Jerome Cohen Awarded PCI Building Bridges Award

On February 28th, the Pacific Century Institute awarded Professor Jerome Cohen the 2013 PCI Building Bridges Award, established to honor people who have enhanced relations between Americans and Asians and who exemplify PCI’s commitment to building bridges to a better future. Former awardees include Kathleen Stephens, U.S. Ambassador to the Republic of Korea 2008-2011; Harold Brown, US Secretary of Defense 1977-1981; Maestro Lorin Maazel of the New York Philharmonic; and Christopher Hill, US Assistant Secretary of State 2005-2009.

Upon accepting the award, Professor Cohen delivered the following speech:

EAST ASIAN-AMERICAN RELATIONS: REMINISCENCE AND REFLECTION

Jerome A. Cohen

I am grateful to the distinguished Pacific Century Institute, Spencer Kim, Don Gregg and their colleagues for giving me such a welcome opportunity to think about “building bridges to Asia” – past, present and future. I feel like the man who discovered he’d been writing prose all his life! I hope you will accept my remarks as weightier, if not more humorous, than those of the late Conrad Hilton. When asked to reveal the lessons of his forty years in the hotel industry, he quipped: “Always keep the shower curtain inside the bathtub”!

Allow me at the outset a few reminiscences and thoughts about the past.

When, over half a century ago, I  started to combine law teaching with research on China, some people were supportive, some thought I must be having a nervous breakdown to throw away a promising career in order to study a country so hostile to the United States, and others simply gave me poor advice. I especially remember three bits of bad advice: 1)Academic life is not a good base for activism; 2)Law will never be important to the peoples of China and East Asia; and 3) Chinese do not care about the niceties of legal concepts and terminology. In short, they said, I was barking up the wrong tree.

Certainly, as the examples of Felix Frankfurter, John K. Fairbank and many others in the respective fields of law and Asian studies have shown, the independence, security of tenure and access to knowledge of academic life have enabled many a professor to be a participant as well as an observer. Those of us who opposed American military involvement in Vietnam benefited enormously from the university presidents and deans who defended our right to speak out. Moreover, in free countries, universities have often permitted faculty to offer shelter to foreign political reformers forced to flee their own country’s repressive government. I remain very thankful to Harvard for inviting Korea’s Kim Dae Jung, Taiwan’s Annette Lu and the Philippines’ Ninoy Aquino for periods of residence and learning that gave them both protection and intellectual stimulus while awaiting political progress at home. More recently, NYU has generously welcomed China’s valiant “barefoot lawyer,” the blind activist Chen Guangcheng.

The observation that law was and would continue to be relatively unimportant to East Asian countries proved equally inaccurate. When in 1960 I began my study of Asia, Japan was already refuting this proposition, demonstrating that Confucian/Buddhist culture was no barrier to democracy, human rights and the rule of law. Within three decades, both Taiwan and South Korea provided further impressive evidence as each peacefully overcame oppressive dictatorship. I returned only yesterday from taking part in a unique exercise in which Taiwan’s government, excluded from United Nations’ regimes, nevertheless asked foreign international law specialists to evaluate its progress in implementing the provisions of the two major international human rights covenants.

Today, over sixty years after establishment of its government, perhaps the most important, controversial and difficult problem confronting China’s new leadership is what to do about law and justice. Can Xi Jinping and his comrades begin to transform their “socialist legal system with Chinese characteristics” into a credible instrument for coping with immense challenges, such as corruption and environmental degradation, while satisfying the rising popular demand for not only social and economic fairness but also political freedoms and constitutional and legal justice? Vietnam is currently in the midst of similar ferment. In each country the Communist Party confronts the issue whether it will allow the development of an autonomous legal system whose proudest achievement is an independent judiciary.

The third argument – that Chinese are indifferent to legal ideas and language – also turned out to be spurious. Echoes of the millennial debates between Confucianists and Legalists can still be heard throughout East Asia. Those of you who have diplomatic experience with Chinese officials, whether from Beijing or Taipei, are undoubtedly aware of the significance they have long attached to the articulation of principles and linguistic nuance. Think of the great 1972 U.S.-China Shanghai Communique, for example. The same is true in the domestic legal systems of the Mainland and Taiwan. At the moment, both foreign and domestic scholars are scrutinizing how the large number of carefully crafted and negotiated terms and phrases in China’s new Criminal Procedure Law are being interpreted and applied in practice.

THE NEED FOR NEW BRIDGES

Now for some controversial reflections about the need to build new bridges in East Asian-American relations. As we all know, this is a dangerous time for several reasons. Let me briefly touch on new ideas in two areas, despite the obvious obstacles to their implementation.

First, North Korea. It is a cliché, in light of the DPRK’s recent third nuclear test, to call for a fresh but more hostile response to the North, and many proposals are being made to this effect. Impatient calls for “regime change” are stronger than ever, despite horrendous risks. At a minimum, there is substantial appetite for much harsher condemnations of and UN sanctions against Pyongyang, even while acknowledging that they are unlikely to be any more effective than their predecessors. Fortunately, some voices urge caution and oppose hasty overreaction, and a few wise counselors, recognizing the increasing danger of our long failure to bring the North fully into the world community, are groping for a more positive approach that might radically improve the situation. I am glad to see that both Spencer Kim and Don Gregg are among them. Of course, realistic suggestions for halting the present escalation of tensions and beginning to reverse the moribund policies of both sides are hard to come by, particularly in view of the reservoir of ill will and mistrust that has accumulated during more than six decades.

