ICAS Special Contribution


Six Reasons Why Japan Should Propose Taking the Senkakus Issue to the
International Court of Justice

Larry A. Niksch

Institute for Corean-American Studies, Inc.
965 Clover Court, Blue Bell, PA 19422
Email: icas@icasinc.org

Biographic sketch & links: Larry A. Niksch

[Editor's note: We gratefully acknowledge the special contribution of this paper to ICAS by Larry A. Niksch. sjk]

Six Reasons Why Japan Should Propose Taking the Senkakus Issue to the
International Court of Justice

Larry A. Niksch

Specialist in Asian Affairs, Congressional Research Service (retired)
Senior Associate, Center for Strategic and International Studies
Fellow, Institute for Corean-American Studies1

May 2, 2014

By all accounts, the situation around the Japanese-administered Senkaku islands is worsening. China, which claims them as the Diaoyu islands, is steadily increasing its penetration around the islands; and that presence has a growing military component to it. Naval and maritime patrol craft frequently enter the 12-mile territorial limit around the Senkakus. China now deploys fighter jets near them. China's proclamation of an Air Defense Identification Zone over and around the islands create a new danger that China will deploy its fighters directly over the Senkakus in close proximity to Japanese patrol aircraft. Japan has increased these patrols and has strengthen its naval presence.

The danger that China's penetration around and over the Senkakus will lead to a military clash is clear. At the Davos international economic conference in January 2014, the Financial Times quoted a prominent Chinese participant as advocating the landing of Chinese on the islands; and Japanese Prime Minister Shinzo Abe stated that the situation between Japan and China was similar to that between Great Britain and Germany when World War I broke out. Another historical analogy is the Marco Polo Bridge incident of July 1937 when Japanese military penetration near Beijing resulted in clashes with Chinese Nationalist forces and the subsequent full-scale Japanese invasion of China. In February 2014,, U.S. Navy Captain James Fanell warned at a conference in San Diego that China has been training for a "short, sharp war" to gain control of the islands 2. The Japanese Army in 1937 also expected a short, sharp and victorious war against China, the kind of miscalculation that has plagued major powers from 1914 to Iraq in this century.

Both China and Japan say that they are interested in a bilateral dialogue, but they condition this position on contrary positions on whether there is a "dispute" over the Senkakus. China insists that Japan accept that a dispute exists. Japan rejects defining the issue as a dispute.

This relates directly to the U.S. role in the issue. Three successive U.S. administrations have recognized Japanese administrative control and administrative rights over the Senkakus. They also have asserted that the Japan-U.S. Security Treaty covers the Senkakus, thus bringing into the picture a direct U.S. defense obligation in support of Japan's control over the islands. However, U.S. administrations have stated that they take no position toward the competing Japanese and Chinese claims. This puts the United States in the position of believing that a dispute exists. The Obama Administration repeatedly has urged Tokyo and Beijing to resolve the issue through negotiations. The U.S. Senate passed a "sense of the Senate" resolution in November 2012 reiterating the U.S. position and stating that the United States "supports a collaborative diplomatic process by claimants to resolve territorial disputes." 3 During his trip to Japan in April 2014, President Obama reiterated most of these U.S. positions.

A number of experts have urged Japan to deal with this diplomatic impasse by proposing to China that they jointly take the Senkakus issue to the International Court of Justice in the Hague and ask the Court to rule on the competing claims. The Japanese Government has rejected this proposal. It contends that such a proposal would amount to an admission that a dispute exists.

Japan's position, however, rests on a number of complex factors that are more important than its legal position on the dispute issue. It seems to me that the Japanese Government's thinking fails to take these other factors into sufficient consideration. In this context, it seems to me that the Government so far fails to recognize a number of benefits and advantages that would accrue to Japan if it proposed to China taking the Senkakus issue to the International Court of Justice (ICJ). I would cite six advantages.

