May 29, 2014
Editor’s Note: The following is a May 28, 2014 draft of a speech Jerome A. Cohen will deliver on June 20, 2014 in Danang, Vietnam at an international workshop on the South China Sea co-organized by Pham Van Dong University and Danang University. The title of the speech is “Lawfare or Warfare? Let Impartial Tribunals Help Cool East Asia’s Law of the Sea Crisis.” The draft will be amended in light of subsequent events, but is released now with the consent of the conference’s organizers.
Dear Colleagues: No conference could be more timely nor more appropriately located than our discussion here today in Danang. I am grateful to our hosts for the opportunity to present a few of my ideas for facilitating resolution of some of the disputes that concern us.
We have long known that the many disputes relating to the South China Sea (SCS) are far too complex to allow for simple solutions. At least several methods of dispute resolution will be necessary for dealing with different times, places and issues. In principle, of course, negotiation, whether multilateral or bilateral, remains preeminent. Yet, as is obvious to all, negotiation has its limits and often needs to be supplemented.
Please regard my brief talk today as a plea for the disputing countries to give a higher priority to the role that international adjudication and arbitration may play in the settlement process.
Of course, I am familiar with the traditional refusal of states, especially powerful states including the United States, to lose control over the outcome of major disputes by allowing an impartial third party to make a final determination. Yet circumstances and views can and do change, and I believe that the time has come for all the main players in the SCS to recognize, as the Philippines already has, that, in some of the situations currently confronting them, the advantages of resorting to impartial third party determination may outweigh the risks.
I believe that the current increasingly dangerous Sino-Vietnamese standoff concerning sovereignty over the Paracel Islands is such a situation. China maintains that it is prepared to negotiate with Vietnam over the crisis created by its placement of an oil rig offshore the Paracels. Yet Beijing thus far reportedly refuses to negotiate about its asserted territorial sovereignty over the Paracels, the very issue that is at the heart of the offshore dispute.
The PRC and Vietnam have successfully negotiated boundary disputes in the Gulf of Tonkin and on their land border, but China, the occupier of the Paracels, maintains that sovereignty over these maritime features is not open for discussion. China refuses to recognize the existence of a “dispute” over the Paracels since it claims “indisputable sovereignty” over them. This posture, which is similar to that of Japan’s position on the Senkaku/Diaoyu islands that it occupies, would also exclude mediation or conciliation, even by ASEAN , assuming that ASEAN were prepared to make the effort.
Many observers have suggested that the parties could resolve this territorial dispute by shelving it but nevertheless agreeing to jointly develop the presumably valuable undersea resources lying offshore. Yet this idea is much easier to suggest than to implement, precisely because of the deep disagreement and distrust generated by the conflicting territorial claims.
Indeed, the evident failures of the 2011 and 2013 Sino-Vietnamese agreements calling for cooperation in mutual development vividly demonstrate this truth. Although the brief 2011 agreement emphasized no fewer than a dozen times that cooperation would be limited to “sea-related” matters, that cooperation failed to materialize because the most important “sea-related” matter inevitably turned out to be sovereignty over the adjacent land!
Resort to force, ever on the horizon today, seems tempting to both parties, especially China, which did use force to wrest control over the Paracels in 1974 and oust Vietnam from the Spratly Islands’ Johnson South Reef in 1988. China is far stronger militarily today and increasingly assertive regarding its South China Sea claims, against not only Vietnam but also other states in the area.
This is why in January 2013 the Philippines, in circumstances similar to those of Vietnam today, decided to initiate its now famous arbitration against China under the UNCLOS dispute resolution system to which China and the Philippines, as well as Vietnam, are committed. In seeking to protect itself against increasingly assertive Chinese actions, the Philippines turned to international law, not merely as a rhetorical device for articulating and bolstering its diplomatic position but as a means of obtaining an impartial determination of the two countries’ maritime disputes.
