Can International Law Be an Obstacle to Peace? Some Thoughts on Taiwan’s East China Sea Peace Initiative

by Julian Ku

I had the privilege today to attend a conference in Taipei today discussing the “East China Sea Peace Initiative”.  The ECSPI is Taiwan’s proposal to reduce and maybe even eliminate the confrontation between China and Japan in the East China Sea over the Diaoyu/Senkaku Islands.  The ECSPI is not all that complicated.  1) Shelve Territorial Disputes;and 2) Share Resources Through Joint Development.  There is more to the proposal (but not much more).  President Ma of Taiwan put his personal imprimatur on this initiative with a speech this morning.

As it was a conference sponsored by a foundation closely linked with the Taiwan government, no one at the conference had much to say that was critical of this initiative.  Of course, no scholar or speaker I saw today came from China os it is hard to know what they might have said. But there is nothing wrong or objectionable to the ESPCI.

What’s interesting about the “shelve disputes” strategy is that eschews the formal legal resolution of particular questions and suggests plowing forward despite sharp differences on legal rights and obligations.  For instance, the ECPSI recommends “joint conservation and management” of the living (mostly fish) and non-living resources (mostly hydrocarbons) of the East China Sea.  Yet this proposal is preceded by a fairly long statement of the justness of Taiwan’s legal claim to sovereignty over those same resources.

“Never compromise on sovereignty,” President Ma recommended today, but he also then suggested that countries can share and develop resources each country believes it has sovereign legal rights over.  Isn’t this really compromising on sovereignty, while at the same time denying you are compromising on sovereignty?

The idea that we can shelve (in this case) legal disputes in international relations is not one that originated with Taiwan, but it is not surprising that Taiwan is the country proposing this strategy.  After all, Taiwan itself is the living embodiment of the success of avoiding legal resolution of complex sovereign claims.  In its relations with China, it has agreed to shelve the question of Taiwan’s ultimate legal status in favor of increasingly close economic and other relations.  Interestingly, this approach would also eschew international arbitration or judicial resolution of these arbitral disputes, since such legal proceedings would adjudicate, rather than shelve, the sovereignty issues.  In reality, this approach suggest international law, which defines rights and obligations, is an obstacle to peace, rather than a facilitator of it.

I do hope Japan and China consider the Taiwan ECSPI.  But I have my doubts as the viability of continuing to “shelve” questions about sovereignty.  At some point, these questions will re-emerge and the “joint development” will actually result in giving up sovereign resources.   Some more stable equilibrium is probably needed.  My guess is that China feels the time for a new equilibrium is getting closer.

http://opiniojuris.org/2014/08/05/just-long-can-shelve-sovereignty-disputes-thoughts-taiwans-east-china-sea-peace-initiative/

3 Responses

  1. Very interesting perspective Julian. Thank you.

  2. I believe this joint development vision is in place between Japan and Korea with respect to the contested delineation issues (Dokdo/Takeshima). Not sure it has been a formula for success. I think that China and Japan is a much harder sell given the enmity and regional competition between them. Taiwan’s proposal might well be seen as trying to curry favor with Beijing rather than as a neutral proposal. It is basically the let us make money idea, but the difficult issues if management as well as exploitation if the resources in contested areas with ambiguous lines of sovereign authority are difficult to paper over. I hope everyone can go short of war on all these, but I am pessimistic.

  3. Taiwan’s proposal IS trying to curry favor with Beijing, and simply reproduces positions Beijing used to hold, when it was weaker. It’s quite typical of Ma to proffer an out of date solution to a problem.

    Since China’s claim has no basis in history or international law, and China appears not to want or to be able to negotiate, I very much fear with Benjamin Davis that this can only end in armed conflict.

    Note further that in Chinese expansionist propaganda, the Senkakus are connected with the equally unsupported claim to Taiwan, and with the coming claim to Okinawa, about which various hints and remarks have been dropped over the last few years. This context is often missing from discussions of the Senkakus problem in the media and online. This is another reason why Japan does not want to engage in a camel’s-nose-in-the-tent solution like shared sovereignty/shelved sovereignty.

    Michael Turton
    The View from Taiwan

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