Alexander Gillespie: Use law, not bluster to settle dispute

A Japanese surveillance plane flies over the disputed islands. Photo / AP

Fight for chain of islands in the East China Sea should be settled via the legal system, not with bloodshed.

Territorial squabbles over uninhabited islands should not be one of the reasons that people are allowed to kill each other. This was the type of reason that befitted land-grabbing countries, armed with weapons, not justice, in the 19th century. It is a particularly undignified reason for a global superpower like China, rich beyond measure in culture, economics and people, in the 21st century.

However, this is exactly what they are contemplating. Five islands and seven reefs in the East China Sea, dotted between China, Japan and Taiwan, with a total size of about 7sq km are the cause of the dispute. Incredibly, these geographically insignificant lumps of dirt could be the fuse to a regional, if not global, war.

The Japanese call these dots the Senkaku Islands. The Chinese call them Diaoyu. All of these areas are uninhabited. The value of the islands is not in their land. The economic benefits of the area, in terms of the accompanying fishing grounds and potential energy reserves, although notable, are trifling compared to the potential economic costs of a conflict. The real price of the disputed islands is in their symbolic value.

Two giants, one much bigger than the other, want them for reasons of pride, principle and history. Here, China is squaring off against Japan. Behind Japan sit the United States and South Korea, tied together by military alliance. Taiwan also claims the islands. Both China and Japan agree the islands originally belong to Taiwan. China adds that the islands were used by the Chinese of Taiwan back to the middle ages.

The problem is Taiwan is also claimed by China. Sensibly, Taiwan is watching this dispute from the sideline. The sideline is a smart place to be as the giants, locked into a dangerous game of power, pride, and memory, eyeball each other while playing diplomatic chess and ratcheting up the military heat.

This heat has so far involved locking weapon systems on to opposing vessels, enhanced use of drones, and of late, the unilateral imposition by China of an Air Defence Identification Zone. There is nothing novel in the imposition of such a zone, whereby planes must declare themselves and follow certain protocols before proceeding through the airspace claimed by a country. However, placing an Air Defence Identification Zone over territory that is highly disputed is unusually provocative.

The United States responded by flying two unarmed bombers through the disputed space, ignoring the attempted Chinese imposition. While China did not respond, the question is what will happen when the Japanese follow the same path, especially if with unmanned drones ? Conversely, Japan is considering shooting down Chinese drones if they venture into the same area. The risks of miscalculations or unintended consequences are multiplying by the hour.

The United States acted as it did for fear of allowing such unilateral declarations to be repeated in other parts of the world. The precedent value of allowing such acts to go unchallenged is extreme. China is already in territorial disputes with, among others, India, Bhutan, North Korea, Vietnam and the Philippines.

If China decided to follow the same process and unilaterally impose Air Defence Identification Zones in other disputed areas, conflicts could easily break out. Undeterred, China has defended its action by saying that its claims to the islands are legally well founded. Japan has exactly the same rhetoric.

Japan acquired the islands - as part of Taiwan - after the Sino-Japanese War was concluded by treaty in 1895. Japan also argues the islands were uninhabited at this point. After World War II, when Japan was obliged to return all of the territories it acquired, part of this package of returned property included Taiwan.

China argues that the islands were part of this deal. The Japanese disagree. They maintain that although they renounced their claim to Taiwan, the islands were not included in the renunciation. Moreover, because they were explicitly returned to Japan after a period of American trusteeship in 1971, they are the sovereign territory of Japan.

Both sides have good legal arguments to make. Both should seek to resolve the matter through diplomatic settlement or through established legal channels. The recent work of Russia in Syria with its chemical weapons, or the United States with Iran with its nuclear ambitions are exemplars of how superpowers should behave, where war is avoided by negotiation. If diplomatic discussion is impossible, the matter should be referred to the International Court of Justice.

The jurisprudence of the court is rich in this area, as the court often deals with such questions. These questions may be expected to proliferate, as from the Arctic to the Antarctic, more conflict resolution in disputed spaces is required than ever before. This is where the matter should be dealt with. This is where a leading superpower should be placing both its case, and its prestige.

China now has the chance to show the global community that it will settle is disputes peacefully, via the rule of law, not the power of bluster. This is obviously the right thing to do, and as Confucius said, "To see what is right, and not to do it, is want of courage or of principle".

Alexander Gillespie is Professor of Law at Waikato University and author of The Causes of War (2013, Oxford).