Despite strong opposition from the US, President Ma Ying-jeou (馬英九) insisted on visiting Itu Aba Island (Taiping Island, 太平島) last month to “defend” Taiwan’s national interests.
Ma has maintained the position that although the visit made the US unhappy, it was justified and necessary.
However, in terms of Taiwanese sovereignty, Ma’s visit to the island can be viewed from several legal perspectives.
The Philippine government, in its ongoing lawsuit with China over the ownership of atolls and islets in the South China Sea, has not emphasized its claim over Itu Aba Island. Instead, it has given prominence to Taiwan maintaining effective occupation of the island. This is because the Philippine government is using Itu Aba as the focal point of its lawsuit with China.
It claims that Itu Aba does not have fresh water sources or arable land, so that it can only be used as a garrison by the Republic of China (ROC) military. Therefore, the Philippine government’s legal team argues that the island is a rocky outcrop and, as such, does not command a 200 nautical mile (370.4km) exclusive economic zone, or a continental shelf.
Faced with such an argument, the Taiwanese government would be justified in mounting a defense in support of Itu Aba Island’s coastal rights.
Further, since Taiwan is unable to participate in the arbitration process at The Hague’s Permanent Court of Arbitration, all it can do is draw upon factual evidence and carry out a series of actions to refute the claims made by the Philippine government.
For this reason, in December last year, Minister of the Interior Chen Wei-zen (陳威仁) set foot on Itu Aba, brought back produce grown on the island and laid on an “Itu Aba lunch” for Ma.
The Minister of Foreign Affairs David Lin (林永樂), Mainland Affairs Council Minister Andrew Hsia (夏立言) and Coast Guard Administration Minister Wang Chung-yi (王崇儀) on Jan. 22 visited the island. Lin, using the weight and symbolism of his office, convened a news conference in an effort to prove that Itu Aba possesses a supply of fresh water, locally produced agricultural products and can support human habitation.
The US has, on the whole, displayed goodwill toward Taiwan over the issue. Not only has Washington refrained from issuing veiled criticisms of the many bombastic statements issued by Ma’s administration, but it appears to approve of the government’s actions.
This can be seen in the way that US officials, when referring to Itu Aba in official documents and statements, use the name “Taiping Island” instead of “Itu Aba,” which is the name normally used in the West.
The US has not sought to deny Itu Aba’s status as an island, which has the effect of giving tacit recognition of Itu Aba as an island. Contrast this with how the US refers to the areas in the South China Sea occupied by China. Washington refers to these as “reefs” or “low tide elevations.” The US is clearly making a deliberate distinction.
However, if the government deems the situation serious, then these actions and the international response are inadequate. Therefore, the government must take no chances and formulate a robust, clear and effective response focused on core legal issues.
Ma must emphasize that Itu Aba is an island and not a reef, that it has a supply of fresh water that can support human habitation, arable land suitable for farming, a self-supporting economy and complies with Clause 121, Article 3 of the UN Convention on the Law of the Sea.
This is a penetrating argument that gets to the core of the issue. To further emphasize the facts, Ma should drink water from a well on the island, taste food produced there, assist in the creation of vivid imagery and partake in activities that support the government’s case. In this way, the president would be doing his duty in upholding Taiwan’s national interests — supposing this is the president’s original intention.
Although there might be opposition from the US, the public would wholeheartedly support the actions.
However, what Taiwanese do not approve of is Ma, who is repeating ad nauseam that he is upholding national sovereignty, when his visit failed to touch upon the issue of Taiwanese sovereignty over the island. On the contrary, the remarks Ma made during his trip — and the underlying legal argument that sits behind these remarks — have severely damaged the nation’s sovereignty.
When Ma made a speech on the island, he said all the islands in the South China Sea fell under the sovereignty of China.
“In response to the decades of dispute regarding sovereignty over the South China Sea islands and maritime rights, we must state clearly that these islands were first discovered, named and used by the Chinese during the Western Han Dynasty. They were incorporated into the maritime defense system no later than 1721, in the Kangxi period of the Qing Dynasty, with patrols and other management measures,” he said.
After the ROC was founded in 1912, the government published maps of the South China Sea islands in 1935 and 1947, reaffirming to the international community ROC sovereignty over the islands and their surrounding waters.
The remarks set out an important legal doctrine that the “South China Sea islands” have since time immemorial been Chinese territory.
Accepting the argument that Itu Aba has since time immemorial belonged to China, so that China is the only government that can rightfully claim sovereignty over it, can only benefit China. His attempt to provide proof of an interest in the sovereignty of the island has resulted in Ma defending the interests of China.
Due to the importance of maintaining peace across the Taiwan Strait, last year’s meeting between Ma and Chinese President Xi Jinping (習近平) attracted a great deal of attention, despite that Ma stuck closely to the so-called “one China” principle.
By protecting the interests of Itu Aba and declaring its status as an island, Ma appears to have justice on his side. As with last month’s presidential election, Ma’s visit to Itu Aba has caught the attention of the international community.
However, by concealing a message that the island is Chinese territory — although Ma said he is protecting Taiwan’s national interests — everything he has done has had the opposite effect of recognizing the “one China” principle as defined by Beijing.
Even worse, Ma defined all islands within the South China Sea — including Taiwan — as belonging to China.
No wonder Beijing supports the Taiwanese “leader’s” visit to Itu Aba and praises Ma’s “upholding of the sovereign territory of the Chinese people.”
Chiang Huang-chih is a professor of law at National Taiwan University.
Translated by Edward Jones
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