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  • Oct 18, 2014
  • Updated: 10:51am
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PUBLISHED : Tuesday, 06 May, 2014, 5:10pm
UPDATED : Wednesday, 07 May, 2014, 1:54am

International arbitration the way to go for Asia's maritime disputes

Frank Ching believes territorial disputes in Asian seas can be settled through the world court, if acceptance of its rule isn't selective

BIO

Frank Ching opened The Wall Street Journal’s bureau in Beijing in 1979 when the U.S. and China established diplomatic relations. Before that, he was with The New York Times in New York for 10 years. After Beijing, he wrote the book Ancestors and later joined the Far Eastern Economic Review.
 

Media attention during Barack Obama's four-nation Asian trip focused, understandably perhaps, on the three countries that are US allies - Japan, South Korea and the Philippines - and, in particular, on developments with military significance, such as the American president's assurance that the US-Japan security treaty covered the Senkaku, or Diaoyu, islands claimed by China.

Conflict, after all, is much more newsworthy than peace. So when Malaysian Prime Minister Najib Razak issued a joint statement with Obama supporting the use of international arbitration to resolve South China Sea disputes, it received scant coverage.

If Japan were to change its stance and accept the court's jurisdiction on its dispute with China, it would put great pressure on Beijing to also accept international arbitration

That was unfortunate. Malaysia, after all, is a claimant in these disputes, although it appears to have adopted a deliberately low profile.

With Malaysia, the dispute is over James Shoal, which China calls Zengmu Reef. When Xinhua reported in February that a Chinese flotilla had patrolled waters off the reef, for example, Malaysia did not issue a protest but insisted that no such incident had taken place.

It is important that Malaysia has now publicly endorsed the principle of "resolving territorial and maritime disputes through peaceful means, including international arbitration, as warranted".

On one level, it signalled its acceptance of the principle of international arbitration. In fact, Malaysia has a history of accepting rulings of the International Court of Justice in settling disputes with its neighbours; Indonesia in 2002 and Singapore in 2008.

On another level, Malaysia was lending support to the Philippines, which is pursuing an arbitration case regarding its disputes with China. Beijing, however, has rejected the dispute-settlement mechanism provided for by the UN Convention on the Law of the Sea and refuses to take part in arbitration proceedings.

In one way or another, all four countries on Obama's itinerary are involved in maritime disputes with China, and also among themselves. There are disputes between Japan and South Korea and between Malaysia and the Philippines.

There is a tendency for countries to reject arbitration when they are in control of the disputed territory but to be open to settlement by the world court in cases where the territory is not under their control.

Thus, Japan has agreed to let the International Court of Justice decide on Takeshima, an island known to South Korea as Dokdo. But Seoul, which is in control, refuses to arbitrate. However, Japan refuses to let the world court resolve its dispute with China over the Senkaku/Diaoyu islands and, in fact, won't acknowledge that there is a dispute.

If Japan were to change its stance and accept the court's jurisdiction on its dispute with China, it would put great pressure on Beijing to also accept international arbitration in the resolution of disputes in both the East China and South China seas.

This would be a big step forward for the rule of law in international relations.

Frank Ching is a Hong Kong-based writer and commentator. frank.ching@gmail.com. Follow him on Twitter: @FrankChing1

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This article is now closed to comments

536a1389-d3c0-422a-9d59-08ed0a3209ca
china strongly prefers bilateral talks with each nation in dispute with them because they know they would always have the upperhand (i.e. bribe, bullying, blackmail). it's clear as daylight why china doesn't want arbitration on islands that are SO SO FAR AWAY from mainland china and only using a dubious historical basis as proof of claim that is almost a 100% to lose in modern day arguments, especially in international law. They know they'll get embarrassed if they go that path. So they'd rather use force, which sadly is a sign that China is not learning from history.
likingming
If someone comes to me and claim my house is his and asks me to settle in court, I'll never do so and simply ignore this idiot.
321manu
Of course, because it is YOUR house, and you have the deed and land title in your name. Obviously the other person has no claim. But that's hardly comparable to these rock pile disputes we're talking about here, because there is no clear and recognized ownership. Ownership of your house isn't disputed. Ownership of these rock piles is. It's apples and oranges.
likingming
Only those, the philipines & vitname, who do not have clear evidence and are not certain about their claims, would do so.
321manu
Neither do China, Japan, or Taiwan, have clear legitimate claims to any of the rock piles, depending on the rock pile in question. Such and such a people may or may not have fished there hundreds of years ago is hardly an iron-clad assertion of sovereignty. Dotted lines on old maps aren't any better.
And besides, that's why they're "disputed". If one of these countries was making a "claim" on territory for which sovereignty is clearly recognized to belong to another nation, then that would be comparable to "someone coming and claiming your house". That would be silly indeed...but that's not what we're talking about here.
321manu
mfchung:
'mine is better than yours'?? What are you? In kindergarten?
Are there territorial disputes in Australia, NZ, and America of the same form that is being discussed in this article in SE Asia? If so, can you name some? Or are you comparing apples and oranges?
And btw, let's use some of your "logic". If we turned the clock back to 1600 (or any prior year of your choosing), the situation wrt these piles of rocks would be ABSOLUTELY THE SAME. They would've been disputed then, just as they are now. So I'm not sure how your "logic" solves anything.
It's not racism that you smell. It's your own stupidity.
321manu
This is a pipe dream. On any given disputed territory, good luck getting the parties to all agree to an arbitration process. Then more good luck getting any party aggrieved by the results of said arbitration to actually accept the ruling.
The national pride at stake among all the involved nations far outweighs the actual value of these uninhabitable rocks in the middle of the sea...and that includes the potential natural resource riches that lay under the sea floor. And because we're speaking of national pride (especially among Asian countries where "face" is valued more than reason and logic), it becomes non-negotiable. If all the countries were being pragmatic and reasonable, they would just form a multi-national conglomerate and proceed towards exploring for and exploiting said resources. Instead, we get boats patrolling rock piles.
536a1389-d3c0-422a-9d59-08ed0a3209ca
i have to say this is ideal. there's still be disagreements as to the percentage sharing of resources since there is no clarity as to which nation really owns them. if china really believes and have very strong basis to claim the disputed islands, then they shouldn't hesitate to prove it in court. if arbritation is being done in disputes in our local communities as a sign of a civilized people, why can't this be done in this case?
mfchung
"Frank Ching believes territorial disputes in Asian seas can be settled through the world court, if acceptance of its rule isn't selective" - cloud cuckoo land. Why stop at Asian seas or Asia for that matter? Last time I looked, the natives in Australia, NZ and America were all asking for their land back.
321manu
Yes, that's great logic. Let's return the world to the way it was circa 1600...or is that far enough back in time for you?

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