Taiwan's battle in the South China Sea

With the recent victory of Taiwanese President Tsai Ing-Wen, questions are being raised over whether it’s appropriate her government now re-visit its claims to the South China Sea.

The claims are similar to those made in Beijing, and if President Tsai is serious about embracing a more robust notion of Taiwanese identity within her government, dropping many of these claims could vastly improve relationships with her Asian neighbours.

Dr Guy Charlton, from New England University’s School of Law, considers Taiwan’s options.

Both China and Taiwan claim historical and geographic links to the South China Sea (SCS).

These claims overlap additional claims by the Philippines, Vietnam, Brunei and Malaysia, and have most recently been represented by China’s “9-dash line”, within which lies approximately 90 percent of the South China Sea.

The line stretches 2,000 kilometres from the Chinese mainland, reaching waters adjacent to Malaysia and Indonesia. It includes the major islands groups of the Paracel Islands and the Spratly Islands, and  includes Scarborough Shoal. Within the area Taiwan controls Dongsha Island, and occupies Taiping Island or Itu Aba, the largest naturally occurring feature in the Spratlys group.

In his book The South China Sea: The Struggle for Power in Asia, author Bill Hayton finds the origin of the “9-dash line” to be in a 1936 map from the New Atlas of China’s Construction, published in 1936 by Bai Meichu, a Chinese cartographer and founder of the China Geography Society.

At the time Chiang Kai-shek’s Republic of China (ROC, also known as Taiwan) embraced the claim, and continued to assert it after it had retreated to Taiwan. The map was used officially for the first time in China in 1947, and was submitted to the United Nations in May 2009 to support China’s claims.

The PRC asserts that within the 9-dash area it “has indisputable sovereignty over the islands of the South China Sea and adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.” It has backed these claims with an extensive land reclamation and settlement policy, militarising several islands it has occupied, and adopting an aggressive diplomatic strategy.

In 2016, an international Arbitral Tribunal released its ruling on a claim brought before by the Philippines under the UN Convention on the Law of the Sea (UNCLOS). The case was initiated by the Philippines, which asked the Tribunal to determine the validity of the Chinese claim.

The court ruled in favour of the Philippines on most points, finding China’s claims to historic rights and resources within its 9-dash line to have no legal basis, and that China’s claimed land features in the sea did not create an exclusive economic zone.

Both ROC and PRC Governments rejected the Tribunal determination with the Chinese Foreign Ministry declaring the Tribunal’s decision “null and void (with) no binding force.” President Xi reinforced this position, stating that the South China Sea islands have been China’s territory since ancient times and its maritime and territorial sovereignty would in no circumstances be affected by the Tribunal decision.

The ROC Foreign Ministry reiterated “that the South China Sea Islands are part of the territory of the ROC and it will take resolute action to safeguard the country’s territory and relevant maritime rights”. President Tsai’s Office also reaffirmed the ROC’s claim of sovereignty over the region.

Taiwan’s legislators also voiced their disagreement with the determination. Wu Ping-jui, the secretary general of the Democratic Progressive Party (DPP) legislative caucus, stated that the ruling was “absolutely unacceptable.” Lin Te-fu, of the opposition KMT agreed, stating that Taiwan “absolutely cannot accept” what he called the “unfair and unjust” ruling.

At issue is the tribunal’s ruling that islands like Itu Aba  - some 44 hectares in size and home to 200 Taiwanese coast guard members - are actually not islands, but “rocks”.

Itu Aba is the largest land feature in the Spratly Islands, claimed by Taiwan for the past seven decades, but also claimed by a group of other Asian nations, not to mention China.

It has its own water, vegetation, and can arguably be regarded as an island under international law via its ability to sustain human life.

But by being demoted to the status of a “rock” Taiwan can no longer claim exclusive economic zone in the waters around it.     

Given the course of Taiwanese foreign relations and diplomatic initiatives, in my view it’s time to limit these territorial claims. The general objective of Taiwan’s policy has been to seek peaceful resolution of territorial disputes in the South China Sea. Stepping back from its own claims now could be the impetus to facilitate additional diplomatic efforts to solve the entire dispute.

It’s unlikely the ROC can legally justify an expansive historic claim in the SCS, however, Taiwan need not give up all of its claims.  It’s evident that whatever the shape of a final resolution on the South China Sea, the PRC’s strategy of asserting a military presence in the region through a gradual change in the status quo will be an important factor.

These “indigenous” Taiwanese claims would be more in concert with traditional international territorial claims, and would signal Taiwan’s unwillingness to use SCS issues to undermine its neighbours - with whom it seeks to expand relations.

Dr Guy Charlton is Associate Professor at the University of New England Law School in New South Wales. He is also associated with the AUT in Auckland, and with the National Chengchi University in Taipei.

- Asia Media Centre