The July 12 arbitration award in the Philippines case against China under the United Nations Convention on the Law of the Sea (Unclos) isn’t only significant for East Asia and maritime law. It will also have implications for public international law and the peaceful settlement of international disputes generally.
While tensions continue to rise in the South China Sea and the disputing governments nervously await a decision in the Philippines’ arbitration case against China, an important sideshow has arisen between Japan and Taiwan in the central Philippine Sea regarding a Taiwanese fishing vessel.
As a Japanese lawyer studying in the United States, I came across CCR’s case Hassan v. City of New York, a lawsuit challenging the blanket surveillance and religious profiling of Muslim communities. The case – and the principles it upholds – seems particularly important now, as I watch political candidates call for discriminatory measures against Muslims. I learned of the case while doing research for my own litigation in Japan challenging a more severe version of the program, one that monitors virtually every Muslim person in the country.
The already tense atmosphere in the East China Sea ratcheted up a notch this past week when China declared a new air defense identification zone. The United States’ flight of a pair of B-52 bombers through that zone on Monday further highlighted the potential for conflict in the contested area.
Japan’s arrest in September of a Chinese fishing captain within the 12-nautical-mile territorial sea surrounding the Diaoyu-Senkaku Islands – five tiny islets and three barren rocks northeast of Taiwan – has again inflamed relations between the two great East Asian powers.
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.
Jerome A. Cohen discusses how international tribunals could help East Asia solve its Law of the Sea crisis.
The already tense atmosphere in the East China Sea ratcheted up a notch this past week when China declared a new air defense identification zone.The United States’ fight of a pari of B-52 bombers through that zone on Monday further highlighted the potential for conflict in the contested area. The legal issues involved in the use of the sea, are intellectually intriguing for an academic who studies international law. The political realities of this increasingly tough neighborhood, however, are frightening.
Sino-Japanese relations do not look promising at the moment. Obviously, the Diaoyu-Senkaku dispute is not the only factor in play but it does focus nationalist passions on both sides. Yet both countries are capable of wiser conduct if their leaders can manage to rise above the dangerous temptations to beat military drums.
For over four decades after the Allied victors in the second world war allowed Chiang Kai-shek’s Chinese government to reclaim Taiwan from Japan, the generalissimo’s Kuomintang maintained a ruthless Leninist-style dictatorship over the island. Yet KMT propaganda hoodwinked many outside the island to believe that it, unlike the Maoist regime that chased it from mainland China in 1949, was the defender of democracy, the rule of law and human rights for Chinese people.
Are criminal trials too important to be decided by professional judges alone? That question is increasingly being asked – and answered – in various Northeast Asian jurisdictions. South Korea has used non-binding “consultative” juries since 2008. The following year, Japan instituted “mixed tribunals” composed of three judges and six laymen to decide both guilt and punishment. Even some courts in Mainland China, which has long authorized one or two Soviet-style “people’s assessors” to join judges in decision-making, have recently been experimenting with consultative “people’s juries.” Now Taiwan is considering an official proposal for five laymen to sit with and advise three judges in serious criminal trials.
As China, Taiwan and South Korea consider how ordinary citizens can best take part in deciding serious criminal cases, they should study the Japanese model. In 2009, Japan, after years of careful planning, introduced a system that provides for six laymen to join three professional judges in adjudicating issues of both guilt and punishment. Thus far, this system appears to be successful.