International law has always been a defensive weapon more valuable to the weak than the powerful, as imperial China perceived when it first imported western international law in the 1860s. Neighboring states wise enough to invoke international adjudication or arbitration in territorial or maritime disputes that could not be settled through dialogue and diplomacy alone have sometimes benefited greatly from appealing to international law. In addition to obtaining an authoritative impartial determination of complex legal issues, they avoided violent incidents, wars and other insidious consequences of nationalism run amok, while trade, investment, tourism, cultural exchange and other cooperation were able to continue.
Often, however, political leaders fear that an impartial tribunal might reject their blustery boasts that international law totally supports their nation’s position. To them the domestic and international political risks of a fair decision seem unacceptable. Yet a third-party decision need not result in an “all or nothing” conclusion. The kinds of issues that elude negotiated solutions between neighbors but are taken to impartial determination frequently yield not 100 percent victory for one side or the other but nuanced decisions that are in effect carefully-balanced compromises that reflect the complexity of the claims considered. This is true of some of the more imaginative judgments of the International Court of Justice as well as the awards of international arbitration tribunals.
In October 2012, in Hong Kong’s South China Morning Post and Taiwan’s China Times, I published an essay inspired by the intensifying Sino-Japanese hostility in the East China Sea. Titled “A Wiser Course,” it urged the nations of East Asia to end their dangerous tit-for-tat provocations over disputed islands before hostilities broke out and to allow an impartial tribunal to decide on their claims. In words that also echoed the situation in the South China Sea, I described the circumstances of the East China Sea as follows:
“Emotional vows to safeguard national sovereignty, one-sided advertisements, organized mass protests, self-destructive economic sanctions, and dramatic coastguard skirmishes are threatening to undermine all that has been accomplished in the region.”
I urged China, Japan and the other East Asian states, if they did not wish to submit their disputes over territorial sovereignty to the ICJ, to establish an impartial regional tribunal as a neutral forum for deciding island territorial disputes. I emphasized that, instead of beating the drums of nationalism by reckless posturing, it is time for East Asian states to deal with islands in the same mature way they often deal with other international disputes. This would channel national energies into a constructive course.
I was disappointed in the informal reactions to my suggestion from some former American diplomats with long experience in East Asia. They argued that resorting to international legal institutions could only make difficult matters worse. Yet, to my amazement, less than a month later, then-Japanese Foreign Minister, Koichiro Gemba, published an op-ed in the International Herald Tribune that challenged China to test its claim to the Senkaku/Diaoyu islands by launching a suit against Japan before the ICJ.
Japan, Gemba proudly noted, had demonstrated greater faith in international law than either China or the United States by accepting the ICJ’s compulsory jurisdiction. This pledged Japan to accept adjudication by the ICJ of any claim brought against it by another country that had also accepted the ICJ’s compulsory jurisdiction. If China is so confident of its legal position about the Senkaku/Diaoyu, he asked, why doesn’t it sue Japan before the ICJ?
I was excited by Gemba’s statement, which seemed to promise an important step toward what my diplomat friends had dismissed as an “unrealistic” and “unhelpful” suggestion. Japan had, of course, earlier sought to take South Korea to the ICJ in their long-standing dispute over the rocks called Dokdo/Takeshima, but the ROK, being the occupier of the disputed territory, showed no interest and is under no legal obligation to accept adjudication.
What was exciting about Gemba’s op-ed was that Japan, despite the fact that it is the occupier of the disputed Senkaku/Diaoyu, was agreeing to be taken to the ICJ, unlike the ROK. And, by going to the ICJ, Japan would finally be abandoning its increasingly untenable, formalistic view that this Sino-Japanese dispute is not a “dispute.”
The Gemba op-ed provided my first ray of hope that the nations on China’s periphery might see the virtue of resorting to international legal tribunals in their offshore disputes with China. Foreign Minister Gemba’s government, however, soon left office in favor of the Abe government, and I was skeptical, given Prime Minister Abe’s reputation as a nationalist, that his regime would endorse the Gemba statement, which had attracted surprisingly little attention.
Then came a more stunning development. In January 2013, the Philippines announced that it was beginning an arbitration against China under the UNCLOS dispute resolution system on a number of South China Sea issues concerning the interpretation of UNCLOS.
