Taiwan and the South China Sea: More steps in the right direction

In early May 2015, I published a report arguing that Taiwan’s position in the South China Sea was evolving. It had taken small but significant steps toward clarifying that its claims are from land and in accordance with the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and international law. In addition, Taiwan had also adopted a more conciliatory position by advocating that its East China Sea Peace Initiative, which calls on parties to shelve disputes and promote joint exploration and development, be applied in the South China Sea as well.

Since then, Taiwan, one of the six claimants in the South China Sea dispute along with China, the Philippines, Vietnam, Malaysia and Brunei, has moved to take additional positive steps, most notably, officially launching a South China Sea Peace Initiative. In a climate where much of the news on the South China Sea has been negative and where the focus has largely been on deterrence, positive actions warrant highlighting. If the goal is a more stable and peaceful region, rewarding positive behavior is at least as important as deterring negative behavior.

In my report, I made various recommendations, namely, that Taiwan should:

1. Continue clarifying that its claims accord with UNCLOS and international law without expressly eschewing the dashed or U-shaped line encompassing much of the South China Sea.
2. Tread carefully on any public education on Taiwan’s claims to avoid unleashing nationalist sentiment, which would limit policy options.
3. Continue promoting President Ma Ying-jeou’s plan for the East China Sea in the South China Sea.
4. Push behind the scenes for participation in code of conduct negotiations and in cooperative activities involving all claimants.
5. Provide evidence that Taiping Island is an “island” capable of sustaining human habitation or economic life under Article 121 of UNCLOS.

Less than a month later, President Ma officially launched a South China Sea Peace Initiative. It calls upon all parties concerned to:

1. Exercise restraint, safeguard peace and stability in the South China Sea, and refrain from taking any unilateral action that might escalate tensions;

Respect the principles and spirit of relevant international law, including the Charter of the United Nations and UNCLOS, peacefully deal with and settle disputes through dialogue and consultations, and jointly uphold the freedom and safety of navigation and overflight through the South China Sea;
Ensure that all parties concerned are included in the mechanisms or measures that enhance peace and prosperity in the South China Sea, for instance, a maritime cooperation mechanism or code of conduct (COC);
Shelve sovereignty disputes and establish a regional cooperation mechanism for the zonal development of resources in the South China Sea under integrated planning; and
Set up coordination and cooperation mechanisms for such non-traditional security issues as environmental protection, scientific research, maritime crime fighting, and humanitarian assistance and disaster relief.

The U.S. Department of State has publicly expressed support of Taiwan’s initiative, stating that it “appreciate[s]” Taiwan’s call on claimants to exercise restraint, to refrain from unilateral actions that could escalate tensions, and to respect international law as reflected in UNCLOS.

China’s Ministry of Foreign Affairs was considerably cooler. It “noted” the initiative and asserted that “Chinese people across the Taiwan Straits are obliged to jointly safeguard national territorial sovereignty and maritime rights and interests, and maintain peace and stability in the South China Sea.” The response was a missed opportunity to demonstrate China’s sincerity in seeking a peaceful resolution to the dispute: Taiwan’s peace initiative is in step with the Chinese foreign ministry’s dual-track approach, namely, to seek one-on-one negotiations on sovereignty issues, and multilateral arrangements within the region to promote peace and stability in the South China Sea.

The Association of Southeast Asian Nations (ASEAN) and its member states arguably have an incentive to respond positively to the peace plan, given that it could help rein in tensions. However, they too have remained silent. When asked at a public forum about whether Singapore would support Taiwan’s peace initiative, Singapore’s Minister for Foreign Affairs and Law responded that the views of the others should matter more since Singapore was not a claimant state. Certainly, the Philippines, Vietnam, Malaysia and Brunei have a particular interest in supporting the peace initiative as tensions rise and their abilities to defend their territorial and maritime interests wane relative to China’s. But Singapore and the other non-claimant states are also stakeholders in that they have an interest in seeing the dispute managed peacefully. ASEAN and its member states are arguably unduly conservative when dealing with Taiwan because of China’s huge economic and political clout. My report argues that being more receptive towards Taiwan’s overtures need not fall foul of China’s one-China policy.

Taiwan has also moved further to clarify its claims. Its Ministry of Foreign Affairs revised Taiwan’s official statement on the South China Sea to incorporate specific reference to UNCLOS. Thus, statements dated April 29, 2015 and July 7, 2015 call on countries to respect the principles and spirit of all relevant international law, “including the Charter of the United Nations, and the United Nations Convention on the Law of the Sea.” Earlier statements on Taiwan’s position had merely urged neighboring countries “to respect the principles and spirit of international law.”