First, an ICJ proposal would strengthen U.S. support for Japan's overall position on the Senkakus, including the likelihood of U.S. military support if China should try to use force to gain control of the islands. Japan would demonstrate that it is heeding U.S. calls for a diplomatic settlement of the issue. As important, it would show the United States that Japan was seeking to establish international mechanisms to settle maritime disputes. This would influence especially an Obama Administration, whose leader emphasize that the 21st century should involve new, internationally sanctioned means of nations settling disputes. It also would be an appropriate response to U.S. urgings that Japan seek to reduce military tensions with China.

Then, there is the question of U.S. military support for Japan through the application of the U.S.-Japan Security Treaty. While U.S. officials have stated that the Security Treaty covers the Senkakus, Japanese doubts about the strength of the U.S. commitment have been reported. The Economist of December 21, 2013, cited "fears in Japan that America might not honour its assurances that the security guarantee covers the tiny, uninhabited Senkakus." Reuters News on March 10, 2014, reported on the frustration of Japanese defense officials that U.S. defense officials were avoiding the preparation of military contingency plans for responding to potential Chinese military acts. President Obama's statements in Tokyo in April 2014 may ease these doubts but we do not know for how long.

I also can testify to the shakiness within the State Department over making a U.S. defense commitment to Japan on the Sankakus. In 1996, I wrote for the Congressional Research Service a report on the Senkakus that concluded that the U.S.-Japan Security Treaty covered the islands. At that time and afterwards, the State Department repeatedly avoided questions posed to it as to whether the Treaty did cover the islands. State Department officials told me that they were unhappy with my report, no doubt because it made their evasions more difficult. Two years later, the U.S. Defense Department affirmed my conclusion. But, I have no doubt that the State Department's position on supporting Japan still is soft.

Finally, recent developments on the Japan history issue have been negative for U.S.-Japan relations. The Obama Administration and a number of U.S. experts reacted negatively to both Prime Minister Abe's visit to the Yasukuni Shrine in December 2013 and to the subsequent verbal attack on the United States by a recent appointee to the board of directors of the Japanese broadcasting company, NHK. He accused the United States of fabricating war crimes against Japanese leaders during World War II in order to cover up U.S. war crimes. Tensions over the Japanese history issue remain high with China and South Korea. An intensification of history issue can only weaken support for Japan on the Senkakus issue. A Japanese proposal to take the issue to the International Court of Justice would help to neutralize this negativity.

A second advantage for Japan is that there is a high likelihood-almost a certainty-that China would reject a Japanese proposal that the two governments take the issue to the ICJ. The ICJ requires that all parties to a dispute agree to submit a dispute to the ICJ. Since maritime disputes broke out in the 1990s involving China, the Chinese Government has taken a hard, unyielding position that it would settle disputes with other governments only through direct negotiations and that "third parties" should stay out. China repeatedly has warned the United States not to get involved in these cases. It even has been reluctant to negotiate with the Association of Southeast Asian Nations (ASEAN) over its maritime disputes with the Philippines, Vietnam, and Malaysia. Most recently, China says it will refuse to participate in the case submitted by the Philippines to the Law of the Sea tribunal in which the Philippines seeks a ruling against China's claims in the South China Sea. China contends that the Philippines can seek a settlement only through direct negotiations with China.

There is no reason to believe that China would reverse its position if Japan made an ICJ proposal. The Chinese Government undoubtedly realizes that if it accepts one proposal for involvement of an international legal body in any of its territorial disputes, it would come under pressure to accept international involvement in its other disputes. But, a Chinese rejection would drew a near unanimous negative reaction from the international community. Other East Asian states' suspicions of China's intentions would grow. European Union governments likely would criticize Beijing. Moreover, an ICJ proposal followed by a Chinese rejection would weaken severely China's current international propaganda campaign (carried out in numerous countries) to exploit the Japanese history issue as showing a Japanese plot to "remilitarize." China would be perceived more as the country seeking to use military power against its neighbors. The U.S. reaction to a Chinese rejection would be decidedly negative.

