Conflict Management and Dispute Settlement in East Asia

Ramses Amer, Keyuan Zou

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317162155
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Through a multi-disciplinary approach, this volume studies the management and settlement of conflict and disputes in East Asia. Conflict and disputes exist everywhere in human society. The management and settlement of them has become an imperative. This volume is a significant contribution to a broader understanding of the complexities involved in managing and settling disputes and conflicts at regional, inter-state and intra-state levels in the East Asian region. Drawing on expertise in Peace and Conflict, International Relations, and International Law the volume presents to the reader a general picture of how conflict can be managed at the international and regional levels through various mechanisms, in particular, through prominent regional organizations such as ASEAN. It then moves on to case studies at the regional level including inter-state and intra-state conflicts and disputes. The last part of the volume highlights how states resolve their maritime disputes. This has drawn much attention from the international community due to various factors such as the increasing demand for natural resources from the oceans. These disputes disrupt the smooth development of international relations as well as trigger tensions and confrontation between states.

Part I
Introduction

Chapter 1
Conflict Management and Dispute Settlement in East Asia: A Multi-Disciplinary Approach

Ramses Amer and Zou Keyuan

Introduction

Conflict and disputes exist everywhere in human society, either at the international, regional, or national levels. People can hear from daily news about such occurrences. Management of conflicts and settlement of disputes therefore become an imperative in international relations. Humankind learnt a serious lesson from the scourge of the World War II and realized the importance of peace for the human society. Peace and security has become the central theme in international relations since the establishment of the United Nations in October 1945. The Charter of the United Nations carries a paramount purpose of the Organization to ‘maintain international peace and security’, and to that end:

to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace (United Nations Charter 1945: art 1).

The maintenance of the peace requires effective ways and means of conflict management and dispute settlement.

The rationale behind this edited book is to address the broad fields of conflict management and dispute settlement in East Asia from a multi-disciplinary perspective. In the context of the book, several academic disciplines are brought together – Peace and Conflict, International Relations, and International Law. All contributors have their academic background in one or more of these three disciplines. The two co-editors come from different academic backgrounds: Ramses Amer comes from Peace and Conflict Research and International Relations while Zou Keyuan from International Law. Likewise, among all the contributors, they come from either the former discipline or the latter. Together respective disciplinary expertises as well as geographical specialization have been organically and successfully inter-connected into this joint collaborative book project.

A Multi-disciplinary Approach

Conflict management and disputes settlement are core dimensions of the academic field of Peace and Conflict research. Being a relatively young academic discipline, Peace and Conflict draws on other more established disciplines including International Relations and International Law in the context of global, regional and other forms of inter-state disputes and from political science, sociology and anthropology in the context of intra-state disputes. Peace and Conflict research seeks to explain and understand the factors causing conflicts. It also seeks to study and develop various approaches to resolve and manage potential and existing conflicts and disputes. The approaches range from actions of international and regional organizations through frameworks, principles and mechanisms to various forms of actions including peacekeeping. Peace and Conflict research is also concerned with factors that hamper conflict management and disputes settlement, e.g. so called spoilers and their impact on peace processes and the implementation of peace agreements.1 The role of third parties is of particular relevance in Peace and Conflict research and this can be seen in the study of both negotiation and mediation, e.g. in the research on ‘ripeness’2 and ‘readiness’,3 as well as in the study of various forms of interventionism.4

As far as dispute settlement is concerned from a legal perspective in international law, the Charter of the United Nations obliges the members of the United Nations to settle their disputes through peaceful means in accordance with applicable international law. Such peaceful means include negotiation and consultation, non-binding third party facilitation such as good offices and conciliation, intervention of international organizations, and legally-binding mechanism such as arbitration and international adjudication. While States are obliged to settle their disputes through peaceful means, they are free to choose whichever such means is most suitable to them. The settlement of the maritime boundary dispute in the Gulf of Tonkin between China and Vietnam, which is to be addressed in this book, is through negotiation and consultation.

However, the most effective way to settle disputes between nation states is to submit their disputes to the International Court of Justice (ICJ), which is ‘the principal judicial organ of the United Nations’ (United Nations Charter 1945: art 92). According to the Statute of ICJ ‘the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’ (ICJ Statute 1945: art 36). Any member of the United Nations can declare any time that it recognizes the Court’s compulsory jurisdiction in all legal disputes concerning:

the interpretation of a treaty; any question of international law; the existence of any fact which, if established, would constitute a breach of an international obligation; the nature or extent of the reparation to be made for the breach of an international obligation (ICJ Statute 1945: art 36).

