japan

How international institutions provide a way forward for East Asian maritime disputes.
Supporters applaud as Hong Kong fishing vessel "Kai Fung No. 2", which went to the disputed Senkaku or Diaoyu islands, docks at a public pier at Hong Kong's Victoria Harbour last summer (Bobby Yip/Reuters)

Sino-Japanese relations do not look promising at the moment. Obviously, the Diaoyu-Senkaku dispute is not the only factor in play, but it does focus nationalist passions on both sides. Yet both countries are capable of wiser conduct if their leaders can manage to rise above the dangerous temptations to beat military drums.

As China and Vietnam showed in settling their land and their Tonkin Gulf disputes, negotiation is the obvious and inevitable way out. Taiwan and Japan demonstrated this in their recent fisheries agreement over the Senkaku area. It did an end run around Beijing's effort to monopolize "the Chinese side" of the situation, a brilliant move on Ma Ying-Jeou's part that must have cost him dearly with Beijing even though it has been underappreciated at home and abroad. Island territorial disputes are harder to deal with, however.

Immediate negotiation prospects over the Diaoyu-Senkaku are dim indeed, a cooling off period is necessary and something must be done to break the stalemate and ultimately stimulate fruitful negotiation. Here is an obvious role for international law's possibilities for moving toward a long-term settlement.

In the South China Sea in January, The Philippines took a bold step to break the logjam there by invoking international law against China, the far stronger power, in order to moderate China's excessive claims and bullying pressures. Its resort to litigation challenging the "9-dash line" before a tribunal authorized by the United Nations Convention on the Law of the Sea, to which China and the Philippines are both committed, stunned the PRC and stimulated it to at least appear to take negotiations with the relevant ASEAN states more seriously than it had been. This is a splendid example of litigation being used to motivate more substantial negotiation, although I am skeptical about the speed and sincerity of China's newest negotiation tack.

Both countries are capable of wiser conduct if their leaders can manage to rise above the dangerous temptations to beat military drums.

Japan can adopt a similar tactic regarding the East China Sea and has been mulling it over for at least a year. Last November, shortly before leaving office, then-Foreign Minister Gemba posted an op-ed in the International Herald Tribune pointing out that Japan, unlike China and the U.S., had adhered to the compulsory jurisdiction of the International Court of Justice (ICJ), meaning that it consented to be sued there by any other state that had made a similar commitment. He suggested that, if China is so confident of its claim to the Senkakus, it should sue Japan before the ICJ and Japan would, of course, accept the case. Most people in Japan and elsewhere ignored this important initiative.

"Gemba's gambit," as we might call it in shorthand, was not a mere personal advertisement for a politician leaving office in frustration, but an idea that emanated from the legal experts of Japan's Ministry of Foreign Affairs, who remained optimistic even after the Abe government's ascent that the idea might be formally put forth by Japan. It has much to commend it. It would test China's bravado in constantly claiming that international law vindicates its claim to the important piles of rock and test Japan's also. It would temporarily make The Hague, rather than the East China Sea, the main location for a peaceful struggle. It would take years to resolve the case and thereby provide a cooling off period during which serious negotiation might get under way. The parties could always call off the litigation before its end if they reach agreement. If they don't, they can always base subsequent negotiation on the outcome of the ICJ case, but it is more likely that, since each side knows the weaknesses of its own case, neither will want to gamble on the outcome. Therefore each will be motivated to settle the case before a decision is reached or at least reach an agreement that will minimize the consequences of losing by agreeing in advance that these "islands" do not merit their own 200-mile Exclusive Economic Zone or continental shelf under the United Nations Convention on the Law of the Sea (UNCLOS) but merely a 12-mile territorial sea.. There are many options for imaginative settlement.

Jerome A. Cohen, a professor at New York University School of Law since 1990, is a leading American expert on Chinese law and government.

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