[Editor's note: We gratefully acknowledge the special contribution of this paper
to ICAS by Larry A. Niksch. sjk]
Six Reasons Why Japan Should Propose Taking the Senkakus Issue to the
International Court of Justice
Larry A. Niksch
Specialist in Asian Affairs, Congressional Research Service (retired)
Senior Associate, Center for Strategic and International Studies
Fellow, Institute for Corean-American Studies1
May 2, 2014
By all accounts, the situation around the Japanese-administered Senkaku islands
is worsening. China, which claims them as the Diaoyu islands, is steadily increasing its
penetration around the islands; and that presence has a growing military component to it.
Naval and maritime patrol craft frequently enter the 12-mile territorial limit around the
Senkakus. China now deploys fighter jets near them. China's proclamation of an Air
Defense Identification Zone over and around the islands create a new danger that China
will deploy its fighters directly over the Senkakus in close proximity to Japanese patrol
aircraft. Japan has increased these patrols and has strengthen its naval presence.
The danger that China's penetration around and over the Senkakus will lead to a
military clash is clear. At the Davos international economic conference in January 2014,
the
Financial Times quoted a prominent Chinese participant as advocating the landing of
Chinese on the islands; and Japanese Prime Minister Shinzo Abe stated that the situation
between Japan and China was similar to that between Great Britain and Germany when
World War I broke out. Another historical analogy is the Marco Polo Bridge incident of
July 1937 when Japanese military penetration near Beijing resulted in clashes with
Chinese Nationalist forces and the subsequent full-scale Japanese invasion of China. In
February 2014,, U.S. Navy Captain James Fanell warned at a conference in San Diego
that China has been training for a "short, sharp war" to gain control of the islands
2. The
Japanese Army in 1937 also expected a short, sharp and victorious war against China,
the kind of miscalculation that has plagued major powers from 1914 to Iraq in this
century.
Both China and Japan say that they are interested in a bilateral dialogue, but they
condition this position on contrary positions on whether there is a "dispute" over the
Senkakus. China insists that Japan accept that a dispute exists. Japan rejects defining the
issue as a dispute.
This relates directly to the U.S. role in the issue. Three successive U.S.
administrations have recognized Japanese administrative control and administrative rights
over the Senkakus. They also have asserted that the Japan-U.S. Security Treaty covers
the Senkakus, thus bringing into the picture a direct U.S. defense obligation in support of
Japan's control over the islands. However, U.S. administrations have stated that they
take no position toward the competing Japanese and Chinese claims. This puts the
United States in the position of believing that a dispute exists. The Obama
Administration repeatedly has urged Tokyo and Beijing to resolve the issue through
negotiations. The U.S. Senate passed a "sense of the Senate" resolution in November
2012 reiterating the U.S. position and stating that the United States "supports a
collaborative diplomatic process by claimants to resolve territorial disputes."
3 During his
trip to Japan in April 2014, President Obama reiterated most of these U.S. positions.
A number of experts have urged Japan to deal with this diplomatic impasse by
proposing to China that they jointly take the Senkakus issue to the International Court of
Justice in the Hague and ask the Court to rule on the competing claims. The Japanese
Government has rejected this proposal. It contends that such a proposal would amount to
an admission that a dispute exists.
Japan's position, however, rests on a number of complex factors that are more
important than its legal position on the dispute issue. It seems to me that the Japanese
Government's thinking fails to take these other factors into sufficient consideration. In
this context, it seems to me that the Government so far fails to recognize a number of
benefits and advantages that would accrue to Japan if it proposed to China taking the
Senkakus issue to the International Court of Justice (ICJ). I would cite six advantages.
First, an ICJ proposal would strengthen U.S. support for Japan's overall position
on the Senkakus, including the likelihood of U.S. military support if China should try to
use force to gain control of the islands. Japan would demonstrate that it is heeding U.S.
calls for a diplomatic settlement of the issue. As important, it would show the United
States that Japan was seeking to establish international mechanisms to settle maritime
disputes. This would influence especially an Obama Administration, whose leader
emphasize that the 21st century should involve new, internationally sanctioned means of
nations settling disputes. It also would be an appropriate response to U.S. urgings that
Japan seek to reduce military tensions with China.
