Japan's ASEAN charm offensive

Guest post by Prashanth Parameswaran

Just weeks after Japan's election, new prime minister Shinzo Abe and his finance and foreign ministers have already traveled to seven of the ten ASEAN countries. Why is Tokyo paying so much attention to Southeast Asia? Media reports have highlighted Japan's deteriorating relations with China over territorial disputes as the main reason for its ASEAN embrace. 

In fact, the rationale is much broader. ASEAN and Japan are celebrating the 40th anniversary of their enduring relationship this year. The rich symbolism that often accompanies ASEAN anniversaries with its dialogue partners, along with converging interests, have led the two to cement ties. Tokyo needs markets to get out of its fourth recession since 2000, while ASEAN wants partners to help it build a more economically integrated region. The two are also facing common security challenges, from natural disasters to cyberwarfare to the rise of China.

During his trip to Indonesia, Abe unveiled the five principles that would govern Japan's approach to ASEAN. They included promoting democracy and human rights, enhancing economic ties, ensuring freedom of navigation and maritime security, strengthening youth exchanges and protecting Asia's rich culture.

His administration has already made progress on some of these principles during this round of visits. On maritime security, Japanese foreign minister Fumio Kishida discussed giving the Philippine coast guard 10 patrol vessels to better secure its territorial claims against Beijing. Japanese officials have also indicated that they will continue assisting Myanmar's development and possibly bankroll cross-border infrastructure projects like the Dawei port project between Nyapidaw and Thailand.

Yet Tokyo faces several challenges as it courts ASEAN. To some, Abe's rhetoric on democracy and human rights rings hollow: he was silent on those issues in Vietnam despite a recent government crackdown there. And while Japan and Southeast Asian states both have territorial disputes with China, any sense that Tokyo is enlisting ASEAN in a broad effort to contain Beijing could produce a squabble between the organization's hawks and doves.

Japan's domestic priorities may also make advancing the relationship difficult. Japan's seventh prime minister in just six years must secure his political legitimacy while reviving the country's moribund economy.  Over the next few months, his administration will likely be consumed by its main short-term goal of securing victory in this summer's Upper House elections.

But if Abe is as serious about Southeast Asia as the first weeks of his premiership suggest, his administration may be able to sustain this engagement. In 1977, former Japanese prime minister Takeo Fukuda famously spoke of a "heart-to-heart" understanding in ASEAN-Japan relations. For the moment at least, the passion is back.

Prashanth Parameswaran is a PhD candidate at the Fletcher School of Law and Diplomacy at Tufts University and a freelance journalist. He blogs about Asian affairs at The Asianist and you can follow him on Twitter @TheAsianist.

The Multilateralist

Palestine, the ICC, and the illusion of state control

Palestine's top diplomat is warning Israel that continuing with its settlement plans will lead to action at the International Criminal Court:

Palestinians have said that continued Israeli settlement in occupied areas near Jerusalem will leave it with no choice but to take Tel Aviv to the International Criminal Court (ICC) in the Hague.

Riad Malki, the Palestinian foreign minister, said on Wednesday his government's decision will largely depend on what the Israelis do with the so-called "E1" area outside the Arab suburbs of East Jerusalem.

Malki said allowing Jewish settlers into the so-called E1 zone would be "trespassing the red lines".

The Palestinians are "absolutely not going to tolerate any construction in that particular area", Malki told reporters after addressing a UN Security Council meeting on the Middle East conflict.

All the stories I've seen on Malki's comments today make a basic error about the way the ICC operates: they assume that Palestine will be able to bring Israeli activity to the attention of the court only once Palestine formally joins the court. Al Jazeera's story includes this passage:

The Palestinians are yet to join the ICC, which prosecutes charges of genocide, war crimes and other major human rights violations. They must first apply to join the court, and once a member they could refer Israel for investigation.

In fact, the Rome Statute allows non-member states to give the court jurisdiction over their territory even absent a decision to become a court member. Palestine has already attempted to do so: in the wake of the 2008-2009 Gaza War, the justice minister of the Palestinian Authority submitted a declaration purporting to give the court jurisdiction over relevant crimes committed on Palestinian soil for "an indeterminate period." 

The incorrect assumption that Palestine must somehow set the ICC in motion reflects a larger confusion about the court. Casual observers, including many journalists, tend to think of the ICC process as state-driven, akin to the International Court of Justice or the World Trade Organization. In those institutions, state action is essential to setting in motion the legal machinery.

For the most part, the ICC doesn't work that way. It is a prosecutor-driven institution. The ICC's founding document gives the prosecutor the power to initiate investigations on his or her own, assuming the court has jurisdiction. And the prosecutor has the sole discretion to decide which alleged crimes to pursue and which to ignore. The Palestinians can tell the court about any and all Israeli acts they believe are illegal--including settlements--but the prosecutor alone decides whether to pursue them and whether to bring any charges.

Threatening to take Israel to the ICC may be good theater, but it's not much more than that. Palestine has already attempted to give the court jurisdiction. It is now up to the court to decide whether that declaration has force. In April of last year--several months before the UN took up the question of Palestine's status--the prosecutor decided that he had no competence to decide whether Palestine was a state capable of granting the court jurisdiction.  But in making that decision, the prosecutor wrote this:

The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue [of statehood]. 

As the prosecutor framed the issue, last year's General Assembly vote recognizing Palestine as a non-member state should have resolved the statehood question. The relevant issue now is not what Palestine will do, but what the court will do.