An important virtue of a technocratic approach is that it is not biased towards legal conventions or frameworks that not all parties view as legitimate. In the border dispute between India and China, as well as over the South China Sea, boundary demarcations have their origins in late nineteenth- and early twentieth-century colonial-era conventions. These conflicts, then, are effectively pre-legal with respect to contemporary international law. Until sovereignty is settled, how is the law of nations to apply? Western diplomats often speak of the need for a rules-based international order, but in many of these conflict formations, the rules have yet to be agreed in the first place.
Technocratic deliberations over outstanding boundary disputes must involve credible senior representatives from disputant parties authorized to make binding decisions. Their autonomy—even their anonymity—is essential to ensuring the consensus nature of outcomes. Neutral international mediators can also play important roles in building consensus and certifying that agreements are considered formal on all parties. The confidentiality of the proceedings is equally important. Deliberations should be held away from public scrutiny, even though publics may be aware they are occurring. This is essential so that representatives can pursue bold compromises rather than defaulting to political expediency. As the political psychologist Philip Tetlock has argued, too much transparency into decisionmaking inhibits participants from making apolitical judgments in the long-term public interest. Extended to the realm of diplomacy, this means negotiators must be liberated from the fear of backlash.
This is not to say there is no role for politicians or the public. To the contrary, as parties come close to settlement, parliamentarians and other national political figures can be briefed on the contours of the agreement to prepare to sell it at home. The same applies to leaders themselves, who will be able to claim certain victories and point to others’ concessions.
Independently managed negotiations provide a novel precedent worthy of replication. In 2017, after a conciliation process under the auspices of the UN Convention of the Law of the Sea (UNCLOS), Australia and East Timor accepted a package of proposals offered by a five-person commission that provided for maritime boundary delineation and revenue sharing from a large gas field straddling their respective territories. Former Singaporean foreign minister Tommy Koh, one of the architects of UNCLOS, points out that such processes have the advantage of not being adversarial legal proceedings such as at the International Court of Justice. Rather, they are inclusive of two representatives from each side plus an agreed-upon independent commissioner. Rather than endless legal proceedings with appeals, the Australia-East Timor conciliation set a deadline of one year to reach a settlement—and did so.
THERE IS no ideal way to resolve international conflicts, especially given their diverse historical origins, power asymmetries, and diplomatic posturing. But in conflict resolution, the perfect should never be the enemy of the good. And good approaches involve sharing sovereignty, sequencing solutions, and settling boundaries in order to achieve greater collective security. Without prescribing a specific end-state, these tools can deliver a roadmap to peace for Asia. Leaders know that the same back-of-a-napkin approach that caused so many of today’s territorial tensions can also just as easily be used to resolve them. This is a good time to do just that.
When China and Japan agreed to normalize relations in 1945, it was stipulated that the disputed Senkaku/Diaoyu Islands (a string of uninhabited rocks equidistant from Japan, China, and Taiwan) would not be militarized and the dispute would be put off for future generations. That future is here—and the past has come with it. China views the Diaoyu Islands as the only ones not returned by Japan after World War II, while Japan holds on to the Senkakus claiming they were terra nullius taken by Meiji Japan after the 1895 Sino-Japanese war. The Japanese government’s purchase of three of the islands from a private owner in 2012 sparked a significant outcry in Beijing. Xi Jinping recently warmed to Japan in light of the U.S.-China trade war, and may well continue to offer large sums of commercial deals with Chinese companies during his upcoming state visit to Japan in the fall. But it should be clear from Japan’s exclusion of Huawei from its planned 5g network and development of anti-carrier missiles that greater trade does not imply Japanese tolerance of China’s deployment of coast guard vessels within the islands’ twelve-mile exclusive zone. Additionally, since the islands are covered by the U.S.-Japan Treaty of Mutual Cooperation, China’s inclusion of the islands in its East China Sea Air Defense Identification Zone has not been obeyed by foreign aircraft.
