A Constructive Role for International Law in the Senkaku Islands?

Chapter 5

A Constructive Role for International Law in the Senkaku Islands?

Carlos Ramos-Mrosovsky¹

Introduction

The bubbling dispute between China and Japan over the uninhabited Senkaku/Diaoyu Islands in the East China Sea is widely feared as a potential trigger for great power conflict in East Asia.² The Senkaku dispute—and, in particular, the recurrent and hostile incidents to which it has given rise—should be of concern to all interested in maintaining peace in Asia. It should be of particular importance to policymakers in the United States, which is bound to Japan by a mutual security treaty and has publicly interpreted this commitment to apply to the Senkaku Islands.³ Dealing with the third question raised in the introductory chapter about possible solutions, this chapter proposes one way in which international legal processes might contribute to reducing the intensity and danger of the dispute over the Senkakus, even while leaving the underlying historical and legal claims to sovereignty over the islands unresolved.

This chapter takes no view on the questions of ultimate sovereignty over the islands or of rights to the hydrocarbons thought to lie beneath the surrounding seas.⁴ Instead, it considers how international legal processes might actually play a constructive role in managing the dangers of the repeated confrontations between Chinese and Japanese vessels and aircraft to which the dispute over the islands gives rise. These clashes, together with the strain they impose on bilateral relations and their potential for escalation, should be of far greater concern than the underlying legal question of sovereignty over the islands. Fortunately, international legal experience may suggest a means to decouple resolution of the former from the latter.

This chapter begins with an explanation of how the international law applicable to sovereignty over the Senkakus creates incentives that heighten the risk of an escalatory incident. It next explains why litigation or arbitration of the competing claims to the islands is unlikely, and could be counterproductive if attempted. Finally, this chapter argues that formal international legal processes may nevertheless be useful in managing the dispute and in preventing the escalation of dangerous incidents. Specifically, it proposes that the historical experience of international commissions of inquiry charged with investigating the facts of politically dangerous maritime incidents may offer a useful precedent for leaders in Beijing and Tokyo seeking to unwind tensions arising from confrontations over the Senkakus. Such a mechanism might contribute to a more stable environment for the development of the region’s reported hydrocarbon wealth, and set a positive example for East Asia’s other maritime disputes.

In the author’s view, however, the traditional public international law principles of territorial acquisition have done more to inflame the dispute over the Senkaku Islands than to resolve it.5 While this may seem counterintuitive, settled rules of customary international law award territory to the state that can best demonstrate the effective exercise of state authority over that territory (Brownlie 2008, p. 136). Where there are conflicting claims, one state’s failure to object to another’s assertion of authority may, as a matter of international law, be considered acquiescence in its rival’s claim. As Sharma (1997, p. 118) explains, “[i]f the adversary of any affected or interested state does not challenge the exercise of sovereignty over a prolonged period, the exclusive display of sovereignty is proved and the title acquires absolute validity.” Where the territory in question is a remote and uninhabited group of islands, efforts to demonstrate the exercise of state authority will often take place in the surrounding seas.

These can be dangerous rules. International law does not exist in a vacuum. Where national rivalries and historical grievances are as deeply felt as they are between China and Japan, demonstrations of effective control and non-acquiescence can escalate rapidly.⁶ In such a context, provocative declarations of jurisdiction and tense military confrontations follow naturally from the settled public international law of territorial acquisition. Such confrontations may further inflame patriotic feelings on both sides, contributing to ratcheting escalations not necessarily under the complete control of the governments concerned.⁷

An Acrimonious Dispute

China has challenged Japan’s control of the Senkakus since the early 1970s, when the islands were turned over to Japanese administration by the United States. Recent episodes demonstrate how the parties’ conduct of the dispute is influenced by the prevailing rules of international law.

