JIIA Director General Koichi Ai: “The Framework of Conduct, One Year After Arbitration”

Remarks of Mr. Koichi Ai
Director of Research Coordination, Japan Institute for International Affairs

The Framework of Conduct, One Year After Arbitration

Thank you. I am very much honored and delighted to be invited to this important occasion. Professor Landing (?) and I met in Tokyo in March when he made an excellent intellectual contribution to the […] mining organized in Tokyo. I am very pleased that ADR Institute and JIAA are playing an important role in sharing their thoughts between the two countries. I like very much for that coalition to continue. The previous speaker commented on the daunting task of following on the presentations by some of the most distinguished legal minds and strategic thinkers with their information-packed and thought-provoking presentations. I almost gave up on following that, but before I begin, let me offer my most profound respect as an observer of International Relations to the leadership and wisdom demonstrated by the people of the Philippines in bringing this case to an Arbitration Tribunal. I cannot emphasize enough the importance of the case and its award in the development of the rule of law at sea. I congratulate the people of the Philippines for this historic venture.

In my attempt to provide a Japanese perspective to the discussion, let me begin by how the South China Sea arbitration and more generally the issue of the rule of law in the South China Sea have been treated in the context of Japan’s foreign policy. Between September of last year and May this year, there were at least 8 bilateral summit meetings between Prime Minister Abe and other foreign leaders, during which the issue of the rule of law in the South China Sea was discussed to some extent. After that, at least 9 bilateral ministerial meetings between foreign ministers and defense ministers. In the multilateral context, Japan as a chair of G7 Ise-Shima summit in 2016 had led the discussions on the rule of law at sea prior to the arbitration award on July last year. Post award, G7 foreign minister statement on recent development in Asia which was issued in September 2016 in New York expressed, and I quote, “strong opposition to unilateral actions that raised tensions in the South China Sea” and referred to the arbitration award as, “a useful basis for further efforts to peacefully resolve disputes in the South China Sea.” This interest in maintaining a rules-based maritime order and in peaceful dispute settlement continued in to the Italian chairmanship this year for the G7 and was newly expressed in both G7 Foreign Ministers Joint Communique […] and G7 Taormina Leaders’ Communique. Both leaders urged both parties to pursue demilitarization of disputed features. A more practical front, Japan has re-doubled its efforts to assist in the Southeast Asia’s capacity building. Prior to the arbitration award, Japan had transferred 10 patrol ships to the Philippines, in addition to 6 in Viet Nam, and 3 to Indonesia. After the arbitration, Japan and the Philippines agreed on the transfer of 2 additional patrol ships and 5 TC-90 training aircrafts. Japan has transferred 2 patrol ships to Malaysia and will provide 6 patrol ships to Viet Nam coast guard.

The Japan Institute for International Affairs, my institute, has not been […] on this matter either. We have named this issue a subject at a number of seminars and round tables. Earlier this year, we invited a renowned international lawyer by the name of Mr. Paul Reichler. He argued on the case at the arbitration on behalf of the Philippines to Japan to participate in a series of public and closed sessions to discuss his experience in the case. This was very meaningful, not only meaningful in the Japanese public about this issue but also in giving our professional and academic audience a rare opportunity to glimpse the reality of international litigation.

Why is this issue so important to Japan apart from the strong friendship that characterizes our bilateral relations? Japan, much like the Philippines, is a maritime nation, and has existential interest in matters of maritime security. Japan has always emphasized the importance of peaceful resolution on maritime disputes, based firmly on international law. Free and open maritime order remains a key to peace, stability, and prosperity of the region, including Japan. Given both the strategic and economic significance of South China Sea, any dispute arising from this body of water is a great concern to the international community as a whole. We also believe in light of the how arbitration award has been received and treated that it is important for us all, all the more to emphasize the consequence of not complying with the final and legally binding award. This is perhaps the less discussed among the number of reasons why we should continue to press this issue.

The rule of law is a human creation. This means law must be consistently held up in practice in order that it remain effective. Failure to do so will result in the erosion of this principle. Allowing the award to be ignored directly contributes to the undoing of the rule-based order. The test of being a responsible actor in the international community is whether you abide by the decision duly rendered even when it is not to your immediate interest. Finally (?) put, can you be a good loser? That is the question. Japan lost the case before the International Court of Justice in the matter of whaling and immediately accepted the terms of the decision and altered its policy accordingly. Because preserving and defending the credibility of the system is in the interest of all. If the present rule-based liberal international order which has been the basis of peace, stability and prosperity for many countries these past 7 decades needs to be replaced, what will the new world order look like? Is it good to be a more orbital, hierarchical order where the principle of “might is right” fill the void after the rule of law?

So let us be clear, the present interaction in the East Asia is not simply a power struggle between an existing superpower and an ascendant power in the manifestation of a challenge to the existing international system, its principles, and the way of life it holds. Territorial disputes invariably entail matters of principle and sovereignty, but what is at stake today is not simply a question of where a line can be drawn even though it is important. The real question now is which of the two visions of international relations do you choose. I think the choice is obvious. This is not to say I do not welcome China’s rise, but quite the contrary. I think we should embrace it.

Recently, China has come up with new ideas on infrastructure development. Maybe it is premature for us to pass judgment on that. We should perhaps listen carefully to what they have to offer. Keeping in mind what Trojans said about Greeks bearing gifts (?). The difficulty is that this new economic giant seems to be the proponent of the less desirable vision of international order. The economic incentives and the new rule of order are part and parcel of a single package. Perhaps, but maybe perhaps not. No need for us to burn the bridge ourselves and make a problem more difficult than what it really is. We should continue to engage China as a matter of business in the economic and commercial sphere, but we should resort to challenge any move they make against the rule-based international order. We must make any attempt on their part costly enough for them to have second thoughts. This cannot be achieved by the initiative of one country. It has to be a collective effort of like-minded countries both in and outside of the region.

It will also be characterized by an extended […] of tense and precarious relations in the region. It will be uncomfortable. Both the people and the political leadership must be able to endure that stress if we are to peacefully manage this changing dynamism. That is where think-tanks like ADRi and JIAA have critical roles to play. I envision at least two such roles: One, advise the government policy planners as to policy options in responding to China’s actions without unduly escalating the situation, but still effective in discouraging further erosion of rule-based liberal order. Two, better informing the public as to the nature of conflicts in the region and what is at stake so that governments might enjoy critical democratic support for their decisions.

Think tankers do not think in terms of simple black or white. We think in terms of gray. We explore new approaches to all problems, expanding the practical reach for what is possible so that policy decision makers can play the art of politics as defined by Bismarck as the “art of the possible.”

JIAA is running two separate projects this year: one focusing on maritime security and rule of law, another focusing on sovereignty and territorial matters. While they have different focuses, these programs do address issues that have direct relevance to the present situation in the South China Sea. We remain very committed to pursuing this issue. Therefore, I believe there are continuing opportunities for ADRi and JIAA to work together on this important agenda, and I look very much forward to working more with Professor Manhit and his team.

Thank you very much.

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