Dear Taiwan: The PCA Ruling Does Not Threaten Your Control Over Taiping Island

by Julian Ku

Itu Aba Island, also known as Taiping Island, is one of many disputed islands in the South China Sea. The island is administered and occupied by the Republic of China, but other countries, including Vietnam, the Philippines and the People’s Republic of China, also claim sovereignty. The site for the naval frigate terminal will likely be the area of the existing harbor, which is notably the only section with shipping access to the island through the coral reef.Much to many observers’ surprise, the first country to take aggressive action in response to the UN Convention for the Law of the Sea tribunal’s award this week was Taiwan.  New Taiwanese President Tsai Ing-wen’s government issued a blistering statement stating that the arbitral award was unacceptable and that it has no “legally binding force on the ROC.” It noted that the tribunal ruled that Taiping Island and other Spratly land features were rocks rather than islands.   “This decision severely jeopardizes the legal status of the South China Sea Islands, over which the ROC exercises sovereignty, and their relevant maritime rights.”

More significantly, President Tsai moved up the departure date of an ROC naval ship that was scheduled to conduct a patrol in that region.  In a speech made before the departure of the ship, she announced that the frigate was being dispatched to display Taiwan’s resolve in defending its national interests.  She further warned that the arbitral award had “gravely harmed” Taiwan’s rights in the South China Sea.

Tsai’s remarks were disappointing for those looking for the new president to moderate Taiwan’s expansive South China Sea claims. In fact, her statement was usefully trumpeted by the Chinese government and media as a sign of cross-strait Chinese solidarity.

I have never understood the Taiwanese government’s obsession with maintaining its expansive claims in the South China Sea.  It is a waste of government resources to protect a fishing industry that doesn’t really deserve so much protection.  I am particularly surprised that the current Taiwan president is acting so aggressively to protect Taiping Island’s status as an “island” under UNCLOS entitled to an exclusive economic zone.  As far as I understand it, Taiwan has not actually tried to enforce an EEZ around Taiping Island, nor has it tried to exploit any hydrocarbons or minerals in the EEZ.  So as a practical matter, the award will not require the Taiwanese government to change its policy much at all.  There is no “grave harm” to Taiwan’s national interests here.  In fact, the award should have almost no meaningful practical effect on Taiwan at all.

So why the big fuss? It is possible that Tsai is using the South China Sea issue to build a little goodwill in China.  It is also possible that Tsai is feeling pressure from legislators in Taiwan who have been accusing her of failing to adequately protect Taiwan’s interests in the South China Sea.  One former legislature even accused her of planning to lease Taiping Island to the U.S.

All of this is a missed opportunity.  Tsai could have issued a statement saying that Taiwan “respects” the ruling even though Taiwan is not bound by it. She could have then said that Taiwan will act in conformity with the award.  This would have required Taiwan to do nothing new, give up nothing at all. It would have curried favor for Taiwan in the international community, a place it desperately wants to be part of and needs the support of. Being the only country (?) in the world that sides unequivocally with China on this award is not a good look for Taiwan.  One hopes the Tsai government will re-think its approach.

http://opiniojuris.org/2016/07/14/dear-taiwan-pca-ruling-not-threaten-control-taiping-island/

7 Responses

  1. It is easy for spectators to tell Taiwan to calm down. What is at stake here is the 200 NM EEZ around Taiping Island which Taiwan have so far not enforced due to political reasons. Taiwan need all the fishes, hydrocarbons she can get from the South China Sea. Why give it away?

    It is absolutely shocking the PCA judges did not themselves set foot on Taiping Island or send over some members from their team to get first hand evidence to confirm or deny Taiping Island status as an island. What kind of judicial process does not involve a discovery phase? This PCA ruling,especially with regard to Taiping Island status severely damage PCA reputation. It looks like these judges aka tainted jurors have not done their homework and their verdict is so flawed they have caused irreparable damage to the institution more than to Taiwan or China. The fact that the verdict is unanimous sounds very fishy. What kind of court issue this kind of unanimous decision? All politically coerced?

  2. Response…Surely the arbitration did not concern Taiwan and Taiwan, not having been a party to the arbitration, is not bound by the decision.

  3. Response…Given recent Taiwanese elections, I think another motivation is that it’s more important to posture than ever—- the ROC regime cannot appear less protective of Chinese rights than the PRC, because this undercuts the legitimacy of the regime on the island.

  4. That Taiwan has not actually tried to enforce an EEZ nor tried to exploit any hydrocarbons or minerals in the EEZ doesn’t mean that Taiwan will never try to do those in the future. Confirming that Taiwan respects the award and that Taiwan will act in conformity with the award is totally a stupid idea.

  5. Response… Sure, but Taiwan now officially becomes Taiwan Authority of China (TAOC) as the tribunal refers to it numerous times in the award. This seems to be the first authoritative vindication of the One China principle (going even further than the 1992 Consensus) in international law. So the Chinese government should really be told: Hey, good news and bad news. Bad news is we lost South China Sea (in law, not in fact). Good news is, we got Taiwan back (in law, not in fact).

  6. Response…What’s the basis of “It would have curried favor for Taiwan in the international community” should Tsai declared that Taiwan would act in conformity with the award even though it’s not bound by it?

    Would it aid Taiwan’s admission into the UN? No, because when it comes to statehood, PRC will always step in. As such, Taiwan will never be called Taiwan or Republic of China but rather, Chinese Taipei, or as the PCA called it, Taiwan Authority of China.

  7. Facts presented before the Tribunal, including facts marshaled by Taiwan, convincingly prove that Itu Aba is a quintessential Potemkin village that Taiwan created to claim sovereignty over this feature and manufacture entitlements to EEZ and Csh. But before the advent of EEZ/Csh, Itu Aba had known no permanent human habitation of a stable community engaged in economic activity on this feature. The military and other governmental personnel deployed their and heavily supported from the mainland is not human habitation. Their presence there is motivated not by their own volition to inhabit the place, but by official considerations related to disputed sovereignty claims and attempts to aggrandize maritime entitlements.

    But Article 121(3), if you carefully examine its meaning and preparatory works, was intended to prevent States from establishing artificial populations on features like Itu Aba in the hope of making expansive claims at the expense of other coastal states or international community.

    Let’s not allow ignorance or nationalistic sentiments to distort the law and reality. Those who are eager to learn more, consult pages 204-260 of the impeccable Philippines v. China award.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.