In September 2012, for example, the government of Japanese prime minister Yoshihiko Noda announced the purchase of three of the five Senkaku Islands from private owners recognized under Japanese law. The “purchase” of the islands has been understood as an effort to avoid being outflanked by nationalist opposition politicians within Japan. Prior to the Noda Government’s announcement, Governor Shintaro Ishihara had proposed that the Tokyo municipal government should purchase and administer the islands to more aggressively assert Japan’s sovereignty over them, a strategy that could have embarrassed the government and, it should be noted, was apparently informed by the international law of territorial acquisition (“Governor of Tokyo: Develop Senkakus” 2012).

China responded to Japan’s “nationalization” of the Senkakus with increased patrols near the islands and large anti-Japanese demonstrations (Perlez 2012). A tense year later, China declared an “Air Defense Identification Zone” (ADIZ) over much of the East China Sea including the Senkaku Islands, demanding that foreign aircraft file flight plans with Chinese authorities and follow Chinese instructions when transiting through the zone (“Announcement of the Aircraft Identification Rules” 2013). China’s declaration of an ADIZ may be understood as an assertion of state authority over the disputed area, a decision that will have been informed by an appreciation of the applicable international law principles. Japan, along with the United States, has refused to recognize China’s ADIZ (Shanker 2013).8

These actions took place against a background of sustained hostile confrontation directed at affirming China and Japan’s rival claims to the islands within the international law framework described above. Naval and coastguard vessels from both sides conduct rival patrols of the surrounding seas, along with fishing boats and others carrying civilian activists. Vessels have rammed, collided, and sprayed each other with hoses (Dickie and Hille 2012; Takenaka and Kaneko 2012). Activists from both sides have repeatedly landed or attempted to land on the islands, which is forbidden by Japanese authorities (Fackler 2012; Sekiguchi, Warnock, and Spegel 2012). Some have been arrested; others have died in the attempt (Farley 1996).

The risk of a dangerous situation getting out of hand is more than theoretical. Repeated incidents involving both military and civilian vessels show how high the stakes can be.

In 2004, for example, a Chinese submarine was detected in waters south of the Senkakus; the Japanese Maritime Self Defense Force (JMSDF) responded by chasing it for two days with ships and aircraft (BBC News 2004), only the second occasion on which Japanese naval forces had gone on full alert since the Second World War. More recently, in late 2012, Japan alleged that a Chinese warship had focused its targeting radar on a Japanese destroyer, an accusation that the Chinese government initially denied and later attributed to an “emergency decision” by the commander on the scene (Brinsley and Reynolds 2013; Xinhua News 2013; South China Morning Post 2013a). Then, in late 2013, Japanese officials responded to Chinese flights into Japanese-claimed airspace by reserving the right to shoot down intruding Chinese drones, prompting Chinese officials to warn that such action would constitute an “act of war” (Panda 2013; People’s Republic of China Ministry of Defense 2013a). Tension in the skies has since run high. Against the background of such continued confrontations (Japan Times 2014b), Japan and China are both constructing new military bases within 150 and 300 kilometers distance from the islands respectively (Keck 2015).

Yet the most dangerous confrontations over the Senkakus are not necessarily military. Some of the most problematic involve civilian vessels outside the formal control of the Japanese or Chinese governments and their diplomats.9 In one such incident from late 2010, the Japanese Coast Guard intercepted a Chinese fishing boat within a few miles of the Senkakus. After the boat twice collided with Japanese patrol vessels, Japanese personnel boarded the Chinese boat, detaining its captain and crew for illegal fishing and resisting arrest. China denounced the arrests and demanded the immediate release of vessel and crew (Dickie and Hille 2010). After a week of heated diplomatic exchanges, protests, and a reported suspension of Chinese rare earth exports to Japan (King and Armstrong 2013), Japan allowed the vessel and crew to return to China while the captain of the boat was released a week later (Harlan and Wan 2013). Chinese and Japanese spokesmen subsequently disputed the accuracy of a leaked tape of the incident (Ito & Aoki 2010). Since then, Japan has made additional arrests of Chinese activists and fishermen near the Senkakus (South China Morning Post 2013b).

