Preventing War: Why international law is crucial to peacefully resolving the tension between Japan and China

Michelle Goodwin, of the Claremont Law Journal, interviews NYU Law School Professor Jerome Cohen:

 Why International Law is Critical to Preventing War in East Asia

Goodwin: Professor Cohen, thank you again for the interview. Can you please explain the relevant background information on the current tension between China and Japan?

Cohen: Well the tension between China and Japan is only part of a larger tension surrounding what many people call the rise of China and what other people say is the return of China to world prominence, since it has only been 150 years that China has not been a dominant power in the world. Right now, China’s expression of its rise is to give some vent to nationalist sentiment, to express their pride and accomplishment at the economic power that China has developed and the growing military power that others respect. The principle manifestation of this is at sea. China, all along its periphery, has been, you might say, pounding its chest, strutting and demanding that Japan respect its views on the Law of the Sea and the territorial questions relating to it. China has also taken similar posture vis-à-vis South Korea, even North Korea its ally, and certainly with respect to the South China sea as well as the East China sea. In the South China Sea you have a very sharp conflict between China and the Philippines, which I will mention shortly, because it is profoundly important in international law terms. You also have a very sharp conflict between the two socialist allies Vietnam and China, and you have Chinese disputes over other aspects of the South China Sea with some of their other neighbors, including Malaysia and even Indonesia, which is further south and will feel some impact from this. So the struggle with Japan over these islands is only part of a bigger picture.

Now, I should also say that the struggle with Japan over these islands is certainly not just over the islands; this is really a profound historical antipathy between the two major powers of East Asia. We could think about how we take for granted that France and Germany get along now, but you have to understand that in my lifetime France and Germany were hated enemies. They had gone to war repeatedly in the 19th and 20th century, and the great achievement of post-World War II Europe is that they had managed to reconcile. This doesn’t mean that they agree on all of the contentious questions that they confront, but they are really singing from the same page. This is an enormous achievement and many of us have been urging Japan and China to do the same.

The Chinese say that they are willing to do it, but how can you reconcile with a country that, unlike Germany, has failed to recognize how awful its conduct was in the 1930’s and 40’s vis-à-vis China? You have not had a comparable recognition of the past in Japan compared to what Germany has put itself through. Fairly recently, a big dispute flared up again about the visit of the Japanese Prime Minister Abe to the Yasukuni Shrine, where many of the war criminals of Japan, including those condemned to death and executed, have their remains stored. This is full of symbolism. So this isn’t a dispute over a few piles of rock, this is a dispute about a very, very serious long-running relationship, and it has poisoned China’s reputation with Japan, as well as with East Asia, Northeast Asia, and Southeast Asia.

Now what about these piles of rock? In the 1880’s and 1890’s, culminating in 1894/95 when Japan was at war with China, the Japanese government was investigating the feasibility of its desire to take those islands. They decided that they couldn’t do it publicly because China would object to what obviously the Japanese thought: that China had a claim to these islands. So in January of 1895 the Japanese secretly annexed these islands and adopted a decree that was not made public, claiming that the islands were terra nullius, as we say in international law; in other words, a territory not owned by anybody, empty land… and so they therefore could claim these islands, but they didn’t do it publicly. It wasn’t until 1943, if you can believe it, that Japan made public its claim to these islands. Immediately after World War II, the Chinese government didn’t take account of these islands. They were worried about the status of Taiwan, which is very, very important. So neither the Chiang Kai-shek government [in Taiwan] nor the Mao Zedong government [on the mainland] continued to compete [for the islands] after Chairman Mao and the Communist party took over the mainland in 1949. Nobody gave a damn about these islands until 1968. In 1968 there was a UN survey looking for oil and gas resources in that area, and it was shortly after that report, which said that there might be huge deposits of oil and gas underlying these islands, that bells started ringing, people noticed that these islands existed. At that point the Japanese government said that when Okinawa is returned to Japan on May 15th, 1972, these islands, which were under American administration, would naturally revert to Japan. At that point in 1972, it became obvious that China and Japan had a very, very serious dispute. The problem was how to handle it. I remember giving a talk at the annual meeting of the Harvard Club in Japan in April of 1972, and I talked about this topic, because there were already war-like clashes between ships, boats, etc. of China and Japan.

This is not a new problem, but when Deng Xiaoping took over control of China in late 1978-1979, he and the Japanese government agreed to just put these questions aside. Then for 40 years [the islands] were not an active source of dispute. But, beginning about a year ago, the Japanese government upset the Chinese government very greatly by purchasing several of these islands from their private Japanese owner. And China has taken that as Japan’s abandonment of the agreement made with Deng Xiaoping to keep the issue aside and has become very angry, claiming that Japan is nationalizing the islands. Since then, the Chinese have done a lot, in a very assertive way, to make the world aware that these islands belong to them. And the Japanese government, of course, tries to resist. This has led to a series of incidents that make us worry that violence will occur. Some people are recalling how World War I started-and these things do have a life of their own if they get started. So we are facing a very dangerous situation in the East China Sea.

