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AnalysisNo.186,July2013

MANAGINGTERRITORIALANDDIPLOMATICDISPUTESINEASTASIA

MichitoTsuruoka

The existence of territorial and diplomatic disputes in East Asia raises serious concerns and, if

escalated,couldrisktheregion’sstabilityandprosperity.Focusingonthreeterritorialanddiplomatic

disputes involving Japan, theNorthern Territories, Takeshima, and the Senkaku Islands, this article

exploreswaystomanagethosedisputessoastomaintainregionalstabilityandpreventthesituation

fromescalatinginconsistentwithinternationallaw,practiceandnorms.Themostbasicprinciplesto

beadheredinthisregardinclude,first,allowingtheotherparty(orparties)todisagree,andsecond,

maintaining the status quo not trying to change it by force. While these measures cannot by

themselves solve thedisputes,weat leastneed toprevent thecurrent tensions fromescalating into

armedconflictsamongsttheinvolvedparties.

Michito Tsuruoka, DrMichito Tsuruoka is a Senior Research Fellow at the National Institute forDefenseStudies (NIDS),MinistryofDefense, Japan. In2013‐2014,he isalsoaVisitingFellowatRoyalUnitedServicesInstituteforDefenceandSecurityStudies(RUSI),London.*Theviewsexpressed inthisarticlearestrictlytheauthor’saloneand innowayrepresentthoseoftheNIDS,theMinistryofDefense,theGovernmentofJapanorRUSI.

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Increasing Concerns

One of the most unenviable features about East Asia is that the region is full of unresolved or contested disputes over territories. While the region is the home to some of the fastest growing economies and rising powers in the world, the existence of various disputes raises serious concerns and could risk the region’s stability and prosperity. Unintended escalation of tensions could lead to the use of force and war. The persistence of territorial disputes is certainly not new to the region. Given the increasing importance of the region in the world and the rising level of tensions in the South and East China Seas, however, it has become a global concern. Recent developments in Northeast Asia, involving Japan, China and the Republic of Korea, are of particular concern. Potential ramifications cannot be contained within the region if an armed conflict erupts there. Europe and other countries outside the region will inevitably be affected from what takes place in Asia given the increasing level of interdependence linking Asia and the world. Maintaining the freedom of navigation, in particular, is a critical part of Europe’s and the wider international community’s interest. Sharing those concerns, the main purpose of this article is to explore the nature of the disputes in East Asia, focusing on those involving Japan. It is true that every dispute is unique in its origins and evolution. However, in terms of addressing those disputes from a policy perspective, some generic conclusions can be drawn as a way to maintain stability and prevent the situation from escalating. This article argues for the need to allow the other party (or parties) to disagree and to maintain the status quo – refrain from using force, in particular – as a set of basic principles to manage the situation. While these measures cannot by themselves solve the disputes, we at least need to prevent the current tensions from escalating into armed conflicts amongst the involved parties.

Another reason why this article focuses on those principles is to show that even such basic principles of conduct and behaviour amongst actors have yet to be established in some of the territorial and diplomatic disputes in Northeast Asia. Due to this paper’s policy-oriented nature, it will not go into details as regards the historical background. What is significant here instead is how, under the current regional context, the countries involved can behave in a responsible and restrained manner in managing the situation, consistent with international law, practice and norms. In the final section of this paper, Europe’s choices in approaching Asia’s territorial issues will be briefly examined.

 

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Allowing the Other Party(ies) to Disagree

First and foremost, the significance of the principle of allowing the other party(ies) to disagree needs to be reiterated. This always constitutes the necessary minimum level of mutual understanding between the parties concerning any disputes, not only between states, but also in any human relationships. It is an art of managing the existence of conflicting positions, often referred to as ‘agreeing to disagree’. In East Asia, however, this formula has yet to be embraced, which continues to characterize the nature of territorial and diplomatic disputes in the region. Failing to do so often causes unnecessary political controversies and heightens tensions between the countries involved. Allowing the others to disagree, however, does not require any formal or even tacit agreement between the parties. It is rather an attitude that can be shaped unilaterally, the most important element of which is to refrain from protesting against the other parties’ verbal claims to which one disagrees.