There can be little doubt that these kinds of incidents will continue or of the ability of this dispute potentially to spark a wider conflict. Indeed, the Senkakus seem to have become the focal point of an undeclared Sino-Japanese naval arms race (Kirk 2013). Japanese Prime Minister Shinzo Abe recently compared relations between the two countries to those of Britain and Germany prior to the First World War (Perlez 2014).¹⁰ In a similar vein, a senior US naval intelligence analyst recently and controversially warned that China’s naval modernization program is designed around the scenario of a “short, sharp” clash over the islands (United States Naval Institute News 2014). China and Japan (along with Japan’s ally the United States) have both staged elaborate drills to practice for such a scenario (Cooper 2014).

Risks of Miscalculation

The greatest danger posed by the Senkakus, then, is of a miscalculation that forces leaders in Beijing and Tokyo into a position from which they feel unable to back down. Such a scenario could quite easily follow from a confrontation at sea or in the air that spins out of control. As noted in a recent study by the Council on Foreign Relations (Smith 2013), “several specific indicators would raise the likelihood of an inadvertent clash between Japan and China.” These include any incident “involving the loss of life in the waters off the disputed islands” and a situation involving “loss of national command control over local commanders” who might “act independently in ways that are interpreted as presaging hostile intent … which could trigger a defensive response that escalates the crisis” (Smith 2013). Grave consequences could easily have followed from the release of a weapon in a tense encounter with an opposing submarine, from a naval vessel responding with force to its alleged illumination with targeting radar, or from a collision between coastguards and fishing vessels, resulting in injury or loss of life.

The frequent involvement of civilian actors from both countries in the Senkaku dispute compounds the danger. Activists motivated by patriotic or nationalistic zeal may be particularly destabilizing because, as a political matter, they are as difficult to disown as to restrain. The result—as with the Noda Government’s nationalizing purchase of three islands—is that the governments in Tokyo and Beijing may at times face political imperatives to take or ratify provocative acts they might have preferred to avoid.11

Dangerous scenarios are not difficult to imagine. Activists from both sides have already demonstrated their willingness to defy coastguard and military vessels. Air-to-air interceptions and menacing displays by rival warships can never be entirely free from the risk of escalation. Naval commanders may not always be prepared to interpret a hostile approach to their vessels or aircraft as a bluff. Nerves, national pride, and modern weapons form a dangerous combination.

Limitations of International Litigation and Arbitration as Tools for “Solving” the Dispute over the Senkaku Islands

Sovereignty over the Senkaku Islands is often imagined as an issue that might be resolved through arbitration or litigation before the International Court of Justice (ICJ). Litigation is certainly preferable to war, and its proponents come in many flavors. Some are proud defenders of Japanese claims to the islands, convinced that the merits of their cause should be put to the test once and for all (Ito 2012). Editorial pages and pundits from the Asahi Shimbun to The New York Times have also called for arbitration of the dispute (Asahi Shimbun 2012c; Kristoff 2012; Montlake 2012).

Litigation or arbitration of the islands’ status may also appeal to policymakers sandwiched between the United States’ treaty obligation to defend Japan and reluctance to become involved in a conflict with China over uninhabited islands. In 2012, the admiral leading the US military’s Pacific Command called for Japan and China to resolve maritime claims through arbitration (Ten Kate 2012). Indeed, even while underscoring the United States’ obligation to defend Japan in a conflict over the Senkakus, President Obama made clear that the United States takes no position as to the “final sovereignty” over the islands—leaving the door open for a negotiated or arbitrated resolution of the dispute (Voice of America 2014).

If both governments wished, they could submit their claims to the ICJ or to a panel of arbitrators. But the chances of China and Japan actually doing so are slim.¹² There are several reasons for this:

First, Japan does not want to risk litigating title to the Senkakus because it already controls them. A 2012 official statement from the Japanese Ministry of Foreign Affairs explains why. In responding to a reporter’s question as to why Japan has proposed submitting the status of the Dokdo/Takeshima Islands (which South Korea occupies but Japan claims) to the ICJ, but had not proposed the same with regard to the Senkakus, a Foreign Ministry spokesman was candid:

[T]he difference is that Japan has them under its valid control. Therefore, our position is that there is no territorial dispute to be resolved over the islands, and we believe that we should maintain this basic position … Therefore, we do not take the same approach with regard to the Senkaku Islands. We do not believe in taking the lead to bring the matter to the ICJ on the issue of the Senkaku Islands. (Ministry of Foreign Affairs of Japan 2012, emphasis added).