In the event of a dispute as to whether the Court has jurisdiction, the matter should be settled by the decision of the Court (ICJ Statute 1945: art 36). The acceptance of the Court’s compulsory jurisdiction can facilitate the adjudication and more effective function of the ICJ. However, the comparable number of States which have accepted such jurisdiction has declined significantly and in East Asia only three countries have done so.5 In terms of maritime disputes, in addition to the ICJ, the International Tribunal for the Law of the Sea (ITLOS) has jurisdiction over any dispute that is submitted to it concerning the interpretation or application of the United Nations Convention on the Law of the Sea (LOS Convention) and the Agreement relating to the Implementation of Part XI of the Convention. In addition, it can adjudicate cases submitted by parties to other international treaties if such treaties allow it to do so (ITLOS Statute 1982: arts 21–22). While a few East Asian countries have resorted to the above two international judicial organs for dispute settlement, it is expected that more and more states in that region can follow so as to improve the overall landscape of conflict management and dispute settlement in East Asia.

Finally, it is to be noted that the multi-disciplinary approach reflected in this book is based on the contributors’ established expertise in one or more of the above-mentioned disciplines with contributing chapters dealing with various dimensions of the broader problematic and most challenging subject-matter of conflict management and dispute settlement. The multi-disciplinary approach will not be applied in each individual chapter but in the volume as a whole. This will allow each contributor to provide expertise in his/her respective disciplinary field of specialization. Furthermore, since the contributing scholars come from different academic disciplines the way they approach and address the topic of their contributions will differ. The value of the book is further added by the fact that it also brings together both senior and emerging scholars in a joint book project.

Geographical Focus and Case Studies

The geographical focus of the book is apparently East Asia, which includes Northeast Asia and Southeast Asia. The contributed chapters of the book will be dealing with regional dimensions of East Asia as a whole as well as with regional actors by focusing on the Association of Southeast Asian Nations (ASEAN), interstate relations and issues with a focus on both territorial issues and management of bilateral relations with the developments relating to the Gulf of Tonkin as a special feature. The book also includes contributions dealing with conflict management and dispute settlement of domestic and intra-state conflicts. Given that there are both a variety of inter-state and intra-state disputes in the East Asia region, it is not possible to define only one nature and, therefore, this edited book addresses a number of relevant disputes and conflicts falling into both categories. It covers a much broader spectrum of disputes and conflicts, even including maritime ones. Having said that, a special feature of the book is that some of the chapters deal with maritime disputes and the developments relating to the Gulf of Tonkin, which is motivated by the progress made in terms of conflict management and dispute settlement in that area. This is rarely addressed in the existing literature dealing with conflict management and dispute settlement and it can thus be regarded as one of the most original features of the book.

The multi-disciplinary approach makes this book distinctive of the existing literature on East Asia not only since it is dedicated to the conflict management and dispute settlement aspects which are not at the centre of attention in the vast majority of the existing literature, as most of the books on East Asia do not address the issues of conflict management and dispute settlement and they often look at regional collaboration, at major power relations and/or impact on the region, at either inter-state or intra-state conditions but not both. This book also addresses all these aspects through different perspectives. Furthermore, the existing literature tends to be based on one academic discipline, e.g. economic integration, or international relations, while this book has a multi-disciplinary approach. Thus, this book contributes to further deepening the understanding of the case studies and the situation in the region as a whole and it complements the existing literature in this important research field. It also adds new impetus and perspectives to the study of East Asia with a focus on challenges and progress made in conflict management and dispute settlement in the area as well as different aspects such as general aspects, regional aspects (e.g. ASEAN), bilateral aspects and internal disputes and dimensions. The two chapters (Singh and Amer) dealing with ASEAN will look at the ASEAN approach to conflict management and ASEAN and internal conflicts, respectively. Given the preference in the region for bilateral approaches several chapters deal with bilateral dispute situations. In order to avoid overlapping with recent literature dealing with peacekeeping in Asia6 the book does not include any chapter dealing specifically with peacekeeping activities.

Structure of the Book

Based upon the above conceptual framework, the book is coherently and organically knitted and it is structured in the following way. It is divided into four parts with ten chapters. The first part contains the introductory chapter of the book. In Part II – Framework of Conflict Management and Dispute Settlement – through the chapters by Hari Singh and Ramses Amer, respectively, – a general picture is outlined of how conflict can be managed at the international and regional levels through various mechanisms, in particular, through the prominent regional organization in East Asia, i.e., the ASEAN. In Part III – Conflict Management at the Regional Level – the focus is on specific cases at the regional level including inter-state and intra-state conflicts and disputes in selected East Asian countries. The chapters by Johan Saravanamuttu and Malin Åkebo, respectively, are primarily focused on the Southeast Asian region while the chapters by Gabriel Jonsson and Jenny Clegg, respectively, are devoted to the various aspects of situation in and around the Korean Peninsula. In Part IV – Management of Maritime Conflicts and Disputes – the three chapters deal with how states resolve their maritime disputes, which have drawn much attention from the international community due to various factors such as the increasing demand of human beings for natural resources from the ocean, and these disputes disrupt the smooth development of international relations as well as trigger tensions and confrontation among/between states. The chapter by Zou Keyuan deals with China, the chapter by Nguyen Hong Thao deals with Vietnam and finally the chapter by Kang Baying and Li Jianwei deals with the role of the Chinese province of Hainan in the South China Sea.