Unlike Gemba’s statement, which at most was an informal diplomatic dare, albeit by a great power, the Philippines’ action was a formal legal challenge to China. It questioned China’s interpretation of Beijing’s rights under UNCLOS, including the relationship of UNCLOS to the PRC’s notoriously expansive but vague “nine-dashed line.” Suddenly, thanks to the bold Philippine venture, the idea that China’s neighbors might defend themselves by invoking international law before an impartial international tribunal had entered the real world!
I was disappointed, of course, but not surprised, at the PRC’s refusal to accept the challenge of the UNCLOS arbitration. The respondents in previous UNCLOS arbitrations had appeared before the tribunal to attempt to rebut the case against them, including by claiming that the tribunal lacked jurisdiction. China, sadly, decided to be the judge of its own case and declined to answer the Philippine claims.
Fortunately, UNCLOS provisions anticipate this possibility and authorize continuation and completion of the arbitration even in the absence of the respondent. If the tribunal should decide that it does have jurisdiction over any of the issues before it, and that the Philippines has proved the case with regard to such issues, China will then have to decide whether to respect the tribunal’s award or to incur the condemnation of the international community by rejecting it.
To the extent that the tribunal assumes jurisdiction, it holds out the promise of clarifying some important provisions of UNCLOS. For instance, to what degree do historic claims, such as China appears to make, survive UNCLOS? And what should be the proper legal test under UNCLOS Article 121 for distinguishing between an “island,” entitled to an exclusive economic zone (EEZ) and a continental shelf, and a “rock”, entitled to merely a territorial sea? Answers to such questions should not only facilitate the bilateral negotiations between China and the Philippines but also help the many other states, in Asia and elsewhere, that confront similar issues.
The Philippine initiative spurred my hope that other nations troubled by China’s offshore claims and the robust manner by which they are being asserted would take similar legal action. Japan is an obvious candidate. Instead of relying solely on its impressive defense establishment, its security treaty with the United States and possible resort to economic sanctions and other measures to repel PRC claims, the Abe government retains the option of implementing the Gemba gambit, regarding not only its territorial dispute with China but also Sino-Japanese UNCLOS issues in both the East China Sea and South China Sea. Yet to date it has remained silent on these matters. How should we interpret this silence?
Interestingly, in April 2013, I was told by Japanese Foreign Ministry experts that, contrary to what some American Asia-watchers believed, the Gemba statement had not been solely his individual initiative. It was not merely the public relations gesture of a politician about to leave office. Rather, they maintained, it was a carefully considered official proposal that, at Gemba’s request, had been provided to him by legal specialists within his ministry. This made the status of the Gemba proposal, to which I have seen no Chinese response, a subject of even greater importance.
Very recently, when questioned about the status of the Gemba op-ed, a very senior Japanese diplomat emphasized, in a conversation that cannot be attributed to him, that the Abe government has never repudiated Gemba’s view. This, he contended, means that it stands as the official policy of the Japanese government. At a subsequent public meeting of the Japan Society in New York, former Foreign Minister Yoriko Kawaguchi responded to a question in the same vein.
In addition to suggesting that Japan and China might deal with their territorial dispute before the ICJ, Japan has another East China Sea option involving China. It can decide to seek a determination by an UNCLOS tribunal of various important law of the sea questions relating to the Senkaku/Diaoyu dispute, such as whether, under Article 121.3 of UNCLOS, the features in controversy should be deemed “rocks” entitled to only a 12-nautical mile territorial sea, or “islands” entitled to a 200-nautical mile EEZ and a continental shelf. A decision that they are merely “rocks” would greatly shrink the economic and even the political significance of the territorial dispute over who owns them. This would be a welcome contribution to the ultimate dispute resolution process.
Japan also has a South China Sea option in addition to its East Asian options. Despite the fact that Japan does not border on the South China Sea, it has a great interest both in preserving freedom of navigation in that body of water, which is vital to Japan’s commerce and security, and in maximizing Japan’s access to the area’s economic resources. Vindication of China’s “nine-dashed line,” whatever its precise scope might be, would, at a minimum, vastly expand the area subject to a Chinese EEZ. And China, as illustrated by its clashes with American reconnaissance ships and planes, claims broad powers over its EEZ. I suggest that Japan consider initiating an UNCLOS arbitration challenging the “nine-dashed line,” as the Philippines has.
