Zachary Keck

To Lead In Asia, Japan Must Take China to Court

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Zachary Keck

To Lead In Asia, Japan Must Take China to Court

Acknowledging the Senkaku dispute and appealing to international law would benefit both Japan and ASEAN.

To Lead In Asia, Japan Must Take China to Court
Credit: Wikimedia Commons

On Friday Japanese Prime Minister Shinzo Abe delivered the keynote address at the Shangri-La Dialogue, one of Asia’s most important security conferences. As my colleague Shannon noted, Abe used the speech to bolster his ongoing effort to reestablish Japan’s leadership position in the region, and anchor it in international law.

With the notable exception of South Korea, Abe’s effort to reassert Japanese leadership has been remarkably successful. In his first year and a half in office, Abe has noticeably strengthened Japan’s ties to important countries like Taiwan, Russia and India. Nowhere has Abe been more successful than in Southeast Asia, however. As I noted last year, Japan’s reemergence in Southeast Asia was one of the most important developments of 2013.

Abe himself was integral to this effort. In his first year in office alone, he personally visited all 10 ASEAN states. Abe also strengthened Tokyo’s position in Southeast Asia by joining the Trans-Pacific Partnership negotiations despite the strong domestic opposition he faces on this issue, including from factions within his own political party. Many of his controversial efforts to remove Japan’s security restrictions will also improve Tokyo’s ability to play a leadership role in ASEAN. For example, by removing the self-imposed arms export embargo, and embracing collective self-defense, Tokyo will be able to arm and come to the defense of ASEAN nations threatened by China.

Despite these accomplishments, there is still one glaring shortcoming in Japan’s effort to strengthen its position in ASEAN: namely, its position on the Diaoyu/Senkaku Island dispute with China. Dropping its current policy and embracing international law would significantly benefit both Japan and Southeast Asia.

As is well known, Japan continues to refuse to acknowledge there is any dispute over the sovereignty of the Diaoyu/Senkaku Islands. Whatever advantages this policy may have once had, it no longer serves Japan’s interests. Since Japan purchased some of the islands in September 2012, Japan’s refusal to acknowledge that a dispute exists has not stopped China from ramping up its air and sea patrols around the waters. In doing so, China is gradually chipping away at Japan’s otherwise strong claims to sovereignty.

Japan’s current policy also imperils ASEAN nations in their own disputes with China over various features in the South China Sea. To begin with, by refusing to acknowledge that a dispute exists over the Senkakus, Japan is helping to legitimize China’s refusal to acknowledge any disputes over features it controls in the South China Sea. Moreover, Japan’s current position precludes Tokyo from seeking a peaceful and responsible solution through the use of international law and multilateral forums. This too gives credence to China’s refusal to do likewise in the South China Sea. Although Abe has praised the Philippines for turning to international arbitration to resolve its maritime disputes with China, and again praised this course of action in his speech on Friday, these words ring hollow in light of Japan’s position over the Senkaku Islands.

Acknowledging the dispute and seeking international arbitration would be a clear demonstration of the kind of leadership role Japan wants to play in Asia. As Jerome Cohen noted on Flashpoints this week, international arbitration could very well help reduce tensions in the region. Moreover, it would not only benefit Japan itself, but also strengthen ASEAN nations’ positions vis-à-vis China in the South China Sea.

Japan should begin by privately proposing to China that Tokyo will acknowledge a dispute exists, as China continues to insist it must, if Beijing will agree to submit to international arbitration. Although China is likely to refuse, Tokyo would be offering a way to resolve the dispute where China could still claim some victory (Japan acknowledging the dispute). Furthermore, if Beijing was to agree to this proposal it would set a strong precedent for the South China Sea.

Even in the likely event that China spurns Japan’s offer, Tokyo should proceed unilaterally in recognizing the dispute and appealing to international arbitration to rule on the issue of sovereignty. In other words, it should follow the Philippine model.

There is little to lose and much to gain in following this approach. First, Japan currently has a strong claim to sovereignty over the Senkakus that will almost certainly be upheld by an international tribunal. Even if China refuses to acknowledge the ruling, as it would most certainly do, it would still impact Beijing’s actions around the disputed islands in ways favorable to Japan. The court ruling would make it difficult for China to depict its patrols over the islands as anything but unnecessary provocations. China invading islands that an impartial arbitrator had determined belongs to Japan would be virtually unthinkable. Moreover, Japan would be wise to seek a decision from an international tribunal on the sovereignty issue sooner rather than later. As noted above, China’s constant patrols near the islands seem to be a permanent feature. This will only serve to weaken Japan’s firm position of sovereignty over time.

Of course, by dropping its current Senkaku policy and appealing to international law to settle the dispute, Japan would be making China’s current positions on the South China Sea issue even more untenable. Beijing would be even more isolated in not acknowledging certain disputes as well as refusing to use international law and multilateral forums to peacefully resolve the various disputes in the China Seas. With all other claimants, and important third parties like the U.S. and Indonesia, pushing in both word and deed for a resolution through international law and multilateral forums, China’s defiant stance would in essence be an exercise in hegemony. That is, it demands that all other parties conform to the position that it alone maintains. This would be untenable in the long run and would strongly shape regional and international opinion in Japan’s favor in the short term.

Although Abe has successfully laid the groundwork for Japan to reassume a leadership position in Asia, it must now actually lead. Dropping its current position on the Senkakus and embracing one anchored in international law would be the perfect way to start.