My own preference dates back to the critical year 1972 when my family and I were living in Japan. After many months of discussions with North Korean officials based in Tokyo, my wife Joan and I, together with our three middle school sons, visited the DPRK for two weeks. It was at that optimistic time, marked by the then recent Nixon-Mao Sino-American breakthrough, that the idea of a comprehensive “grand bargain” with Pyongyang first seemed conceivable. The goal then, as still today, was two-fold: first, to gradually assuage the deep sense of strategic insecurity that Pyongyang understandably harbors and the reciprocal insecurity necessarily felt by South Korea, Japan, the United States and even China vis-a-vis the fiercely independent DPRK regime; and second, to go well beyond required arms control and security arrangements by welcoming the DPRK as a full member of the world community, in politics, economics and other respects, including normal diplomatic relations with the U.S. and its allies.

That early family visit – only the third to the DPRK permitted by the United States (New York Times and Washington Post correspondents preceded us) – made it clear that the North had no Zhou Enlai to smooth the way toward dramatic reconciliation. Several visits I made to the DPRK during 1997-98, however, revealed a government much better prepared to reach out to the world, especially for economic cooperation. Also in 1998, at the invitation of the Council on Foreign Relations, where I then headed Asian affairs, the DPRK sent a small group to Washington and New York for groundbreaking business and political talks. That led to a series of training seminars in international trade and investment law for North Korean officials, but held in China, with the co-sponsorship of NYU Law School and the Asia Foundation as well as our Chinese hosts. It also led two American multinational companies to explore business transactions in Pyongyang. Yet these promising sprouts died with the end of the Clinton Administration.

I mention these previous private initiatives because private initiatives may represent the best way forward with the North at this time. I hope that, given its farsighted record and board of trustees, PCI might consider taking the lead in convening, as soon as possible,  a series of Track 2 or Track 1.5 dialogues, first with China together with Japan, South Korea and the United States, and then with representatives of the DPRK as well as these other countries to explore the ingredients of a “grand dialogue.” I am confident that appropriate co-sponsors can be found outside the DPRK and hope that Pyongyang will respond favorably to the prospect of such meetings, although it may insist, at least at the outset, on only a bilateral dialogue with Americans. In any event,  NYU’s US-Asia Law Institute would be proud to be involved.

To be sure, the obstacles to the success of a Grand Bargain with the DPRK are probably greater than ever, both in this country and in Northeast Asia. Yet it may be possible to revive the atmosphere of the final days of the Clinton Administration, the last time when a breakthrough with the DPRK seemed possible. Indeed, perhaps former President Clinton and former Secretary of State Albright can be enlisted in our endeavor.

The second and final area I want to touch upon is the crisis in the East China Sea and South China Sea concerning disputes over both territorial sovereignty and the delineation of maritime boundaries. The danger of accidental or intentional armed conflict grows daily as an increasingly nationalistic, rising China asserts its international law claims in a frighteningly muscular fashion that has incited nationalistic reactions in other contending states.

In the East China Sea, during the past three years the forceful manner of Beijing’s assertions of sovereignty over the Diaoyu (Senkaku) islands has backfired. It has alienated China’s neighbors and prejudiced their views about the validity of China’s underlying legal claim, which on the merits may be at least as persuasive as Japan’s. The United States, because of our security treaty with Japan, is especially concerned that it may be drawn into any conflict.

Beijing’s similar maneuvers over island sovereignty disputes in the South China Sea have also damaged its relations with adjacent ASEAN states. But the situation there has been exacerbated by its broad invocation of and vague justifications for the so-called “nine-dash line” in order to claim jurisdiction over most of the waters of the South China Sea.  That claim has aroused the anxieties of the United States, Japan, India and other maritime powers as well as those states within the region.

If these disputes are allowed to fester, the risk of armed conflicts is high. Yet how should they be settled? In principle each of the contending parties maintains that it is prepared to enter into negotiations over maritime boundaries but not over the sovereignty of islands that they occupy but that are claimed by others. The occupants of the disputed East Asian islands usually argue that there is no “dispute” and therefore nothing to negotiate about or to seek to settle by other means. This is the Japanese position about the Senkaku (Diaoyu), also claimed by China; the Chinese position about the Paracels, also claimed by Vietnam; and the South Korean position about Dokdo (Takeshima), also claimed by Japan. Failure to settle these territorial issues , however, has made the negotiation of mutually acceptable maritime boundaries more difficult.

