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

How international institutions provide a way forward for East Asian maritime disputes.
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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.

But would China accept such a Japanese challenge? So far the evidence is that it would not. Like the U.S. it fears putting any case before an impartial international tribunal through advance ratification of the ICJ's optional clause calling for compulsory jurisdiction. It could, of course, simply sue Japan before the ICJ regarding this case and ignore the optional protocol. Japan would then be under pressure to accept. But the PRC traditionally has mistrusted international adjudication and arbitration, as it just demonstrated in rejecting the Philippines arbitration claim before the UNCLOS system, to me a violation of the commitments China made to at least present its claims of no jurisdiction to the UNCLOS tribunal. But this rejection, reportedly contrary to the advice of the PRC Ministry of Foreign Affairs' legal experts, is costing the PRC in terms of its reputation, even as it is mustering many of the ASEAN countries to criticize or at least not support the Philippines' brilliant initiative.

The PRC's attitudes toward international law are not written in stone. WTO arbitration is a recent example. Many observers thought the PRC would not take part in WTO arbitration, even though entry required acceptance of the dispute resolution system, just as entry into UNCLOS does (with the scope of exceptions to be determined not by each entrant at its own unilateral discretion but by the UNCLOS system for determining jurisdiction). After over a decade we see China's active acceptance and participation in WTO arbitration, winning some and losing some, but gaining respect, confidence and legal experience.

Of course, more is at stake in cases of territorial sovereignty. Yet states, including the U.S. and some Asian states, have occasionally submitted such disputes to third party decision. China may yet feel pressure to reverse its decision to reject UNCLOS arbitration. Certainly it can be expected to quietly seek serious negotiation with the Philippines over the 9-dash line even while denouncing the Philippines for doing such a dastardly thing as exercising its right of self-defense under UNCLOS.

But will Abe have the wit and nerve to follow the advice of his legal experts? He would look like an international statesman and put the onus on China for continuation of the military confrontation, confident that the PRC would not accept the ICJ challenge.

Yet the PRC may eventually reconsider its practice of international law, in this respect as in others. When in June 1972 I urged Zhou Enlai and his advisors to place a Chinese legal expert on the ICJ as one of the perks of the PRC's then-recent entry into the UN, they laughed uproariously at such an absurd thought. After a decade, however, they changed their minds and the PRC has ever after been represented there by very able, highly respected experts.

There is a pragmatic as well as nationalist side to contemporary China's leaders. On that same 1972 first visit to China, when I asked my highly intelligent escort, Li Mingde, about the then-already hotly-contested Diaoyu-Senkaku issue, he first launched into an emotional tirade about how China would fight to the death to prevent Japanese occupation of sacred Chinese soil. But, when I pointed out that Japan had just regained possession of the territory from the U.S., he relaxed, smiled and said that there was no rush and that the matter could be settled any time in the next 500 years! This is a different world today, but one in which the PRC will have to be more practical and take more seriously the expectations of other countries that rely on international law and the possibilities that international law offers as an aid to settling important disputes.


This post first appeared at ChinaFile, an Atlantic partner site.


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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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