Given the geopolitical stalemate, China and Japan should agree to “shared sovereignty” involving coordination of patrols, fishing, and oil exploration, with the islands remaining forever uninhabited. While China would be giving up on its quest to have Japan fully return the islands, it would buttress its image in the region while diminishing American claims that its military presence is essential to maintain stability—both core Chinese interests far more important than these islands in themselves. Indeed, such a settlement would strengthen the hand of Japan’s vocal constituency that has called for America’s base at Okinawa to be closed. An eventual withdrawal of U.S. forces from Japan, however, would also elevate calls for Japan to cross the nuclear threshold to maintain an independent deterrent capability. Though one cannot directly link settling the Senkaku/Diaoyu dispute to Japan building a nuclear arsenal, such a settlement would certainly represent one less conflict scenario between the two powers in the first place.
Kuril Islands/Northern Territories
A similar dispute clouds the relationship between Japan and Russia over the Kuril Islands lying between Japan’s Hokkaido and Russia’s Sakhalin. Though the 1875 Treaty of St. Petersburg clearly gave sovereignty over Sakhalin to Russia and all the Kuril Islands to Japan, the 1904-5 Russo-Japanese War (in which Japan triumphed and annexed parts of Russia) and Japan’s capitulation in World War II led to stipulations in agreements reached at Yalta, Potsdam, and San Francisco that granted the Kurils (which Japan calls the “Northern Territories”) to Russia. At the moment, there is little risk of armed hostility between Russia and Japan; only one Japanese fisherman has been killed by the Russian coast guard in the past sixty years. In 2018, Russia also refrained from using the Kurils during its large-scale military exercises with China. But settlement would very much serve both parties’ long-term interests.
Japan has made economic overtures to Russia, effectively seeking to buy the islands back, but Russia demands that Japan recognize Russian sovereignty before any peace treaty or modification of status can take place. Given that three times more Russians (approximately 18,000) inhabit the dilapidated towns of the Kurils than Japanese (whose numbers are dwindling as they resettle on Hokkaido), a shift in sovereignty is unlikely. At the same time, Russia courts Japanese investment in Sakhalin and Russia’s Far East to develop its energy, mining, and food sectors, and has suggested visa-free travel between Sakhalin and Hokkaido. From Russia’s point of view, a post-Abe government would lose interest in the Kuril dispute, ceding full sovereignty to Russia through a peace treaty in exchange for deeper strategic ties between the two powers, both fearful of China’s military prowess and ambitions. Russia, therefore, could concede more ground to Japan in terms of fishing rights and investment on the islands in the short-term while attaining enhanced military cooperation with Japan in the longer term.
Taiwan represents the Northeast Asian dispute with the most significant conflict potential. Since the Kuomintang’s “great retreat” at the end of the Chinese Civil War in 1949, Taiwan has been self-governing yet ensnared in internecine hostility with mainland China. After the 1954 U.S.-Taiwan mutual defense treaty (a response to Communist China’s involvement in the Korean War), the U.S. 7th fleet found itself defending Taiwan in armed confrontations with China such as the Taiwan Straits Crisis of the late 1950s. Pursuant to President Richard Nixon’s landmark visit to China in 1972, the United States normalized relations with China and by 1979 had officially proclaimed the “One China” policy and transferred its diplomatic recognition from Taipei to Beijing.
But America has also remained Taiwan’s protector, with several hundred millions of dollars of arms sales annually. Though the Trump administration has increased deliveries of early warning radars and F-16 upgrades, there has been discussion in Washington about the extent to which the United States should backstop Taiwan in its stalemate with China. As a result, successive Taiwanese governments have shown greater restraint in calling for independence. However, China’s army and navy drills rehearsing an occupation of Taiwan and air force incursions into Taiwanese airspace remind that the United States remains the only external power capable and willing to defend Taiwan’s autonomy.
Taipei and Beijing must ultimately decide how they will coexist politically. Taiwan’s success in handling the coronavirus crisis became a reputational irritant for China, as well as its offer of refuge to Hong Kong residents fleeing the ongoing crackdown in the wake of the new National Security Law. Yet Hong Kong’s fate makes Taiwan’s resolve firmer than ever—a fact that Beijing should be constantly reminded of as it simulates an invasion. Hong Kong can no longer live up to the “one country, two systems” moniker, but Taiwan can. This remains Beijing’s best option as well.