Can these perilous territorial stalemates be broken? Of course they can if the disputants are willing to submit the claims they voice with such confidence to  determination by an impartial international tribunal. That, however, is not a step that major powers take lightly, especially if the dispute involves a matter of any importance and if public opinion is inflamed. Resort to third party decision-making surrenders control over the outcome, while negotiation and conciliation do not. Confucian-influenced East Asian nations have had a traditional, cultural distrust of arbitration and adjudication in lieu of negotiation or conciliation. There is also a lingering historical suspicion that international tribunals might not give them a fair hearing because of racial considerations. In the case of Asian communist countries there is additional distrust based on ideological and political grounds. China has consistently made clear that it is not prepared to accept international adjudication or arbitration of sovereignty disputes, although for the past three decades it has posted judges to take part in the International Court of Justice.

Japan is slightly less adamant in this respect. It has expressed willingness to take its claim to Takeshima (Dokdo) to the International Court of Justice (ICJ), perhaps because it was certain that the occupant, South Korea, would refuse the challenge. Until late last year, however, it rigidly clung to the position that there can be no “dispute” over the Senkaku (Diaoyu), which Japan occupies. Then, startlingly, on the eve of his and his party’s departure from office late last year, Japan’s Foreign Minister Gemba, in an International Herald Tribune op-ed, challenged China to take its claim to the Senkaku to the ICJ. He boasted that Japan always supports international law and, unlike China and the United States, has accepted the ICJ’s “optional protocol” requiring it to agree to engage in litigation brought by any other state that has also accepted the ICJ’s compulsory jurisdiction. This appeared to suggest implicit or conditional abandonment of Japan’s long-standing and increasingly indefensible position that there is no “dispute” over the Senkaku.  Unfortunately, virtually no one took note of Gemba’s statement, and Prime Minister Abe’s new, more nationalistic,  LDP government has ignored it and renewed Japan’s traditional stand toward the islands.

More recently and more momentously, a genuine break in the South China Sea logjam has occurred. The Philippine Government has been jousting with China over ownership of some of the Spratly islands and other modest territorial features near its shore, as well as China’s expansive claims over sea boundaries. On January 22nd, it stunned informed circles by challenging not China’s territorial claims but some of its maritime claims, especially the “nine-dash line,” before an arbitral tribunal authorized by the United Nations Law of the Sea Convention (UNCLOS) to which both the Philippines and China adhere. Unlike the ICJ system, under UNCLOS all state-parties by virtue of their membership agree to litigate  or arbitrate maritime claims brought against them in an UNCLOS tribunal unless they can persuade the tribunal that the claims fall within certain exceptions designed to free them from this obligation. Following prescribed procedure, the Philippines accompanied its claims with a carefully-prepared brief spelling out the arbitral tribunal’s jurisdiction, the basis for its claims and the identity of the arbitrator that it is entitled to appoint as one of the five arbitrators who will constitute the tribunal.

This presented China with a difficult challenge. Would it respond to the Philippine complaint by the February 21 deadline,  appoint the arbitrator to which it is entitled and defend its case? Or would it thumb its nose at the proceeding and endure the condemnation of many UNCLOS members and others?  Unfortunately, the People’s Republic chose the latter course, criticizing the Philippines for choosing to go to arbitration rather than continuing the long and thus far fruitless sparring in which China and the ASEAN states have been engaged over developing a code of conduct for resolving their disputes.

China’s spurning of the UNCLOS dispute resolution process does not end the matter, for the UNCLOS system provides for the president of its Law of the Sea Tribunal, who is currently a Japanese expert, to appoint an arbitrator on behalf of the non-responding party and, if necessary, the other three required arbitrators as well, so that the dispute can proceed to be heard even in China’s absence. The case is an embarrassment not only to China but also to the United States, which has thus far shamelessly resisted all efforts to persuade it to ratify UNCLOS and take part in the system, although it purports to observe most of the UNCLOS provisions in practice.

Needless to say, I was delighted with the Philippines’ daring resort to international law and disappointed, if not surprised, by China’s response. In an article published last October in Hong Kong’s South China Morning Post and Taiwan’s  China Times, I urged all the East Asian states to take their territorial and maritime boundary disputes either to the ICJ or some other international tribunal or to establish their own regional tribunal to handle these matters.  The Philippine claim does not directly advance the resolution of its territorial disputes with China, but it is a major first step for all states eager to witness a rational and fair solution to the current crisis rather than one reflecting the threat or use of force.

A regional tribunal would take some time to establish but, like the ICJ and UNCLOS systems, would have an immediately beneficial effect if all the states that begin negotiations to establish it would agree at the outset to submit their claims to it, thereby diverting the claimants from their current reckless game of “chicken.”

Whatever the precise path or paths chosen by the disputants, submission of all territorial and maritime disputes to an impartial third-party decision-maker will constitute progress towards a more peaceful and rules-based world rather than one where might makes right, as the Philippine Government recently noted in filing its now famous submission. This would not be the first time that international law and legal institutions come to the rescue.

Many other issues deserve the attention of this audience, including the protection of human rights in East Asia and the political and legal aspects of the Taiwan, China, U.S. relationship. Perhaps we can discuss them during the question period. Many thanks for your attention.

PCI’s coverage of the award ceremony can be found here.
For more about the Pacific Century Institute, go to http://www.pacificcenturyinst.org/.

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