Then, there is the question of U.S. military support for Japan through the
application of the U.S.-Japan Security Treaty. While U.S. officials have stated that the
Security Treaty covers the Senkakus, Japanese doubts about the strength of the U.S.
commitment have been reported.
The Economist of December 21, 2013, cited "fears in
Japan that America might not honour its assurances that the security guarantee covers the
tiny, uninhabited Senkakus." Reuters News on March 10, 2014, reported on the
frustration of Japanese defense officials that U.S. defense officials were avoiding the
preparation of military contingency plans for responding to potential Chinese military
acts. President Obama's statements in Tokyo in April 2014 may ease these doubts but
we do not know for how long.
I also can testify to the shakiness within the State Department over making a U.S.
defense commitment to Japan on the Sankakus. In 1996, I wrote for the Congressional
Research Service a report on the Senkakus that concluded that the U.S.-Japan Security
Treaty covered the islands. At that time and afterwards, the State Department repeatedly
avoided questions posed to it as to whether the Treaty did cover the islands. State
Department officials told me that they were unhappy with my report, no doubt because it
made their evasions more difficult. Two years later, the U.S. Defense Department
affirmed my conclusion. But, I have no doubt that the State Department's position on
supporting Japan still is soft.
Finally, recent developments on the Japan history issue have been negative for
U.S.-Japan relations. The Obama Administration and a number of U.S. experts reacted
negatively to both Prime Minister Abe's visit to the Yasukuni Shrine in December 2013
and to the subsequent verbal attack on the United States by a recent appointee to the
board of directors of the Japanese broadcasting company, NHK. He accused the United
States of fabricating war crimes against Japanese leaders during World War II in order to
cover up U.S. war crimes. Tensions over the Japanese history issue remain high with
China and South Korea. An intensification of history issue can only weaken support for
Japan on the Senkakus issue. A Japanese proposal to take the issue to the International
Court of Justice would help to neutralize this negativity.
A second advantage for Japan is that there is a high likelihood-almost a
certainty-that China would reject a Japanese proposal that the two governments take the
issue to the ICJ. The ICJ requires that all parties to a dispute agree to submit a dispute to
the ICJ. Since maritime disputes broke out in the 1990s involving China, the Chinese
Government has taken a hard, unyielding position that it would settle disputes with other
governments only through direct negotiations and that "third parties" should stay out.
China repeatedly has warned the United States not to get involved in these cases. It even
has been reluctant to negotiate with the Association of Southeast Asian Nations
(ASEAN) over its maritime disputes with the Philippines, Vietnam, and Malaysia. Most
recently, China says it will refuse to participate in the case submitted by the Philippines
to the Law of the Sea tribunal in which the Philippines seeks a ruling against China's
claims in the South China Sea. China contends that the Philippines can seek a settlement
only through direct negotiations with China.
There is no reason to believe that China would reverse its position if Japan made
an ICJ proposal. The Chinese Government undoubtedly realizes that if it accepts one
proposal for involvement of an international legal body in any of its territorial disputes, it
would come under pressure to accept international involvement in its other disputes. But,
a Chinese rejection would drew a near unanimous negative reaction from the
international community. Other East Asian states' suspicions of China's intentions
would grow. European Union governments likely would criticize Beijing. Moreover, an
ICJ proposal followed by a Chinese rejection would weaken severely China's current
international propaganda campaign (carried out in numerous countries) to exploit the
Japanese history issue as showing a Japanese plot to "remilitarize." China would be
perceived more as the country seeking to use military power against its neighbors. The
U.S. reaction to a Chinese rejection would be decidedly negative.
The third advantage is that an ICJ proposal would strengthen deterrence against
Chinese military moves against the Japanese in the Senkakus. One should keep in mind
that deterrence in situations like the Senkakus involves more than military measures.
