Japan, Lawfare and the East China Sea

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Japan, Lawfare and the East China Sea

Tokyo should consider arbitration for its maritime disputes, although not necessarily for the Senkaku/Diaoyu islands.

In an article published by The Diplomat on May 29, Jerome Cohen makes an impassioned and well-reasoned argument for states in East Asia to utilize independent, third-party arbitration mechanisms wherever possible to challenge China’s maximalist claims.

This was very much the theme of a question I asked Prime Minister Shinzo Abe at his opening keynote address at this year’s Shangri-La Dialogue. Essentially, I asked the question as I wanted to challenge his strong theme of international law in his speech by highlighting Tokyo’s seeming reticence to take the Senkaku/Diaoyu islands dispute to international arbitration. His answer was effectively to support the statement made by former foreign minister Koichiro Gemba in November 2012, that Japan is subject to compulsory arbitration under UNCLOS, but it is up to China to bring the case to court because Japan doesn’t consider there to be a dispute.

But I realized as soon as I had sat down (isn’t it always the way?) that I had asked the wrong question, and a slight tailoring of the content could have proven much more interesting and even pointed Tokyo in the direction of a potential new route to manage tensions with China. What I should have asked is whether Abe would also consider taking the overlapping exclusive economic zones (EEZs) in the East China Sea, north of and separate to the islands dispute, to international arbitration as international law suggests should happen when peaceful negotiation is not working.

The overlapping EEZ claims, which cover an area of approximately 40,000 square kilometers, would fall under the jurisdiction of the International Tribunal of the Law of the Sea as they do not rely on competing claims of sovereignty over land. An agreement was previously reached by Japan and China in 2008 on joint resource exploration, but it was never implemented as relations soured quickly following the arrest of a Chinese trawler captain in 2010.

With negotiations having failed over the overlapping EEZ claims, Japan would be well within its rights, in fact even obliged, to bring the case to independent arbitration. China may well not accept ITLOS jurisdiction, much as it has rejected jurisdiction of the Philippine arbitration tribunal brought in the South China Sea, but bringing this case would have various benefits for Japan.

First, it would demonstrate Tokyo’s willingness to abide by and utilize international law. Japan has come under criticism for not bringing the Senkaku/Diaoyu islands to international arbitration or officially recognizing it as a dispute. Taking the overlapping EEZs to court would deflect this criticism to some extent by reflecting Japan’s strong desire to resolve disputes through international law and focusing attention on another dispute resolution process.

Second, there is a clearer argument for taking this case to court as the overlapping area does not include any land mass and is therefore less obviously under either state’s administration. This is in contrast to the Senkaku/Diaoyu islands dispute, which Japan suggests China must bring to court because Tokyo already administers the islands.

Third, it may help to resolve a niggling, if low-priority, dispute between China and Japan, and therefore act as a confidence-building measure between the two, at a time when negotiations over the Senkaku/Diaoyu islands are out of the question. Even if China did not accept jurisdiction of ITLOS over the dispute, as it is within its rights to do having voluntarily opted out via Article 298 of independent arbitration mechanisms, an arbitral tribunal could be sought by Japan that would nevertheless reach a conclusion on the dispute without China’s involvement (as is likely to occur within the Philippine case over the South China Sea). This would at least provide an independent decision on the dispute, even if not accepted by China.

This suggestion would therefore be beneficial for Japan, by creating a new legal challenge to China that could in the best case resolve a maritime dispute, and in the worst case at least demonstrate Tokyo’s willingness to utilize international arbitration. Why won’t Japan take the overlapping EEZs to international arbitration? This seems like a much better question to ask.

Christian Le Mière is the Senior Fellow for Naval Forces and Maritime Security at the International Institute for Strategic Studies.