Arbitration a solution to conflict

By Fuldien Li 李復甸

TAIPEI TIMES
Thursday, Jun 26, 2008, Page 8

With Taiwan’s unclear international status and increasingly fewer countries recognizing her, the largest challenge for the government is protecting the rights and interests of Taiwanese abroad. Disputes arising from Taiwanese investments in China or fishing in neighboring waters are common. The recent sinking of a Taiwanese fishing boat near the Diaoyutai (釣魚台) islands by the Japanese coast guard highlights the importance of conflict resolution.

It is obvious that the sinking of the Taiwanese boat was not a normal judicial case. Japan chose to handle the issue from the standpoint of its criminal law. Japanese authorities said on June 16 that the Japanese captain and the Taiwanese captain had both breached Article 129 of Japan’s Penal Code — Endangering Traffic through Negligence — and transferred the case to a district prosecutor’s office for investigation.

This was not only far from the truth, but also a clear attempt on Japan’s part to dodge international pressure and responsibility. Even if the incident were turned into a civil lawsuit, issues such as state immunity would have complicated the situation.

Because Taiwan is not a state party to the International Court of Justice, filing a lawsuit with The Hague is virtually impossible. However, Japan’s deliberate use of a heavy ship equipped with weapons to hit and sink a much smaller boat was a violation of the regulations of the Rome Statute of the International Criminal Court.

In addition, purposely ordering an attack on civilians and their possessions, in this case a boat, constituted serious armed conflict on an international scale. Because Japan is a signatory to the Rome Statute, the captain of the sunken vessel could have demanded an investigation into the actions of the Japan Coast Guard, although this was not feasible.

Premier Liu Chao-shiuan (劉兆玄) has said that going to war is a last option and this would have been in accordance with international law. However, Taiwan does not have much of a choice given its international status. Therefore, arbitration is a much more feasible solution to this situation.

Arbitration is the most flexible of any method, as it does not require a nation to be recognized by other nations. Disputes can be solved with arbitration as long as both parties agree to a compromis d’arbitrage.

Well-known arbitration cases include the Newfoundland Fisheries Case of 1910, the Tinoco Arbitration of 1923, the B.P. Exploration Company vs the Libyan Arab Republic of 1973, the Franco-British Arbitration Case of 1977 and the Australia & New Zealand V Japan: Southern Bluefin Tuna case of 2000. The Cayuga Indian Arbitration case between the US and the UK involved many years of arbitrations before the dispute was settled.

Even companies can become a party in arbitration cases and arbitration that is not carried out on a national level can take place in permanent organizations such as The Hague’s Permanent Court of Arbitration and the International Center for Settlement of Investment Disputes. Parties can also enter into ad hoc arbitration to solve individual disputes.

When dealing with the Diaoyutai issue, we cannot ignore the issue of sovereignty and talk only about fishing. In 1998, the Legislative Yuan passed the Act on the Territorial Sea and the Contiguous Zone of the Republic of China (領海及鄰接區法), and in 1992, China passed the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone (領海及毗連區法). Neither of these laws has been used to draw up clear marine borders.

The implications of the Diaoyutai issue are serious and we do not need to escalate the situation any further. However, we should avoid backing down on the issue. The most feasible way to solve this kind of dispute would be for Taiwan, China and Japan to enter into trilateral arbitration or carry out ad hoc arbitration.



Fuldien Li is a professor in the School of Law at Chinese Culture University.

TRANSLATED BY DREW CAMERON