Express mention of UNCLOS in this context (along with President Ma’s earlier affirmations that “the land dominates the sea” highlighted in my report) is significant in that it suggests that when Taiwan claims the Nangsha (Spratly) Islands, Shisha (Paracel) Islands, Chungsha Islands (Macclesfield Bank) and the Tungsha (Pratas) Islands as well as their “surrounding waters,” it is claiming UNCLOS-compliant maritime zones. UNCLOS clearly stipulates that a coastal state is entitled to a territorial sea extending up to 12 nautical miles from its coast, as well as an exclusive economic zone (EEZ) extending up to 200 nautical miles over which it has sovereign rights to explore, exploit, conserve and manage natural resources. A coastal state also has sovereign rights to explore and exploit the natural resources of its continental shelf of 200 nautical miles or more in some instances. The Convention makes clear that maritime zones are measured from land territory.

The reference to UNCLOS still leaves some ambiguity in place. It falls short of expressly abandoning the dashed line as some former U.S. officials in their private capacity and scholars have called for. My report argues that explicitly abandoning the dashed line could be destabilizing for political reasons. (Publicly, the U.S. administration has remained silent on the issue; in private, it has “encouraged” Taiwan—along with other claimants—to “clarify” its claims in the South China Sea.) A commitment to observing the Convention renders the dashed line no more than a marker of Taiwan’s claim to the land territories contained therein and maritime zones made from them in accordance with UNCLOS and international law; it cannot be interpreted as a claim to the wide expanse of water within it.

Finally, Taiwan has provided evidence that aims to show that Taiping Island is an “island” entitled to an EEZ and continental shelf and not a “rock” entitled only to a 12 nautical mile territorial sea because it cannot sustain human habitation or economic life. This is important insofar as it further signals that Taiwan is playing by the UNCLOS rule book. Quite apart from assisting the tribunal in the on-going Philippines v China case to give due regard to Taiwan’s rights and interests, it also supports consistency between Taiwan’s claims and UNCLOS.

While Taiwan had previously issued statements on Taiping Island, the July 7, 2015 statement was the first time that it officially provided evidence that Taiping Island is capable of sustaining human habitation and economic life. Paragraph 3 of the statement details that

For the past six decades, ROC military and civilian personnel have dwelled on Taiping Island (Itu Aba), conducting their respective missions while making use of and developing its natural resources. Taiping Island (Itu Aba) has groundwater well,s natural vegetation, and phosphate ore and fisher resources. Moreover, personnel stationed on the island cultivate vegetables and fruit and rear livestock. In 1959, personnel built the Guan Yin Temple, dedicated to the Bodhisattva of Compassion. From legal, economic, and geographic perspectives, Taiping Island (Itu Aba) indisputably qualifies as an “island” according to the specifications of Article 121 of the United Nations Convention on the Law of the Southeast Asia (UNCLOS), and can sustain human habigation and economic life of its own; it is thus categorically not a “rock.”

The claim that Taiping Island is an “island” is supported by numerous photographs (complete with resident dogs!) as well as a well-made video of Taiping Island and the human and economic activities that take place on it. If indeed these photographs and video images are of Taiping Island—and there is no reason to believe that they are not—they are convincing.

The opening segment of the video is particularly interesting and well-worth a watch. When the narrator mentions the four groups of features in the South China Sea that Taiwan lays claim to, they are each animated in turn. In contrast, no dashed line appears when “surrounding waters” is mentioned. A different map than the Location Map of the South China Sea containing the dashed line and carried on ministry websites is used. The Location Map is referenced and shown a little later in the video, but more by way of historical context.

The recent steps Taiwan has taken as well as the earlier ones outlined in my report are important as they could have a stabilizing effect in the South China Sea. The People’s Republic of China inherited its claims from the Republic of China (Taiwan) after the Chinese civil war. Thus, how Taiwan interprets its claims is relevant to China’s claims. Notably, a more limited reading of the claims would not be inconsistent with China’s official position as set out in its 2009 and 2011 Notes Verbales to the United Nations. In these statements, China claims “sovereignty” over the islands in the four archipelagos in the South China Sea, as well as to the “waters adjacent to the islands.” In addition it claims “sovereign rights and jurisdiction” over “relevant waters.” “Waters adjacent to the islands” could be read as a reference to territorial waters and “relevant waters” to the EEZ and continental shelf.

Taiwan has demonstrated considerable political will and flexibility in seeking to play a constructive role in the South China Sea, notwithstanding the political constraints it faces. It is now up to other actors with an interest in peace and stability in the region to support its efforts. This takes on added urgency with heightening tensions in the region and Taiwan’s upcoming elections with uncertain consequences for its South China Sea policy and broader relations with China.