The United States, of course, has equal reason to oppose the “nine-dashed line” because it too has a major interest in both freedom of navigation in the South China Sea and access to its economic resources. Unfortunately, since it still has not acceded to UNCLOS, the U.S. is precluded from taking advantage of the UNCLOS dispute resolution system, even though President Obama recently told President Aquino that the U.S. “supports his decision to pursue international arbitration concerning territorial disputes (sic) in the South China Sea.” To be sure, the U.S. could initiate suit against China on this ground before the ICJ, but China is not obligated to accept ICJ jurisdiction in any case, and the U.S. itself has a less than impeccable record regarding the ICJ. UNCLOS, unlike the ICJ, offers a more realistic, yet far from certain, possibility for obtaining a binding decision against a China that remains determined to resist third-party adjudication and arbitration, as the Philippine case suggests.
My hope is that the recent flare-up over China’s placement of the oil rig offshore the Paracels will provide the U.S. with sufficient domestic political impetus to motivate the Senate to “advice and consent” to U.S. participation in UNCLOS. That, however, will require much stronger leadership than President Obama has thus far demonstrated in this matter.
What about Vietnam? For many reasons, it is far more difficult for Vietnam than for the Philippines, Japan and the U.S. to seek the assistance of an international tribunal regarding claims against China. Yet recent official statements suggest that, in view of the surprising and ongoing offshore oil rig controversy, the Vietnamese government is moving closer to adopting this choice. Such a course might help to placate domestic protesters, who are prohibited from further violent expression of their opinions. A recent Reuters report, for example, quotes a patriotic Vietnamese as saying that “we already signed a letter to request the government to bring China to the international courts.”
Vietnam’s Prime Minister Nguyen Tan Dung subsequently made world headlines on this point. On May 22, in a written response to the Associated Press during his highly-publicized and symbolic Manila visit demonstrating political solidarity with the Philippines in dealing with China, he stated: “Like all countries, Vietnam is considering various defense options, including legal actions in accordance with the international law.” Dung did not indicate what legal actions were being considered, but at his news conference with President Aquino the same day he stated that “the president and I shared deep concern over the current extremely dangerous situation caused by China’s many actions that violate international law.” Philippines Foreign Secretary Albert del Rosario openly urged Vietnam to “make an assessment as to whether resorting to legal means is promotive of their national interest,” and more recent statements indicate that Vietnam may well either seek to join the Philippine case or initiate its own UNCLOS arbitration.
Actually, of course, Vietnam has to consider at least two different international legal actions. Like Japan, it can choose either or both, depending upon the issues it wishes to pursue.
If, for example, Vietnam wants to make use of adjudication to foster its challenge to China’s exercise of sovereignty over the Paracels, unless the parties agree upon another impartial institution, Vietnam’s claim would have to go before the ICJ. Territorial sovereignty, as we have seen, is generally not considered to be a matter for UNCLOS.
China will surely not consent to an ICJ effort, since, unlike the UNCLOS situation, China has made no treaty commitment to accept ICJ jurisdiction in any dispute. Yet Vietnam may nevertheless find it worthwhile to try to invoke the aid of the ICJ, not only to placate domestic opinion but also to demonstrate to the world its sincere desire for a peaceful, impartial settlement.
Vietnam’s sincerity would become even more evident if it should make plain its willingness, in related litigation, to also submit to the ICJ its territorial claims over the Spratlys, including those islands and other features that it currently occupies. China, as occupier of the Paracels, naturally prefers to avoid any sovereignty contest over them, just as Japan has until now denied there is a “dispute” over the Senkakus and South Korea has refused ICJ adjudication over Dokdo.