In other words, Japan currently controls the islands and concludes that it has nothing to gain and much to lose through putting them at stake in a contested proceeding.13

Nor will arbitration or litigation necessarily appeal to China. Such a proceeding would mark a dramatic break from China’s historical reluctance to submit its boundaries to adjudication by third parties.¹⁴ An arbitration over the Senkakus would also set a precedent opening China to arbitration and litigation of other disputes, such as in the South China Sea, something China has consistently refused. Most recently, China has declined to participate in arbitration proceedings brought by the Philippines over conflicting claims in the South China Sea (Szolnoki 2013).

Second, both sides must understand that a court or tribunal’s decision will not be easy to predict. An adjudicator would have to consider, at a minimum, the effect of Japan’s declaration of sovereignty over the islands in 1895, the proper interpretation of the treaties ending the Second World War in the Pacific, the geomorphology of the continental shelf, the legal relationship of China and Taiwan, and historical claims dating back to the Ming Dynasty (Pan 2009, pp. 139–62; Harry 2014, pp. 671–9). As Suganuma (2000) observes, “[d]epending upon who interprets international law and what rules of international law ones uses, the resolution of the Diaoyu dispute could vary.” In other words, a decision to litigate or arbitrate would represent a roll of the dice for both sides.

Third, it is not clear that either side could actually accept an adverse decision, whether in whole or in part.¹⁵ The dispute over the Senkakus gives rise to extraordinary passions, such that the probable intensity of the domestic political reaction to an adverse result in China or Japan could make the fate of any decision by the ICJ or arbitral award uncertain. As Henkin (1979, p. 187) warns, governments will rarely agree to “adjudicate matters which, they feel, they could not afford to lose or where, if they lost, they could not afford to obey the judgment.” A decision from an international tribunal could also make it even more difficult for moderate factions in the “winning” state to make concessions, while the “losing” government could simultaneously face tremendous pressure to reject the “decision” as flawed or biased, perhaps with a dramatic—and escalatory—gesture. For all these reasons, a final “decision” from a court or arbitral tribunal as to sovereignty over the Senkaku Islands could well exacerbate the dispute rather than resolve it, and Japan and China are correspondingly unlikely to seek one.¹⁶

Accountability for Incidents at Sea through International Fact Finding

Like an arbitration, an inquiry under the Hague Convention (1907) is constituted by the parties’ agreement. Article 10 of the Convention provides that “International Commissions of Inquiry are constituted by special agreement between the parties in dispute.”17 This agreement “defines the facts to be examined; it determines the mode and time in which the Commission is to be formed and the extent of the powers of the Commissioners” (Article 10). A commission of inquiry’s mandate may therefore be defined to preclude inquiry into particular questions, whether explicitly or by implication. In addition, although the convention provides for a commission’s report “to be read at a public sitting” (Article 31) it would be easy enough for the parties to agree to a different procedure, modeled on that set forth in the Hague Convention, but providing for a confidential report.

In this regard, the Convention’s somewhat archaic reference to disputes “involving neither honor nor vital interests” language may be read as intended to make it easier for contracting states to decline to participate in an inquiry process on the grounds that the matter is too sensitive. In practice, and as shown below, matters of “honor”—or at least of war and peace—have more than once been placed before commissions of inquiry.

