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Six reasons Japan should refer Senkakus dispute to ICJ Potential benefits worth it, says American academic

July 08, 2014  Yoshihisa Komori

 This article first appeared in Japanese on JBpress on June 18. You can read it here.

In recent years Japan's territorial disputes with neighbors have flared up, and the most serious involves China and the uninhabited Senkaku Islands. As dangerous incidents grow increasingly common (fighter jets making perilously close high-speed 'flybys' of other aircraft seems to be the provocation du jour), one mistake or misunderstanding could start a war. How to resolve the issue before it's too late? Journalist Yoshihisa Komori reports on American academic Larry Niksch's bold suggestion to refer the issue to the International Court of Justice, and his accompanying rationale.

I would like to introduce a proposal from the U.S. aimed at prompting Japan to change its thinking regarding the Senkakus issue.


China Coast Guard vessels continually entering Japan's territorial waters 〔AFPBB News

China is becoming increasingly aggressive towards the Senkaku Islands, a part of Okinawa Prefecture. With Chinese vessels entering Japan's territorial waters on a nearly weekly basis, and Chinese fighter jets flying dangerously close to Japanese Self-Defense Forces planes, the situation is explosive. It appears that China is strengthening its military posture towards seizing the Senkakus.

It is also unclear where the Chinese government's anti-Japanese propaganda will end up. The wording of official statements slandering Japan to the effect that, "Japan is trying to steal the Diaoyu Islands (China's name for the Senkakus) from China and change the post-war international order," is becoming stronger.

China has the advantage in both military might and politics, and there is a high risk that a small clash could escalate into full-blown military conflict. If things continue in this vein, China's intrusions into Japan's territorial waters may even lead to Japan losing its administrative rights over the islands.

If this happens, the Japan-U.S. Security Treaty will be invoked, but as the U.S. Armed Forces' defense obligations only apply to areas where Japan has administrative rights, the military effectiveness of the Japan-U.S. alliance may evaporate.

So what should Japan do about the Senkaku Islands crisis?

Japan's best hope right now is the U.S. If China deploys its military forces to the Senkakus, the U.S. military will be called out to defend them through the invocation of Article 5 of the Japan-U.S. Security Treaty. Japan's Self-Defense Forces will, of course, also have to fight.

However, doubt remains over whether the U.S. would be willing to risk an all-out war with China by defending the islands with military force. For one thing, the Obama administration seems eager to extend a hand of friendship towards China. Could the U.S. really stomach a fight against the Chinese military?

Outsider makes a suggestion taboo within Japanese government

Under these circumstances, one U.S. expert came up with a rather interesting idea: the Japanese government should bring the Senkakus dispute before the International Court of Justice (ICJ) and seek their ruling on the matter.

Larry Niksch, who proposed the idea, served more than 30 years as a Specialist in Asian Affairs with the Congressional Research Service of the Library of Congress, and is currently a senior fellow at a major Washington think tank, the Center for Strategic and International Studies (CSIS).

Niksch is well-known for his research on the Korean Peninsula but has also published the results of extensive research over many years on the Senkakus issue. His proposal to let the ICJ take over the dispute is contrary to the Japanese government's opinion. This is because the Japanese government has consistently maintained the stance that there is no territorial dispute over the Senkaku Islands, because they have always been part of Japan's territory since ancient times—and therefore Japan holds sovereignty.

Since appealing to the ICJ would mean abandoning Japan's original claim, that there is no issue to resolve because the islands belong to Japan, by admitting that a dispute exists, the Japanese government has been strongly opposed to bringing the case to the ICJ.

Even so, Niksch insists that appealing to the ICJ would be advantageous to Japan, and that if the current situation continues, Japan may be forced to retreat and put at a disadvantage. He also cautioned that the continuation of military confrontations between Japan and China have a high risk of developing into war.

The six effects an international ruling would bring

I will now introduce Niksch's proposals in detail. Niksch states that an appeal to the ICJ would have at least six beneficial effects for Japan.

(First effect)

Japan's appealing to the ICJ could strengthen support from the U.S. in general, as well as from the Obama administration.