The most extreme case of the inability to allow the other party to disagree is the Republic of Korea’s position on the dispute over Takeshima Island, which Seoul calls Dokdo Island. It is an island that South Korea occupied in 1952 by President Lee Sung-man’s unilateral decision to draw a new border line – called Lee Sung-man Line – over the sea between Japan and the Korean Peninsula. Since then, Seoul has been controlling and administering the island. Furthermore, successive South Korean governments have constructed a national narrative on the critical centrality of the island in Korea’s national identity. Since it is Japan’s position that the island is an inherent part of its own territory, the government in Tokyo has been consistently claiming it. As long as it is controlled by Korea and given that Japan has absolutely no intention of challenging the existing status quo by the threat or use of force, the only action that Japan can take is to keep restating its position – mainly through political leaders’ statements and speeches and government publications, most notably the annual Diplomatic Bluebook and Defense White Paper (Defense of Japan). Keep registering Japan’s position to South Korea and to the wider international community is critical in terms of maintaining Japan’s territorial claim. This is part of normal international diplomacy.

However, Seoul refuses to accept this. Each time Japan – not only political leaders, but officials and government publications as well – claim Takeshima as part of Japan’s territory, South Korea reacts harshly and issues formal protests at various levels. Consequently, Seoul’s protest against the Diplomatic Bluebook and Defense White Paper has almost become an annual event, which often causes disruptions – cancellations and postponements of various meetings, events and projects – in bilateral relations. The fact that Japan’s verbal claims cause such level of problems

 

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is not helpful and this makes any calm discussions between the two countries on the issue next to impossible. In terms of not allowing the territorial dispute to be part of a bilateral agenda, Seoul has been successful. But in every other respect, it harms the country’s relations with Japan, and more importantly, Japanese peoples’ perceptions on South Korea. The cost of disagreeing to disagree is actually high in this case, which does not seem to be fully understood in South Korea. Furthermore, even if Seoul allowed Japan to disagree regarding Takeshima, its advantageous position as a party that currently exercises administration over the island would not change at all, since the Japanese government has no intention of reclaiming the island by force. Allowing the others to disagree, therefore, seems to be the most effective and practical way to prevent the dispute from escalating and to normalise the bilateral relationship. This has become even more urgent in terms of addressing the ongoing North Korean crisis, where trilateral cooperation between Japan, South Korea and the United States is increasingly needed.

One might assume that South Korea’s position regarding Takeshima and that of Japan on the Senkaku Islands are similar in the sense that both countries do not recognise the existence of a territorial dispute. There is, in fact, a significant difference between the two respective positions. Whereas South Korea firmly disagrees to disagree and is not prepared to allow Japan to even verbally claim the island as part of Japanese territory, Japan generally allows China to disagree and to make its own verbal claims with which Japan disagrees. To be sure, Japan’s official position is that “there is no territorial dispute to be solved” over the Senkakus and the government sees no reason to negotiate on the islands with China – after all, China started to claim the islands only in 1971, seventy six years after Japan officially incorporated those islands into Japanese territory in 1895. At the same time, the Japanese government always strongly condemns intrusions into Japan’s territorial waters and air space by China’s government ships and aircraft. However, protesting against verbal claims and condemning actions of actual water and air space intrusions are clearly very different. The Japanese government does not normally protest against Chinese leaders’ statements or government publications arguing that the Senkakus are part of China’s territory and does not interrupt bilateral relations in retaliation to Chinese verbal claims. While being short of officially acknowledging the existence of a territorial dispute, the fact that Japan allows the Chinese to make their verbal claims constitutes part of Japan’s restrained approach. This sets the cases of the Senkakus and Takeshima on two different diplomatic registers.

 

 

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What is more, as a matter of principle, Japan accepts a possible future involvement of the International Court of Justice (ICJ) if China decided to take the issue to the ICJ1. Japan as a country that accepts the ICJ’s compulsory jurisdiction is naturally prepared to make its own case before the ICJ. Since the acceptance of the ICJ’s compulsory jurisdiction is reciprocal in nature, Japan would not be obliged to accept it vis-à-vis China in legal terms as long as Beijing does not accept it by itself. However, beyond such a technical aspect, Japan’s overall position is to respect the rule of law in international relations and to call for other countries to accept the ICJ’s compulsory jurisdiction as then Prime Minister Yoshihiko Noda stressed in his address to the United Nations General Assembly in September 20122. This marks another substantial difference between Japan’s position on the Senkakus and that of South Korea on Takeshima. Seoul has been strict in rejecting Japan’s proposal to take the issue to the ICJ without giving much explanation why it cannot accept it except that the country’s position is that there is no territorial dispute to be solved. Japan has made a series of formal proposals to South Korea since the 1950s to let the dispute be solved through the international legal procedures at the ICJ.

One thing that needs to be clarified here is that allowing China to disagree in no way suggests the existence of any agreement – formal or informal – between the two countries. Contrary to mainly Chinese claims that there was a tacit agreement between the Japanese and Chinese leaders to ‘shelve’ the issue of the Senkakus on the occasion of the normalisation of diplomatic relations between the two countries in the early 1970s, the Japanese government has been consistent in denying any such allegations. The argument in this article on Japan’s attitude of allowing China to disagree should not be seen as suggesting the shelving. It is rather Japan’s spontaneous approach, which demonstrates the restrained nature of Japan’s attitude on the issue.

The principle of allowing the other party to disagree is more or less established in the dispute over the Northern Territories – which Russia refers to as South Kuril Islands – between Japan and Russia. While Russia (or the Soviet Union in the past) has taken, from time to time, a position that there is no territorial dispute to be solved with Japan, the two countries succeeded in negotiating the territorial issue at various levels. The Russian authorities are generally prepared at least to discuss the territorial conflict with Japan. Russia does not normally react to

                                                              1 As a party that currently controls the islands, Japan has no reason to initiate the ICJ

process. Normally, those who want to change the existing situation propose to take the issue

to the ICJ as in the case of Japan regarding Takeshima. 2 ‘Address by H.E. Mr. Yoshihiko Noda, Prime Minister of Japan at the Sixty-Seventh

Session of the United Nations General Assembly’, New York, 26 September 2012.

 

 

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Japanese politicians’ comments regarding the Northern Territories being fully aware of Japan’s territorial claims and knowing that Japan does not intend to change the status quo by physical means. Only when Japanese leaders use the term ‘illegal occupation’ to describe the current situation, the Russian government makes a diplomatic protest.

Maintaining the Status Quo - Challengers’ Responsibility

For the purpose of maintaining stability and managing tensions, another fundamental principle is to keep the status quo, or more precisely, not to try to change the status quo by physical means, most notably the threat or use of force. Pursuing peaceful solutions of conflicts in accordance with international law is at the core of this principle. Given that territorial disputes in East Asia are mainly over islands, pursuing peaceful solutions is in the interest of the wider international community for the sake of maintaining freedom of navigation in the region on which a significant portion of world trade depends.

Territorial disputes in general are almost always subject to an asymmetric structure, because there is normally a party that controls the disputed territory on the one hand and a party (or parties) claiming the territory without control on the other. The position of the former is much stronger than the latter, which is also recognised by the practice of international law. Therefore, those who control the disputed territory in question usually prefer the status quo, while those challenging aim at changing the status quo, at least in the long term.

The responsibility of maintaining and respecting the status quo first lies with those who do not control the disputed territories, the challengers – Japan in the cases of the Northern Territories vis-à-vis Russia and Takeshima vis-à-vis South Korea and China for the Senkakus vis-à-vis Japan. Japan has never tried or intended to change the status quo by force in either the Northern Territories or Takeshima. Tokyo’s position is clear in that these disputes must be solved through peaceful means, namely diplomatic negotiations. This position is highly unlikely to change in the foreseeable future.

In contrast, China seems to be trying to change the status quo of the Senkakus by repeatedly sending the government’s ships and aircraft into Japanese territorial waters and air space. China’s intention seems to be to demonstrate to its domestic audience, Japan and to the wider world that there is indeed a territorial dispute between the two countries (something Japan officially denies) as a first step and then to undermine Japan’s control and administration over those islands. The latter involves a significant issue of whether an armed conflict there – an operation to defend the Senkakus – would invoke the Japan-US Security Treaty,

 

 

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particularly the treaty’s Article 5 on US assistance to the defence of Japan. The article states that the treaty provision would be applied to ‘an armed attack in the territories under the administration of Japan’. Therefore, whether those islands are under Japan’s administration or not is crucial. The United States recognises that the islands are currently being administered by Japan – it was the US that administered those islands after the Second World War as part of Okinawa (used some of those islands as a military exercise area) and returned to Japan together with other islands belonging to Okinawa in 1972.

At the same time, the United States officially sticks to its position that it does not take sides on territorial disputes in which the US is not a directly involved party. The same applies for various disputes in the South China Sea. However, not taking sides is not necessarily the same as remaining neutral. Japan has been trying to have the US come up with a clearer position on the Senkakus, in particular its position regarding the applicability of Article 5 of the Security Treaty. To be sure, Washington does not want to get involved in a military conflict with China over those islands. The current line of US position, as reiterated in April 2013 by Defense Secretary Chuck Hagel on the occasion of his meeting with Japanese Defense Minister Itsunori Onodera reads: “The United States does not take a position on the ultimate sovereignty of the islands, but we do recognize they are under the administration of Japan and fall under our security treaty obligations”. Furthermore, Hagel reiterated that “the United States opposes any unilateral or coercive action that seeks to undermine Japan’s administrative control” over the Senkakus3. What this shows is that regardless of the issue of ultimate sovereignty, any ‘unilateral or coercive’ attempt to change the status quo cannot be acceptable, a new position introduced in January 2013 by Secretary of State Hillary Clinton.

In the meantime, China’s various attempts to change the status quo continue, which cause serious international concerns, not only in Japan and the US, but also in the wider international community. Countries in Southeast Asia which have their own territorial disputes with China are closely following the Japanese-Chinese controversy over the Senkaku Islands – both China’s actions and Japan’s response to them

Maintaining the Status Quo – Current Controllers’ Responsibility

The responsibility to keep the status quo also lies with those who currently control the contested territories – Russia in the case of the Northern Territories, South Korea for Takeshima and Japan for the Senkakus. While this is not a legal obligation, it is still important to

                                                              3 ‘Press Conference with Secretary Hagal and Defense Minister Onodera from the Pentagon’,

U.S. Department of Defense News Transcript, 29 April 2013.

 

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exercise self-restraint and to refrain from provoking the other parties in diplomatic and normative terms. Those who control the contested territories are in an advantageous position vis-à-vis the challengers of the territorial status and should hence not consider it to be necessary to change the status quo. In reality, however, some countries have nonetheless changed the status quo mainly for domestic reasons.

Russia, despite acknowledging that there is a territorial dispute with Japan, has recently accelerated the economic development on the islands and appears to be upgrading its military presence in the Northern Territories. This was culminated by then Russian President Dimitri Medvedev’s visit to the islands in November 2010, the first visit ever by a Russian leader to the islands. Again in July 2012, Medvedev, this time as a Prime Minister visited the islands. There have also been other instances of high-profile visits from Moscow. Those actions provoked Japan and led to a deterioration of bilateral relations. The reason why Russia’s actions raised serious concerns in Japan is that Russia appears to be trying to change the status quo and presenting the new situation as a fait accompli, which from a Japanese perspective makes the eventual return of those islands to Japan more difficult and complicated.

The relationship seems to be improving under Japanese Prime Minister Shinzo Abe and Russian President Vladimir Putin. Abe visited Moscow in May 2013, demonstrating Tokyo’s willingness to improve relations with Russia. While very few people assume that the bilateral negotiations over the Northern Territories will proceed smoothly, the two sides seem to have succeeded in managing this territorial dispute, not least in preventing the dispute from damaging other aspects of bilateral relations – unlike the cases of Japan-South Korea and Japan-China.

When it comes to the idea of keeping the status quo, South Korea’s record on Takeshima has been far from satisfactory. Seoul has been consistently upgrading military and other facilities on and promoted touristic visits to the island. This was accompanied by President Lee Myung-bak’s visit to the island in August 2012, the first ever by the country’s President. These are all part of South Korea’s attempt to consolidate the effective administration and show it to the domestic as well as international audience.

Japan in contrast has been exercising a high level of self-restraint on the Senkakus, thereby not provoking China – no one lives there and the government has not put any police or Self-Defense Force presence or any observation facilities there. Furthermore the government does not even allow its own citizens to visit those islands, fearing that actions by visiting Japanese nationalist activists could further complicate relations with China. This restrained approach is substantially different from Russia’s and South Korea’s occasional provocative behaviours. Again, Japan’s such

 

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approach is a unilateral and spontaneous one taken for the sake of regional stability and diplomatic considerations, and not the result from any agreement – formal or informal – with China.

The Japanese government’s decision in September 2012 to purchase some of the islands of the Senkakus needs to be seen in this context. The government bought three islands including the biggest Uotsurijima Island from a private Japanese citizen. What stimulated the government’s decision was Tokyo Governor Shintaro Ishihara’s sudden announcement earlier in 2012 on behalf of Tokyo’s Metropolitan Government to buy those islands. He announced to build a small port and other facilities there. The central government led by Prime Minister Yoshihiko Noda feared that Tokyo’s purchase would upset the already tense situation over the Senkakus and decided, to buy those islands for the purpose of ensuring their ‘peaceful and stable maintenance and management in the long term’4. What the government intended, in short, was to maintain the existing status quo under the current circumstances.

There was no doubt that the reason why the Noda government decided to buy those islands was exclusively domestic in nature, which may not have been fully understood by the outside world, most notably in China. Consequently, Japan was in China accused of seeking to change the status quo by purchasing those islands, regardless of the government’s intention not to do so. There are a couple of significant points to be explored in this respect.

First, what was at stake was a ‘property’ issue – nothing to do with sovereignty or territory. As long as the islands are administered by the Japanese authorities, who owns the property is irrelevant, at least in legal terms. As Japan is a country respecting the principle of private property, even if a Chinese citizen buys an island in the Senkakus or elsewhere, that would not change Japan’s territorial borders (while such a probability would certainly cause political problems). Second, the Japanese government had been leasing those islands from the private owner since 2002. The government’s purchase of those islands, therefore, did not change anything on the ground. What has changed instead is China’s behaviour around the Senkakus. As discussed above, Beijing now appears determined to undermine Japan’s administration over the islands by physical means – deploying vessels and aircraft into Japanese-controlled waters and air space on a regular basis.

Choices for Europe

Europe – both as individual countries and as the EU as a whole– is not a direct party to any of the territorial and diplomatic disputes in Northeast

                                                              4 ‘Press Conference by the Chief Cabinet Secretary (Excerpts)’, Tokyo, 10 September 2012 (PM).

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Asia. Nor is it willing to get involved. Europe’s approach has been to call for peaceful solutions without taking particular position on the disputes. This approach is understandable and realistic. Furthermore, no European country possesses any substantial combat capabilities stationed in Asia. However, the lack of military capability and the absence of political will to get involved in potential conflicts in East Asia do not necessarily guarantee that Europe can always avoid hard choices if conflicts break out in the region. In this sense, the often-repeated rhetoric that Europe does not have strategic stakes in Asia and that its strength lies with the fact that it is a neutral player is not always helpful. Europe has indeed strategic stakes in the region and it may not be always able to defend its interests and values just by remaining neutral. The meaning of neutrality, which is often understood as a position of not taking side, may have to be re-examined.

Assuming that countries A and B were in conflict in Asia and country A undermined the freedom of navigation and other principles that Europe upholds in a manner inconsistent with international law and practice, it would not be in Europe’s interest to remain neutral between countries A and B. Instead, Europe would need to take side with country B in this case (although the structure of an actual conflict is likely to be much more complicated). While this is undoubtedly an extreme scenario and may not be an immediate concern, it still needs to be stressed that if Europe is serious about its engagement in Asia and Asian security, it cannot avoid such hard questions at least in the long term.

In the meantime, Europe’s more immediate challenge is to define the strategic interests it wants to defend in Asia, which needs to be complemented by a realistic examination on what costs and risks it is prepared to take in defending those interests. This does not have to involve military means. There are a number of non-military roles that Europe should be able to play – strengthening its emphasis on international law is one of the most conceivable ways that the EU can take as was demonstrated by the High Representative Catherine Ashton’s declaration in September 2012 on the situation in the East China Sea5. In determining Europe’s position, assessment of the involved parties’ behaviours in light of international law, practices and norms – including principles such as allowing the other party(ies) to disagree, maintaining the status quo and refraining from the use of force – as well as Europe’s interests and values would be essential.

                                                              5 ‘Declaration by the High Representative Catherine Ashton, on behalf of the European

Union on recent developments in East Asia’s maritime areas’, PRESSE 399, Brussels, 25

September 2012.