Each side says they are willing to discuss the dispute, but each nation also thinks that the islands belong to them. Well something has to be done; the question is what can be done. My view is quite simple. There are international legal mechanisms-institutions, arbitration tribunals, and courts-for resolving these questions. Some Asian countries have gone to the International Court of Justice, and of course the U.S. and Canada have resolved some of their disputes in a peaceful way. So I have recommended that China and Japan take these questions to the International Court of Justice. Since each nation claims they have good legal merits to their case, let them put it to an impartial fair tribunal with the understanding that they will abide by the decision. But neither side is willing to do that. The previous Japanese administration hinted at their willingness to participate in international court by making a statement through their foreign minister that Japan believes in international law and agrees to submit to the compulsory jurisdiction of the International Court of Justice. Neither the U.S. nor China has done that. So essentially, Japan said that if China wants to take us to the ICJ, we will handle the question that way. I would like to see the Abe government do the same thing. I think it would be very smart of them to do that because they know China will never accept, but it would make Japan look like a sincere proponent of international law and it would make China think that we cannot just make these statements without being put to the test.

Eventually China will have to learn more about international law and how to use its institutions, but it takes time. One of my favorite expressions in Chinese is “everything requires a process” (xuyao yige guocheng), i.e., Rome wasn’t built in a day. In 1972, I had the chance, like you and I are sitting, to sit with Prime Minister Zhou Enlai; we had dinner and talked for four hours. In the third hour I got my nerve up and thought: I have to make a proposal to them! I said, now that the PRC [People’s Republic of China] represents China in the United Nations, (which had happened the previous year), you should name a justice to go on the International Court of Justice. That is one of the perks of being a great power – to be represented on the International Court of Justice. When I said that, Zhou Enlai and the people around the table laughed uproariously, they thought I was a comedian! To them, that was the most ludicrous thought anybody could have. Why would China, a Communist, Asian power that had always felt that the bourgeoisie of the world paid no attention to it, promote their International Court of Justice, why would they want to put a representative on that court? China has always mistrusted international law and international courts. And I said to them, I’m not joking, you are going to want to have someone on that court. Well, it took them over a decade but then they started appointing people. Now, they take part in the ICJ, but they haven’t come around to the point of submitting an important territorial dispute to any third party, because they may lose control over the decision. In negotiation, you maintain control even if you have a mediator, because a mediator has no power to decide and instead merely can make suggestions. But China is afraid that they won’t get a fair shake and that maybe they don’t have as strong a legal case as they claim to. And of course the Japanese case also has big holes. That is why they kept the annexation of the islands secret for so many years. As for the South China Sea, the Philippines and China have had a serious series of disputes over the ownership of certain features in the South China Sea. Having tried for over twenty years to negotiate a solution with China, last January, the Philippines stunned China and the world by taking their dispute to the arbitration of the International Law Tribunal for the International Law of the Sea. This Law of the Sea tribunal decides disputes relating to the Law of the Sea Treaty that China and the Philippines have ratified. Under that convention, if there are disputes regarding its meaning, you are supposed to go to this tribunal. But China has refused to go. This is an obligation under the treaty. When China signed up for the World Trade Organization (WTO) system, it had a similar provision: you must go to the WTO arbitration system for resolving disputes. And China has learned to take part; that’s progress. Sometimes they win a case, sometimes they lose, but they learned after a few years to play the game. But with respect to these much more serious, sensitive questions involving who owns territory, China shows no sign of being willing to go to arbitration. So, we are waiting to see now what will happen with the Philippine case. China is not taking part but the process is going forward, and it may well be that the Philippines will win this case. Then China will be faced with an international law question: Will it abide by the decision or will it thumb its nose at it? We don’t know.

I would like to see Japan put China to the test by taking its question of the islands to the International Court of Justice or to agree on a special arbitration tribunal. I have also suggested that since Northeast Asia and Southeast Asia lack the kinds of institutions that Europe developed after World War II, maybe the countries of East Asia should agree to a regional tribunal. If they fear the biases of Westerners for Western tribunals, let them create their own decision-making possibilities. I think we need more adventuresome, imaginative efforts from diplomats and governments; otherwise, we are going to be faced with increasingly serious political-military crises in the East China Sea and the South China Sea. By the way, the United States is not in a great position to make demands in this respect. The United States hasn’t even ratified the UN Convention on the Law of the Sea, so we are in a poor position to criticize anybody. Moreover, in the mid 80s under President Reagan, the United States thumbed its nose at the International Court of Justice concerning Nicaragua. So we look really bad, and I think that it is important for the Senate to finally ratify the UN Convention on the Law of the Sea.

Goodwin: So do you think that the way of the future might be to have all nations push for the international system, push for international law, push for the respect of these tribunals and courts?

Cohen: Of course – we have a rules-based world community, and China, Japan, and the other powers have to respect those rules. These were not rules that were imposed on China against its will or before the Communist government came to power. The Peoples Republic of China, which represents China in the world, took part in the negotiation of the UN convention of the Law of the Seas. They are original participants in that process, going back to when they entered the UN in 1971. So they have influence, and if they thumb their nose at the Convention on the Law of the Sea and the International Court of Justice, it will be a serious blow to international law. But in order to get them to play the game, Japan and the United States also have to take it more seriously. So right now we are facing a great challenge and an opportunity for the further development of international law among the leading powers of the world.

Goodwin: So it looks like we have our orders: We need to adopt more international law. Thank you very much, Professor Cohen.

Cohen: Of course.

 

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