The peaceful settlement of international disputes is one of President Obama's key policies. Bringing the Senkakus issue before the ICJ is therefore consistent with his policy, as well as contributing to the easing of military tension, which the Obama Administration has always advocated.

Despite President Obama's having announced that the Japan-U.S. Security Treaty covers the Senkakus, some within his administration oppose U.S. military involvement there. Japan's appealing to the ICJ could help dispel some of these objections. Criticism pertaining to Japanese historical issues that exists in some parts of the U.S. would also likely decrease.

(Second effect)

That China would oppose the ICJ's ruling is certain. This would result in further condemnation of China by the international community.

Since the 1990s, China's basic policy regarding maritime territorial disputes has always been to seek a resolution through direct negotiations with the countries involved, striking out against international rulings or the involvement of a third country with hard-line policies.

China has also been reluctant to negotiate with the Association of Southeast Asian Nations (ASEAN) in territorial disputes with the Philippines, Vietnam, and Malaysia.

Furthermore, in response to the Philippines' appeal to the International Tribunal for the Law of the Sea (ITLOS) regarding disputes over the Paracel Islands in the South China Sea, China has refused to participate in the ruling and is seeking the withdrawal of the suit.

(Third effect)

Appealing to the ICJ would increase Japan's deterrence against Chinese military forces.

If China refused Japan's appeal, international condemnation against China would grow. The effect of China's anti-Japanese propaganda based on historical issues would also be significantly weakened, resulting in the diplomatic isolation of China.

In addition, China's diplomatic campaign against Japan would also lose its impact. As a result, the backlash from the U.S., Europe, and Southeast Asia over the possibility that China would use military force would greatly increase. Because this backlash could lead to the possible exercise of military force, China may be forced to put the brakes on its own military action.

(Fourth effect)

By going to the ICJ, Japan would make it easier to increase military strength for the defense of the Senkakus. If China refused international arbitration and strengthened its military posture the Japanese government would gain legitimacy for strengthening the defense of the Senkakus.

Although the Obama administration would probably continue to appeal for Japanese restraint in exercising military force, Japan's legal appeal would weaken the argument the U.S. could bring in opposing Japan's independently strengthening its military.

(Fifth effect)

Japan's referring the Senkakus dispute to the ICJ would strengthen its solidarity against Chinese aggression among Southeast Asian states, especially the Philippines.

ITLOS is seeking the opinions of third-party states on the Philippines' case. If Japan stepped in to fill this role, it would garner it new participation in an international organization, as well as build trust with other countries. The U.S. is incapable of acting in this role as it has not ratified the UN Law of the Sea. Thus, Japan would be able to act for the U.S.

Looking towards the international resolution of territorial disputes in the South China Sea, Southeast Asian states are pinning big hopes on the Philippines. Japan's participating in this would make collaboration at sea and strategic cooperation with those states easy to effect.

(Sixth effect)

Referring the case to the ICJ would be consistent with Japan's approach to international relations in legal terms.

The Japanese government has expressed a desire to refer the ownership dispute over the island of Takeshima to the ICJ, but South Korea is against this. By refusing to submit the Senkakus issue to international arbitration while simultaneously seeking international arbitration for Takeshima, Japan has created an inconsistency that threatens its integrity.

If Japan submitted the Senkakus issue to the ICJ it would align to its present stance on Takeshima and promote the future use of international legal mechanisms in resolving territorial disputes at sea.

Fight fire with fire, and propaganda with propaganda

Niksch emphasizes that his proposal would restore Japan's current disadvantaged status in terms of international law. He says that at present, China's intense anti-Japanese propaganda has pushed Japan into retreat.

Niksch goes on to advocate that Japan deploy its own propaganda and start conducting smart diplomacy that shrewdly and boldly exploits the opponent's weaknesses. This can be encapsulated with a simple maxim: use Japanese propaganda to fight Chinese propaganda.

The author is a highly respected and experienced Japanese journalist who currently serves as Editor-at-Large for the Washington DC Bureau of the Sankei Shimbun, one of Japan's national dailies. He has also written more than 30 books primarily on Japan and its relationships with the world.

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