China is Attempting to expand its territorial waters by artificially expanding reefs in the Spratly Islands (Nansha Islands, 南沙群島).
On Oct. 27, the US sent the USS Lassen guided-missile destroyer to sail into the 12-nautical mile (22.2km) zone China claims around the Spratlys. Two days later, the Hague-based Permanent Court of Arbitration ruled that it has jurisdiction to hear claims the Philippines has filed against China over territorial disputes in the South China Sea, regardless of whether China appears in court, which shows that international law is the best way to resolve territorial disputes in the region.
Beijing’s claim that territorial issues can only be negotiated politically and not judicially has been rejected by developed nations.
China’s “nine-dash line” territorial claim over South China Sea originates from the “U-shaped line” used by its predecessor, the Republic of China (ROC). The UN Convention on the Law of the Sea does not recognize historic claims to waters that are not bays.
Under customary international law, according to the conclusion drawn by the UN Secretariat in 1962, for a claim to historical waters to succeed, the state making the claim must have exercised sovereignty over the waters for a period of time and, more importantly, other states must have acquiesced to its exercise of sovereignty.
So, even if China continues to claim the islands in the South China Sea as its historic territory and build artificial islands on the Subi Reef (Jhubi Reef, 渚碧礁) and Mischief Reef (Meiji Reef, 美濟礁), as long as the US keeps sending warships into the region to voice its opposition, China’s efforts would not come to fruition.
As for Taiwan, which says that the South China Sea is the ROC’s historic waters, it has never publicly declared that the waters within the traditional “U-shaped line” are its historic waters and cannot provide historical evidence to prove that it has continuously exercised sovereignty in the South China Sea.
Neither the Treaty of San Francisco, to which the ROC was not a signatory, nor the now defunct Treaty of Taipei stipulate that the Spratlys should be returned to the ROC. Also, more than 170 nations abide by UN General Assembly Resolution 2758 and acknowledge that the ROC has been replaced by the People’s Republic of China, and therefore is no longer a legal entity under international law. This means the ROC cannot exercise sovereignty over the traditional “U-shaped line,” let alone associate itself with the governing history of China in this region prior to 1971.
This explains why the Philippines did not file claims against the ROC and why the Permanent Court of Arbitration not solicit the ROC for opinions. Just as the Ministry of Foreign Affairs on Oct. 31 announced, the arbitration does not affect the ROC in any way, because the ROC has ceased to exist.
However, although Taiwan cannot take part in the arbitration pertaining to disputes in the South China Sea, it should support the arbitration process and its awards, instead of joining Beijing in saying that it “neither recognizes nor accepts its awards.”
Nations such as Cambodia, Thailand, Malaysia, Singapore and Japan have tried to resolve territorial disputes in the International Court of Justice, which shows that only by resorting to international law and can illegal territorial expansions be curbed.
The ministry’s statement is replete with errors, making Taiwan an accomplice to a rogue state, which is a shame to the nation.
Chris Huang is an associate professor in National Tsing Hua University’s Institute of Law for Science and Technology.
Translated by Ethan Zhan
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