Jerome A. Cohen. A Wiser Course. China Times

October 4, 2012

By April 1972, as the United States prepared to return to Japanese administration the eight uninhabited islets known as the Senkakus in Japan and the Diaoyus in China, the Sino-Japanese dispute over their ownership had reached fever pitch. Nationalism was in full flight not only in Japan, but also in mainland China, Taiwan and Hong Kong. When the Harvard Club of Japan invited me to lecture on the controversy, mine was the only voice in the country, other than that of a Kyoto University philosophy professor known for his communist sympathies, to publicly suggest that Japan had less than an airtight case to support its claim.

Several weeks later, as I stood with my apparently even-tempered Chinese escort on a hilltop overlooking Beijing’s Ming dynasty tombs, I asked his views on the subject. This sent him into a frenzy. “We will fight the Japanese aggressors to the death to defend every inch of our sacred soil,” he said. Yet, when I pointed out to him that, just days earlier, Japan had resumed control of the islands, my escort suddenly reverted to his previous equanimity. “Well,” he said, “Chinese are patient people. We can settle this problem any time in the next 500 years!”

I thus witnessed the two sides of contemporary China’s attitude towards international relations – righteous nationalism and rational pragmatism. Several years later, Deng Xiaoping advised leaving the Senkaku/Diaoyu dispute to the next generation, which might prove wiser than his generation. Afterwards, in finding an imaginative solution to the even more sensitive problem of Hong Kong’s future, Deng showed how to turn nationalism into pragmatism to the benefit of China’s development and its foreign policy. Unfortunately, neither his successors nor their Japanese counterparts have shown similar wisdom in their ever more intense island dispute, and East Asia now confronts an increasingly grave security crisis.

New leaders are about to emerge in northeast Asia. Will they muster the innovation, boldness and domestic political power required to meet the region’s most dangerous challenge to peace in over half a century?

Prospects are discouraging. No far-sighted, strong Deng-type leaders are on the horizon in China, Japan or South Korea. Playing the nationalist card is more attractive to domestic contenders for power than taking the career risks of advocating enlightened compromise. Yet, nationalism is a dangerous game whose political, economic, diplomatic and military costs are daily more obvious. Perhaps the only hope is that the situation is becoming so serious that it may drive Chinese and Japanese elites, desperate to avoid disaster, to solutions previously deemed unlikely.

Northeast Asians might profitably seek to emulate the policies of post-second-world-war Western Europe. China and Japan should follow the model of France and West Germany in determinedly leading their people away from historic grievances and towards a regional community that creates institutions for co-ordinating policies and forging co-operation. This would be a complex, lengthy process, but an urgent first step might be the establishment of a regional tribunal for the settlement of East Asian territorial disputes.

To be sure, the International Court of Justice is fully capable of resolving the host of island ownership conflicts that plague the East China Sea and the South China Sea. Yet East Asians have tended to distrust international judicial and arbitral tribunals as Western dominated.

When at a dinner meeting with Zhou Enlai and his foreign policy colleagues in June 1972, eight months after the People’s Republic of China entered the United Nations, I suggested that Beijing should begin participating in the international court, my hosts laughed uproariously at the idea of joining that “imperialist” institution. It took them over a dozen years to send their first judge to The Hague. In recent decades, distinguished experts from both China and Japan have served as judges on the international court and other international tribunals, but neither government has endorsed international adjudication or arbitration for resolving disputes over islands that it occupies.

Although Japan has offered to refer to the international court its long-standing dispute with South Korea over Takeshima, the island group that Seoul occupies and calls Dokdo, and although at the UN Prime Minister Yoshihiko Noda recently acknowledged the relevance of international law to territorial disputes generally, Japan nevertheless refuses to even recognise the legal existence of its obvious East China Sea dispute with China.

Chinese sources have occasionally hinted that China might be prepared to accept international determination of its claim against Japan. Yet China’s attitude towards dispute resolution concerning islands that it occupies in the South China Sea is similar to that of Japan concerning the Diaoyu/Senkaku issue. Beijing claims it is willing to settle its South China Sea conflicts with each of its neighbours on a bilateral basis, but Vietnamese officials, for example, state that China rejects any attempt to discuss the legal status of its occupation of the Paracel Islands.

It is time for East Asia’s two great powers to abandon such blatantly inconsistent and reckless posturing and start to deal with island disputes in the mature, far-sighted way they often deal with other issues. Emotional vows to safeguard national sovereignty, one-sided advertisements, organised mass protests, self- destructive economic sanctions, and dramatic coastguard skirmishes are threatening to undermine all that has been accomplished in the region. Respected voices not only in China and Japan but also in Taiwan, South Korea, Southeast Asia and the West are beginning to advocate a saner course. A creative, courageous resort to international law can light the way.

Wise leaders of China and Japan can defuse these territorial tensions by agreeing to persuade neighbouring nations to join them in submitting all island ownership disputes, if not to the International Court of Justice, then to an impartial regional tribunal that can be established for the specific purpose of deciding their claims in a neutral forum.

There is much room for negotiation over how to ensure such a tribunal’s competence, independence and fairness, but this is a feasible task that will immediately channel national energies into a constructive path.

This article was published in the South China Morning Post on October 5, 2012 under the title “How Asia Can Defuse Island Disputes.”  It was published in Chinese in Taiwan’s China Times on October 4, 2012.  Illustration from SCMP.(简体中文

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations.