Why Asia Should Say No to Mr. Abe’s Vision of International Law for Asia

[Editor’s note: the English version of post was first posted on Huffington Post and can be found here; and the Chinese version can be found on Guancha.cn here]

SHANGHAI — A few weeks ago at the Shangri-La Dialogue in Singapore, Shinzo Abe made a bold pitch to Asia to buy in on a new type of Japanese leadership. According to Mr. Abe, the peace that is at the foundation of the Asia Pacific’s unprecedented growth can no longer be guaranteed. Without naming China by name, Mr. Abe warns of a new danger that looms on the horizon. The Asia Pacific needs Japanese leadership and a new affirmation of “international law.”

These are heavy words for uncertain times. But should Asia buy in? In his speech, Mr. Abe talked extensively about The United Nations Convention on the Law of the Sea and the freedom of navigation in the South China Sea, declaring his government’s strong support of the Philippines and Vietnam in their claims against China.

From China’s view, this was a provocative and dangerous articulation of law. China has never taken any actions or made any claims in the South China Sea that limits the freedom of passage. That is made abundantly clear with China’s ratification of the UNCLOS in 1982 and its signing of the Declaration on the Conduct of Parties in the South China Sea in 2002 reaffirming its “respect for and commitment to the freedom of navigation in and overflight above the South China Sea.” Pursuant to a deadline set by the UNCLOS ¹, on May 7, 2009, China submitted a map and a letter to the U.N. detailing the extent and bases of its “nine-dashed” claim. When Philippines officials publicly expressed concerns about freedom of passage in the South China Sea, the Chinese government promptly reaffirmed declaring, “the freedom and safety of navigation in the South China Sea is assured.”

If China’s claims are a threat, one might ask, why are those of the other claimants not? For example, if China’s stance on foreign military surveillance is a problem, why is the the same stance taken by the Philippines and Malaysia not? What about the Philippines’ dubious “picture frame” claims over a vast rectangular swath in the South China Sea as its “archipelago waters” and its controversial insistence of treating this swath as its “internal waters” ² — thus explicitly repudiating any freedom of passage, including freedom of “innocent passage, through this vast area? ³ Even if all of China’s claims were removed, most of the South China Sea would still be claimed by one or more of the other competing claimants.

Perhaps Mr. Abe believes that it is illegal for one nation to claim too much exclusive economic zone in a single contiguous zone — or to claim an EEZ that extends too far out from a nation’s main coastlines. But if he is serious about conjuring up such a law, would he also apply the same law to Japan’s EEZ lying beyond its main islands — covering an area larger than the disputed areas of the South China Sea, stretching at points over a thousand miles from Japan’s main islands –based on (tenuous) claims to minor islands spread thinly across the Western Pacific? ⁴

The current maritime disputes in the South China Sea have never been about the freedom to navigate the seas, but about various nations’ competing claims on which the UNCLOS says nothing about. All the claimants understand as much, as can be assessed from their ratification statements. Thus the Philippines pronounced in its ratification statement that UNCLOS did “not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto.” Similarly, Vietnam “reiterate[d] Viet Nam’s sovereignty over the Hoang Sa and Truong Sa archipelagoes.” China, too, “reaffirm[ed] its sovereignty over all its archipelagos and islands.”

In Singapore, Mr. Abe also intoned China to be a threat to regional peace in refusing to participate in Philippine’s arbitration case. That is another dangerous mischaracterization of law. Arbitration is an option when mutually agreed to. Absent mutual agreement, the primary means for resolving disputes under UNCLOS is through negotiations (Article 279), exchange of views (Article 283), and conciliation procedures (Article 284) (See also, Articles 1 and 33 of U.N. charter).

The right to opt out of UNCLOS-provided maritime boundary arbitration at any time is guaranteed by Article 298. Many nations that have explicitly exercised the right include Australia, Canada, Chile, Denmark, France, Portugal, Italy, Spain, South Korea and Russia. The truth is, absent explicit political agreement, there is something very illegitimate about having a few individuals impose solutions on disputes that affect the interests of millions of people (or 1.4 plus billion as the case may be with China).

Mr. Abe’s unhelpful desire to declare and foment disputes in the South China Sea marks a great contrast to his government’s steadfast refusal to acknowledge any dispute in the East China Sea. Over the last few years, the world has come to witness the tense and sometimes dangerous confrontations between Japan and China over the Diaoyutai/ Senkaku Islands. The source of these disputes can be traced back to 1972 when the U.S. handed “administrative control” to Japan and both R.O.C. on Taiwan and P.R.C. on Mainland protested. ⁵ When Japan and the P.R.C. decided to normalize their relations later that year, however, leaders from both nations agreed to shelve the disputes for the future. ⁶

From China’s perspective, the Dioayutai islands have been claimed and administered by China for centuries and were forcefully taken from China by Japan during Japan’s military aggression across Asia in the late 19th and arly 20th century. Since a condition of Japan’s surrender in WWII is the return of all islands it had militarily seized from other Asian powers during that spate of aggression, the Diaoyutai islands belong to China. ⁷ From Japan’s perspective, the islands were “discovered” by Japan in late 19th century, and further, the U.S., in the aftermath of WWII, controlled and occupied the islands and gave the islands back to Japan to administer in 1972. The islands belong to Japan based on history and alternatively on the principle of “fait accompli.”

Japan and China obviously hold wide and deeply-rooted differences over history, but one would think Mr. Abe would in 2014 at least acknowledge a dispute! The exceptional means by which Mr. Abe’s government approaches international law is dangerous and destabilizing. Japan’s angry response to China’s announcement of an Air Defense Identification Zone in the East China Sea demonstrated just how dangerous.

Immediately, Mr. Abe’s government declared China’s ADIZ to be “invalid.” ⁸ Japanese officials accused China of violating Japan’s ADIZ and of unilaterally changing the status quo in the East China Sea. Mr. Abe forbid all Japanese aircrafts from identifying themselves in China’s ADIZ and tried unsuccessfully to lobby other nations to do the same.

The inconvenient fact for Japan is that Japan claims the largest ADIZ in Asia, one that it has expanded multiple times throughout the years, each time unilaterally without ever consulting its neighbors. If Japan’s ADIZ “legal,” why is China’s “illegal”?

The first ADIZ in the world was created by the U.S., unilaterally, in 1950. The legal justification was straight forward. Since all nations enjoyed the freedom of navigation right up to the U.S.’s territorial airspace, a potentially dangerous situation above the near seas could arise when the U.S had to scramble aircrafts to intercept, meet and track unidentified aircrafts. To reduce the risk of serious incidents of misunderstanding and accidents, the U.S. provided a mechanism by which these aircrafts could identify themselves. The U.S. did not proclaim that aircrafts are legally required to identify themselves in these international airspaces, although it did generally expect them to do so since cooperation made sense.

China — like the U.S. — invoked a similar rationale to declare an ADIZ in its adjoining international airspace. The fact that China’s ADIZ overlaps that of Japan was nothing exceptional. Nations sharing adjoining international airspaces would naturally look to the same airspaces to address their defense concerns. The fact that China’s ADIZ covers the disputed Diaoyutai / Senkaku is also unexceptional given that Japan’s ADIZ also covers the same disputed islands. ⁹

In reality, China’s ADIZ is quite unexceptional, defining a modest area that is entirely within a few hundred miles from China’s industrial heartland (Shanghai delta area) and political center (Beijing area). By contrast, both the U.S. and Japan claim huge ADIZs that stretch deep into the open seas, at times over a thousand miles from any industrial or political center.

In the Shangri-La Dialogue, Mr. Abe boldly offers Asia an order based on Japanese leadership and “international law.” Yet in case after case, Mr. Abe’s government has shown that Japan’s conception of an Asia ruled by “international law” is really just an Asia ruled under Japanese mandate. All Asian nations — including those currently being befriended by Japan — should reject it.

[Editor’s note: the paragraph referring to the Cairo and Potsdam Declaration was re-added on 6/30/2014]