Although Article 17 gives parties freedom to modify the procedures set forth in the Convention, its default rules provide for examination of witnesses (Articles 25–9) and for proceedings to take place in the presence of the parties’ legal counsel and representatives (Article 21). Article 30 further provides that a commission of inquiry also “considers its decisions in private and the proceedings are secret.” Likewise, the sittings of a commission of inquiry are “not public, nor the Minutes and documents connected with the inquiry published except with the consent of the parties” (Article 31). Unlike an arbitral award or a court judgment, moreover, the report of a commission of inquiry on questions of fact leaves the parties with “entire freedom as to the effect to be given” to the inquiry’s conclusions whether as a matter of law or policy. Article 35 declares:

The Report of the Commission is limited to a statement of facts, and has in no way the character of an Award. It leaves to the parties entire freedom as to the effect to be given to the statement.

Consideration of a variety of past inquiries undertaken under the Hague Convention model, and arising in different historical and political contexts, suggests the procedure’s potential usefulness in de-escalating Sino-Japanese maritime confrontations over and around the Senkakus.

De-escalatory Fact Finding at Sea: The Dogger Bank Incident

The best-known Hague-model commission of inquiry is that was convened by the British and Imperial Russian governments to investigate the “North Sea” or “Dogger Bank” incident of 1904. The commission’s work contributed significant to preserving peace between two of the early twentieth-century’s great powers, after an incident far more provocative than any which has yet occurred around the Senkakus.

The incident arose after Imperial Russian warships en route from the Baltic to the Pacific as part of the Russo-Japanese war mistook British fishing boats trawling the North Sea’s Dogger Bank for Japanese warships and opened fire, causing significant damage and loss of life (Dogger Bank Case 1905). Although this scenario may sound farfetched, Britain had been Russia’s imperial rival in Asia for much of the past century and was allied with Japan, though not a combatant in the Russo-Japanese war. Public opinion in Britain was broadly pro-Japanese, a mood enhanced by the Russian navy’s arrest of British vessels suspected of smuggling war contraband to Japan (Bar Yaacov 1974, pp. 47–8). Thus, many in the Russian fleet sincerely feared an ambush by Japanese torpedo boats near the British Isles.18

As recounted in the Dogger Bank Commission’s Report (1905, para. 6), the chain of events began on the evening of October 21, 1904, when a Russian warship, sailing at some distance behind the rest of the fleet, transmitted that it was being “attacked on all sides by torpedo boats.¹⁹ Shortly thereafter, the main body of the Russian fleet encountered British fishing vessels. Mistaking a trawler for a “torpedo boat proceeding at great speed,” the Russians opened fire (ibid., para. 11).

In the resulting chaos, a British trawler was sunk and five others damaged. Two fishermen were killed and six wounded (ibid., para. 13). The Russian fleet ceased fire upon recognizing its mistake, but did not stop to assist the fishing vessels out of fear that Japanese torpedo boats might still be lurking nearby.

When word of the incident reached England, popular fury nearly led to war. The British fleet was mobilized, and newspapers demanded a military response to the Russian “outrage” (Nish 2013, pp. 289–92). Indeed, according to Bar Yaacov (1974, p. 71), “Britain’s susceptibilities were so hurt, British public opinion was so roused—especially after the conflicting Russian version of the incident become known—that the two countries were on the verge of war within a week from the occurrence of the incident.”²⁰

Yet Britain and Russia successfully stepped back from a crisis that threatened to precipitate a major war. Encouraged by French diplomats concerned to preserve good relations between the two sides, Russia and Britain jointly agreed to “intrust to an International Commission of Inquiry … the task of elucidating by means of an impartial and conscientious investigation the questions of fact connected with the incident which occurred during the night of the 21st–22nd … October, 1904, in the North Sea” (Declaration of St. Petersburg 1904, reprinted in Bar Yaacov 1974, pp. 59–60). The inquiry was patterned upon the procedures set forth in the Hague Convention of 1899, a precursor to the 1907 Convention, which similarly provided for the constitution of commissions of inquiry into disputes of a factual nature arising between signatory states.²¹

The Dogger Bank Commission was composed of senior naval officers from Britain and Russia, as well as three neutral powers: the United States, France and Austria–Hungary. The commission held 28 sittings at The Hague over the winter of 1904–1905, during which it heard testimony from witnesses who were examined by counsel, and received extensive submissions from Russian and British representatives.