The third advantage is that an ICJ proposal would strengthen deterrence against Chinese military moves against the Japanese in the Senkakus. One should keep in mind that deterrence in situations like the Senkakus involves more than military measures. Diplomatic proposals and public rhetoric also send important signals to potential adversaries. The Chinese Government would realize that a Japanese ICJ proposal and a Chinese rejection of it would isolate China diplomatically and neutralize China's global diplomatic-propaganda campaign against Japan. China would also understand the advantage to Japan of strengthening overall U.S. support for Japan and increasing the likelihood of U.S. military intervention if China resorted to military force.

A fourth advantage would be to give Japan greater justification for new military measures around or on the Senkakus if the Chinese military buildup and probes continue. The Japanese Government would need such justification to deal with political elements at home that are reluctant to confront China over the Senkakus. The Obama Administration no doubt would continue to urge Japan to exercise military restraint; but an ICJ proposal also no doubt would weaken U.S. opposition to rationally conceived military measures by Japan.

Fifth, a Japanese ICJ proposal would give Japan an opening and credibility to intervene in the Philippines' suit against China before the Law of the Sea tribunal. The Philippine suit is an extensive challenge to China's maritime claims in the South China Sea, including Beijing's nine-dash line. Lawyers who are representing the Philippines before the tribunal have said that third governments could submit opinions to the tribunal on the Philippine suit. Japan's role could be crucial since the United States is not a party to the Law of the Sea Treaty and thus could not submit an opinion to the tribunal. The Obama Administration has increased its criticisms of China's claims to the South China Sea and undoubtedly would welcome Japan's involvement in support of the Philippines. An ICJ proposal, too, would parallel the Philippines' proposal to establish international mechanisms to resolve maritime claims and disputes. Japanese involvement in the Philippines' suit would demonstrate Japan's commitment to its January 2013 agreement with the Philippines for "maritime cooperation" and "strategic partnership."

The sixth advantage of an ICJ proposals for the Senkakus would be Japan's establishment of a record of consistency relative to its earlier proposal to South Korea that they take their dispute over islets in the Sea of Japan (Takeshima to Japan, Dokdo to South Korea) to the International Court of Justice. The consistency and citation of dual ICJ proposals for the two island groups would strengthen further Japan's credibility on both issues. An ICJ proposal for the Senkakus would blunt and probably silence the South Korean criticism of Japan's ICJ proposal for Takeshima-Dokdo as a "threat."

Little known is the fact that the Japanese Government has stated in reference to the Senkakus that it accepts the "compulsory jurisdiction" of the International Court of Justice. In acknowledging this, Japanese officials have called on China to accept "compulsory jurisdiction." However, Japanese officials have stopped short of making a formal proposal to China to jointly take the issue to the ICJ on the basis of accepting "compulsory jurisdiction." Instead, they have called on China to make the initial proposal, promising that Japan would accept it. Japanese Foreign Minister Koichiro Gemba wrote in the International Herald Tribune on November 21, 2012, that China should take the initiative toward the ICJ because "it is China that is seeking to challenge the status quo."

The Japanese Government has done little to publicize this position even in the face of China's international propaganda campaign. Moreover, Japan's position comes close to being a contradiction in accepting ICJ jurisdiction but holding that only China must make a proposal to take the Senkakus issue to the ICJ.

It seems to me that the issue of the role of the International Court of Justice in the Senkakus issue is an important test of whether the Japanese Government is able to develop what I call "smart diplomacy." Smart diplomacy would maximize diplomatic, political, propaganda, and military advantages for Japan in this complex set of factors. Today, it is China that is acting assertively in all of these areas. Japan needs "smart diplomacy" to counter this comprehensive Chinese strategy and to counter further Chinese pressure on Japan's physical and military position around the Senkakus.


1 The views expressed are solely those of the author.
2 David Ignatius, Stormy seas in the Pacific, Washington Post, February 27, 2014, p. A17.
3 The Nelson Report, November 30, 2012.

This page last updated May 6, 2014 jdb