Main Findings

The chapters included in this book deal with in general conflict management and dispute settlement in East Asia with various dimensions as well as different perspectives. In Chapter 2, ‘Conflict Management in East Asia’, Hari Singh argues that the dynamics of an international system are a reflection of the interactive processes among its political units. The interactive processes are themselves complex and multilevel, issue-driven along the lines of security, trade, prestige and development among others, generally involve nation states notwithstanding the growing salience of non-state actors as competing political units, and are, in the final analysis, a competition over values. The preceding analysis posits an important proposition: conflict is integral to international politics; it cannot be completely eliminated but its intensity can be moderated. Also conflict is a value-laden concept and an agent of change and hence vital to human and systemic growth and revitalization. Based on these theoretical assumptions, his chapter examines conflict management in the East Asia region and analyses key conflict areas among states that have potential for inter- and intra-state violence in two phases, i.e., the Cold War and Post-Cold War phases. Through his chapter, the author answers questions in regard to conflict management such as what the milieu contexts of these conflicts are, what milieu contexts allow for conflict management, what instruments are employed by adversaries and third parties in conflict management.

In Chapter 3, ‘The Conflict Management Framework of the Association of Southeast Asian Nations (ASEAN)’, Ramses Amer first outlines the ASEAN framework the context in which it has developed and then identifies the achievements and challenges that ASEAN has faced and is still facing in the field of conflict management. The chapter examines three main dimensions: first, the core elements of the framework, second, the role played by the Association in terms of conflict management, and, third, the possible impact of the ASEAN framework in managing disputes among its member-states. He argues that the regional mechanisms for conflict management developed through collaboration within ASEAN would become more relevant if the member states of the Association would more actively seek to utilize them when managing and settling disputes. He also observes that ASEAN puts considerable efforts into promoting the peaceful settlement of disputes among its member states. The Association’s approach has been to adopt principles and to create mechanisms that are available to the member states when dealing with disputes. However, thus far, ASEAN has not assumed the role of directly intervening in such disputes. He concludes that ASEAN has contributed to making the relations between its own members more peaceful since 1967 and it plays an important role in promoting inter-state peace among the member states of the Association.

In Chapter 4, ‘Conflict Management in the Southern Philippines and its Implications for Regionalism’, it is acknowledged that the Southern Philippine conflict is one of the most complicated cases of liberation movements in the world today. After examining several important events and diplomatic developments, Johan Saravanamuttu argues that the complexity of the Southern Philippine conflict, its politics of resistance, self-determination and separatism has made it at once unique as a case study and also generic to the sort of conflict of identity politics that we see across the world. A further element which makes the conflict contemporary is its character of political Islam. He concludes that the continued presence and participation of regional states and of non-state actors as well as the engagement of civil society in the conflict resolution and conflict transformation processes are crucial elements in the peace process in Mindanao.

Unlike the previous chapter, Chapter 5, ‘The Role of External Actors in Managing Peace Processes in Asia: An Overview of Attempts in Aceh, Mindanao and Sri Lanka’, deals with several regions in Asia. This chapter addresses the management of peace processes in intrastate conflicts in the Asian region, by focusing specifically on exploring the involvement of external actors in managing peace attempts in Aceh, Mindanao and Sri Lanka. It aims to map out the main external actors and their involvement in the peace processes. The chapter takes on a history oriented approach by presenting an overview of major peace attempts in each of the three conflicts. It begins with a brief background to the Asian context, focusing on conflicts and conflict management in intrastate conflicts in this region and then focuses upon the above three cases, starting with a background description to the conflicts, which is followed by an overview of important peace attempts and the main external actors involved in these attempts. Malin Åkebo finally argues that although these conflicts have to a large extent been internally driven nearly every peace process has experienced external third-party involvement in managing peace attempts. However, these involvements required the consent from the primary conflicting parties, who accordingly have to a large extent determined the features of the efforts. In this respect, the asymmetrical character that the conflicts have to be emphasized, with the main conflicting parties being on the one hand internationally recognized state governments and on the other hand non-state groups.

In the next two chapters, the focus shifts to the Korean Peninsula. While the first chapter is an overview of the Pueblo Incident from a historical perspective, the second chapter deals with a contemporary issue of denuclearization of North Korea. However, the two chapters do have their commonalities: they both touch upon the issues directly related to North Korea and involve international politics of big powers such as China and the United States.

In Chapter 6, ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• Acknowledgements
• List of Editors and Contributors
• PART I: INTRODUCTION
• PART II: FRAMEWORK OF CONFLICT MANAGEMENT AND DISPUTE SETTLEMENT
• PART III: CONFLICT MANAGEMENT AT THE REGIONAL LEVEL
• PART IV: MANAGEMENT OF MARITIME CONFLICT AND DISPUTES
• Index