Recent events in the South China Sea, the Senkaku/Diaoyu Islands, and Crimean Peninsula expose a fundamental problem in the way the current international system deals with the issue of territorial disputes.
Ukraine’s new President Petro Poroshenko recently stated that Ukraine would never cede its claim to the Crimean peninsula to Russia, despite the fact it has lost de facto control over the peninsula and has almost no chance of regaining it through force or negotiations, as it has been annexed by Russia. Attitudes similar to Ukraine’s are found all over the world where there are territorial disputes, such as in the South China Sea, over the Senkaku islands, in Israel and Palestine, and in India and Pakistan. This attitude derives from thinking of a country’s claimed borders as sacrosanct, reducing a state’s willingness to make the facts on the ground official.
This attitude is relatively new. Prior to the Second World War, borders between countries were conceived of as being more fluid and subject to change. However, in the present international order, the idea has taken root that boundaries are rigid and frozen. This norm has been particularly encouraged by the United States, which sees it as a way of preventing ceaseless, deadly conflict. This interpretation of borders is now considered a part of international law.
Despite its benefits, this conceptualization of permanent territorial integrity has its drawbacks. Chief among these is that it delays or even prevents the resolution of territorial disputes. Instead of a territorial dispute being decisively resolved in favor of one side or the other, it festers, sometimes over decades, leading to the long term chilling of relations between countries. By turning a strategic and political issue — which territorial disputes ought to be — into a moral cause, it inflames passions, making normal relations between countries even more difficult. This makes it “politically impossible” in several countries to negotiate over territory, despite the potential benefits of doing so. This, for example, is a good characterization of the Senkaku/Diaoyu Islands dispute between China and Japan.
Additionally, this idea of territory often prevents the “natural” emergence of new states when old states have failed, as was the case in Somalia, making it difficult for Somaliland to obtain recognition. It also prevents the emergence of new states due to successful rebellions because the rump government can strongly insist on the norm of territorial integrity and refuse to recognize the new state. This leads to frozen conflicts and ambiguity and prevents the normalization of relations that comes with peace and recognition. If this was the norm two centuries ago, the United States might have never obtained recognition from the British!
Some commentators, pointing out that hardly any present-day state has existed within its current borders for more than 100 years, have argued that it is futile to attempt to freeze the evolution of states. Doing so could in fact lead to more violence than simply settling disputes, since it creates the conditions for a permanent powder keg between two nations. Today tensions in Asia are at an all-time high because of the significant risk of skirmishes and misunderstandings over disputed territory in the South and East China Seas.
It is clear then that today’s rigid conception of boundaries has enormous drawbacks and that some change would be welcome. Perhaps states ought to change their views on the norm of territorial sovereignty and become more committed to reconciling with facts on the ground. This would make negotiations more productive and treaties settling territorial disputes more likely, reducing the chances of conflict.
The Austrian diplomat Klemens von Metternich, who worked on territorial disputes in the aftermath of the Napoleonic Wars, provided another solution. While he emphasized the necessity of treaties in ensuring the legal resolution of disputes as opposed to arbitrary, unilateral conquest, he advocated the limited use of force to induce favorable negotiations or sometimes change the facts on the ground when old ones no longer worked.
Whether or not Metternich’s ideas capture the future of resolving territorial disputes remains to be seen. But the increased use of military power may well become more frequent if rigid norms of territoriality are held on to, making the peaceful negotiation of and resolution of disputes even more difficult. Countries seeking to affect the natural evolution of borders in a way more reflective of their traditional flexibility may increasingly feel compelled to resort to force in order to do so. Yet this is not an argument that only favors big powers. Smaller countries too may build up their militaries and with a combination of efficiency and strategy hold off larger powers and create their own facts on the ground. Asian countries ought to keep this in mind as they attempt to solve their territorial disputes.