Diplomatic proposals and public rhetoric also send important signals to potential
adversaries. The Chinese Government would realize that a Japanese ICJ proposal and a
Chinese rejection of it would isolate China diplomatically and neutralize China's global
diplomatic-propaganda campaign against Japan. China would also understand the
advantage to Japan of strengthening overall U.S. support for Japan and increasing the
likelihood of U.S. military intervention if China resorted to military force.
A fourth advantage would be to give Japan greater justification for new military
measures around or on the Senkakus if the Chinese military buildup and probes continue.
The Japanese Government would need such justification to deal with political elements at
home that are reluctant to confront China over the Senkakus. The Obama Administration
no doubt would continue to urge Japan to exercise military restraint; but an ICJ proposal
also no doubt would weaken U.S. opposition to rationally conceived military measures by
Japan.
Fifth, a Japanese ICJ proposal would give Japan an opening and credibility to
intervene in the Philippines' suit against China before the Law of the Sea tribunal. The
Philippine suit is an extensive challenge to China's maritime claims in the South China
Sea, including Beijing's nine-dash line. Lawyers who are representing the Philippines
before the tribunal have said that third governments could submit opinions to the tribunal
on the Philippine suit. Japan's role could be crucial since the United States is not a party
to the Law of the Sea Treaty and thus could not submit an opinion to the tribunal. The
Obama Administration has increased its criticisms of China's claims to the South China
Sea and undoubtedly would welcome Japan's involvement in support of the Philippines.
An ICJ proposal, too, would parallel the Philippines' proposal to establish international
mechanisms to resolve maritime claims and disputes. Japanese involvement in the
Philippines' suit would demonstrate Japan's commitment to its January 2013 agreement
with the Philippines for "maritime cooperation" and "strategic partnership."
The sixth advantage of an ICJ proposals for the Senkakus would be Japan's
establishment of a record of consistency relative to its earlier proposal to South Korea
that they take their dispute over islets in the Sea of Japan (Takeshima to Japan, Dokdo to
South Korea) to the International Court of Justice. The consistency and citation of dual
ICJ proposals for the two island groups would strengthen further Japan's credibility on
both issues. An ICJ proposal for the Senkakus would blunt and probably silence the
South Korean criticism of Japan's ICJ proposal for Takeshima-Dokdo as a "threat."
Little known is the fact that the Japanese Government has stated in reference to
the Senkakus that it accepts the "compulsory jurisdiction" of the International Court of
Justice. In acknowledging this, Japanese officials have called on China to accept
"compulsory jurisdiction." However, Japanese officials have stopped short of making a
formal proposal to China to jointly take the issue to the ICJ on the basis of accepting
"compulsory jurisdiction." Instead, they have called on China to make the initial
proposal, promising that Japan would accept it. Japanese Foreign Minister Koichiro
Gemba wrote in the
International Herald Tribune on November 21, 2012, that China
should take the initiative toward the ICJ because "it is China that is seeking to challenge
the status quo."
The Japanese Government has done little to publicize this position even in the
face of China's international propaganda campaign. Moreover, Japan's position comes
close to being a contradiction in accepting ICJ jurisdiction but holding that only China
must make a proposal to take the Senkakus issue to the ICJ.
It seems to me that the issue of the role of the International Court of Justice in the
Senkakus issue is an important test of whether the Japanese Government is able to
develop what I call "smart diplomacy." Smart diplomacy would maximize diplomatic,
political, propaganda, and military advantages for Japan in this complex set of factors.
Today, it is China that is acting assertively in all of these areas. Japan needs "smart
diplomacy" to counter this comprehensive Chinese strategy and to counter further
Chinese pressure on Japan's physical and military position around the Senkakus.
____________________________
| 1 | The views expressed are solely those of the author. |
| 2 | David Ignatius, Stormy seas in the Pacific, Washington Post, February 27, 2014, p. A17. | |
| 3 | The Nelson Report, November 30, 2012. |
This page last updated May 6, 2014 jdb