In his book On China, Henry Kissinger mentions the Sino-Indian War of 1962. Indian and Chinese troops were locked in a stalemate over a territorial dispute in the Himalayas based on two different historical versions of their territorial boundaries. Mao Zedong searched into Chinese tradition and, based on a reasoning grounded in ancient principles, led a strong attack on Indian positions but later retreated to the previous line of control.

Japan’s concern over territorial disputes with China is thus not unreasonable. This example with India demonstrates that history and ancient principles are very important elements in the conduction of foreign affairs with China and could lead to deep conflicts, even if for a short time, and amidst a general understanding that both nations are, in most periods of time, friends. In the light of Japan and China’s long, complex and sometimes contentious history, one cannot disregard a myriad of reasons, which could amount to major undertakings to assure a territorial supremacy.

The Senkaku/Diaoyu Dispute

The current worrisome Sino-Japanese territorial dispute is over a set of islands called the Senkaku by Japan, or Diaoyu by China. The Senkaku/Diaoyu is a group of inhabited islands located in the East China Sea between Japan, China and Taiwan. The islands were officially incorporated by Japan in 1895 on the basis that they were terra nullius and not under control of the Qing Empire. Control of this set of islands passed to the United States after the Second World War and since 1972 they have arguably been administered by Japan. In the 1970s, China first contested Japanese sovereignty over the Senkaku/Diaoyu islands (affirming that the land belonged to them before the Japanese incorporation). Each country now argues they have historical reasons to control this territory and each claims that the other had previously acknowledged their historical sovereignty over the islands.

The international community closely follows this dispute, especially because of the political and economic importance of both Japan and China. But the dispute also reaches beyond East Asia and may involve the United States, which has potential obligations to Japan under the Treaty of Mutual Cooperation and Security in the event there is a military conflict over the islands.

Debate over this issue ranges from legal questions of the right of possession and ownership over the islands to concerns about the need for more investment in military defence as well as broader and divergent political and historical interpretations. This last point resonates strongly with Japan, which knows that historical principles and tradition can be a decisive reason for military and political action by China. For their part, the Japanese may seek the potentially Herculean task of amending their pacifist constitution to allow for a stronger military system, which requires massive support of both the Diet and the population.

A war would be generally regarded as ill-advised, possibly illegal and probably unwanted by both countries. China and Japan’s economies are increasingly interdependent. The East Asian future and the need for continuous growth depend on an economic and political partnership between both countries. However, this could be seen not through the lenses of possible wars or the furthering of political grievances. What we face here is an opportunity: a chance to deepen the rule of law in the East Asian context and consequently strengthen the arm of international law.

I believe this territorial dispute is an opportunity to reshape the international relations in East Asia based on what is common and complementary between China and Japan. Rather than examine their points of contention, this territorial dispute could be a door to examine the points of congruence between Japan and China, which could further strengthen the relations between these two important nations. This dispute demonstrates the need for a rule of law mechanisms that take into account their cultural and historical context and also presents the possibility of further extending it.

Confucian International Law

International law is not really a European creation or a solely Western enterprise. Stephen Neff, in his book Justice among Nations, argues that if we understand international law as comprising of general principles based on philosophical framework instead of a mere myriad of state practices, then we can confidently point to Ancient China as its birthplace. This historical understanding of international law was deeply rooted in Confucian tradition and has four key elements. First, there is an emphasis on deference and hierarchy (e.g.: of children to parents, of younger to older siblings and of society as a whole to the ruler). Secondly, the Confucian international law is rooted in the notion of reciprocal duties coupled with a sense of nobleness. Thirdly, this system of duties contributes to a harmonious and well-ordered society in which individuals have specific roles to play. Finally, this system focuses on benevolence (including of the ruler) and virtue as key aspects to inspire and educate society, including the subjects of the sovereign. This is a theory grounded in pacifism.

These key elements of the Confucian international law could easily describe both China and Japan. These nations are deeply connected and have influenced each other throughout history. Their common Confucian roots can work as a pathway to create a legal bridge focusing on the common elements instead of on things which could set them apart in order to establish systems of communication grounded in the rule of law. Furthermore, this could be crystalized in an international organization, which would stress their core cultural and legal values and peacefully implement a system of conflict resolution. An ‘international organization’ is also not a Western invention. For example, during the Spring and Autumn Era (722-481 B.C.) and especially the Warring States period of Chinese history (481-221 B.C.), a number of State leagues were formed by multilateral treaties to coordinate agreements, trades, extradition and dispute resolutions under a tributary system.

It is clear that Japan and China share core values and aspects of legal culture that can be traced back to the Ancient times. Nowadays, Japan can play a key role in developing an East Asian and world-oriented system whereby this region’s culture and history are understood through the lenses of modernity and human rights. Perhaps no other state has so impressively managed to merge ancient East Asian and deeply held Japanese cultural values with modern western traditions. Both China and Japan would have equally important contributions to this East Asian system: China in rescuing its Ancient tradition of Confucian law of nations; and Japan in providing its strong and effective tradition of rule of law as a framework to guide international relations in East Asia. Such a model would be based on pacifism, rule of law and human rights.

Especially after the Constitution of 1946, Japan’s legal system has been strongly grounded in the respect of the rule of law, pacifism and human rights. In modern times, Japan has successfully merged individual and communitarian perspectives to provide the foundation for a stable and prosperous nation. Japan’s deep Confucian values, maintained within a modern and stable system of law, can contribute to a strong regional international organization in East Asia which would have the power to settle international disputes and take into account the region’s cultural and historical values and nuances.

Unilateral arguments, even those based on international law, are destined to fail. Whether one asserts sovereignty over the Senkaku/Diaoyu Islands based on the distance from a shoreline (based on the requirements of the Exclusive Economic Zone, for example) or on who exercised effective control over a longer period of time, neither argument will settle the conflict. Only a forum based on a congruent view merging the historical and cultural aspects of both Japan and China, coupled with a strong emphasis on the rule of law, can put an end to this and other territorial disputes. The Senkaku/Diaoyu disputes represent a good opportunity for both Japan and China to focus on their commonalities that could serve as the starting point for a comprehensive treaty establishing a regional international organization and an international adjudication system merging contemporary legal developments with cultural and historical values deeply important to both countries. Such values include harmony, pacifism, benevolence and kindness, which can and should walk hand in hand with a system of law. This approach could help both countries develop and show that East Asia is again the centre stage of the world, but this time organized within a cooperative system that embraces its core values and cultural aspects.

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A fully referenced version of this article is available on request from [email protected]

Image | AK Rockefeller