More broadly, as we have seen, China has thus far also rejected the adjudication of any sovereignty claims as a matter of principle, whether or not it is the occupier of the disputed territory. Indeed, China is seeking to persuade other states that the 2002 ASEAN Declaration of Conduct (DOC) should be interpreted as having excluded both international adjudication and arbitration from the possible means by which the states affected may engage in peaceful settlement of disputes.
For example, China, which appears to believe that the DOC is a binding agreement rather than a non-binding declaration of intention, argues that the Philippines violated the DOC by filing the UNCLOS arbitration against it. My own view is that states should be very reluctant to impose such a radical interpretation on the admittedly less than pellucid language of the DOC. That would represent a substantial departure from the long-accepted provisions of the United Nations Charter concerning peaceful settlement of disputes and would, as a practical matter, deny states the use of the important defensive weapon of resort to an impartial tribunal of experts.
This raises the second decision confronting Vietnam – whether to bring an UNCLOS arbitration against China like the one that the Philippines has initiated and the PRC has rejected. This would enable Vietnam to give formal legal support to the Philippines’ challenge to the “nine-dashed line” and to raise other UNCLOS issues concerning its relations with China and other claimants. Although the PRC would undoubtedly raise objections similar to those it has voiced about the process of the Philippines’ UNCLOS tribunal, such a Vietnamese initiative should be able to proceed at least to the jurisdictional stage, as the Philippines case has done despite the PRC’s objections.
Such an UNCLOS arbitration would probably not provide Vietnam with a solution to its current dangerous dispute with China over the placement of China’s oil rig. That would only occur in the event that the arbitrators were to decide that all the Paracels are mere “rocks” under Article 121.3 of UNCLOS and therefore not entitled to an exclusive economic zone.
Yet, by legally mounting its own challenge to the “nine-dashed line,” Vietnam may, as a practical matter, enhance the prospects that China’s expansive claim will be invalidated by the Philippine arbitration tribunal as well as any tribunal established in its own case. Moreover, depending on the other maritime disputes it chooses to present to an UNCLOS tribunal, it may be able to obtain other interpretations that could prove helpful to a negotiated resolution to the complex claims of the South China Sea.
I hope that the above remarks explain the basis for my suggestion that the contending states in the South China Sea and the East China Sea make as full use as possible of the opportunities to obtain the aid of the ICJ and the UNCLOS system in resolving their disputes with China. If they do, it will encourage the PRC as well as other states to be more cautious in making claims and taking actions and to give greater consideration to the benefits of impartial third-party determinations. Such determinations can dispose of some of the thorny legal issues that currently block the path to peaceful negotiation of disputes. If, for example, UNCLOS is deemed to have eliminated any historic claim for the “nine-dashed line,” that would remove a substantial obstacle to settlement, and the interpretation and application of Article 121.3 of UNCLOS regarding specific maritime features would also help to clarify and focus negotiations. Furthermore, the very resort to formal legal procedures may well stimulate progress in discussions that have thus far been stalemated.
Finally, a comment about China’s rejection of international adjudication and arbitration and its insistence upon bilateral negotiation as the only legitimate means of settling its many offshore disputes. Of course, China does not actually accept bilateral negotiation or any other form of peaceful settlement regarding disputes involving its territorial sovereignty over maritime features that it occupies. Moreover, by rejecting impartial institutional determination of all disputes and insisting on bilateral negotiation as the only means of resolving those disputes that it agrees to recognize, China, which is far stronger than any of its individual Southeast Asian neighbors, is seeking to maximize the relative advantages it enjoys in political, economic and military power and to minimize the relevance of international law.
As a result, China’s anti-institutional legal stance is motivating its neighbors to strengthen their defensive cooperation with each other, as well as to seek greater support from the major nations outside the region, especially the United States and Japan. This situation is contrary to China’s professed foreign policy goals and is creating increasingly dangerous tensions in the region. Beijing should reconsider its hostility to impartial institutional determinations and learn to benefit from their availability.
To be sure, ultimately, peaceful settlement will depend upon diplomacy, but diplomacy should not neglect the help that international legal institutions can provide. Although not a panacea, if properly invoked, they can play a very useful role.
This article originally appeared on The Diplomat on May 29, 2014.
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.