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