Discipline lies at heart of dispute

By Chiang Huang-chih 姜皇池  / 

Fri, Aug 17, 2012 - Page 8

Rear Admiral Chang Feng-chiang (張鳳強), until recently commander of the Republic of China (ROC) Navy’s 168th Fleet, was given a major demerit following a military investigation and moved to a different post over an incident during a naval exercise late last month. Chang strayed beyond the designated area of the Air Defense Identification Zone (ADIZ) and into the territorial waters of Japan’s Yonaguni Island, where the vessel under his command remained for 11.5 hours.

The whole affair has caused quite a stir, with some saying that the disciplinary action was a show of weakness on our part to Japan, and that this has damaged our standing. People are also questioning why Chang has been singled out for discipline. He was not the only person responsible for the incident.

There are academics specializing in military affairs, but from the arguments we have been hearing regarding international law and diplomatic implications, it seems certain commentators have a poor grasp of international law.

For a start, the idea that this incident is “tantamount to unequivocally declaring the abandonment of our interests, constricting our rights of sovereignty and jurisdiction,” and that it is detrimental to our claims of sovereignty over the Diaoyutai Islands (釣魚台) and maritime rights in the area, betrays a degree of confusion over the facts of the matter.

The warship was outside the territorial waters of Yonaguni Island, at quite a considerable distance from the Diaoyutais, and the supposition that this in some way damages our claim to sovereignty over the Diaoyutais holds little water.

Regarding the disciplinary action, the contention that this was a show of weakness to Japan is even less justified. Our warships were positioned just outside Yonaguni’s territorial waters for more than 10 hours. Japan dispatched surveillance aircraft to monitor the event and made inquiries through diplomatic channels to understand the nature of the situation. Any country would do the same given the similar circumstances.

Legally speaking, our warships were positioned in overlapping areas of Japan’s and Taiwan’s economic waters, in which both countries enjoy freedom of navigation and the right to perform military exercises. However, because Japan claims jurisdiction over the waters to the east of the imaginary demarcation line both countries hold, and these waters indeed border on the territorial waters of an island they control, Japan’s conduct was entirely reasonable.

Had Japanese warships appeared in waters to the west of the demarcation line in economic waters shared by both countries, we would naturally also have paid attention, just as we would have attempted to ascertain the intent of the other party. This is normal: It has nothing to do with intimidation, nor is it a show of weakness.

Some people contend that disciplining Chang for straying beyond the ADIZ will limit our options in the future, and also that it is unwise to restrict ourselves to conducting military exercises within the ADIZ. If this really is the case, and we are going to be punishing personnel for this, I would agree that it is unwise. However, if you look at Taiwan’s naval exercises over previous years, they certainly have not been restricted to the ADIZ. Given that the ROC Navy is not structured as an offensive force, and is essentially defensive in nature, it is free to conduct military exercises out at sea, so long as these are carried out in international waters and not within the territorial waters of other nations. For example, the navy goes far and wide on annual goodwill tours and inspections of distant territories such as the Pratas Islands (Dongsha Islands, 東沙群島) and Spratly Islands (Nansha Islands, 南沙群島) — evidence if any were needed that these operations are not limited in scope to the ADIZ.

I myself have been on a naval expedition out to Itu Aba Island (Taiping Island, 太平島), the largest of the Spratlys, to plant a flag on the Jhongjhou Reef (中洲礁) to “strengthen our sovereignty claim.”

According to the navy, however, the reason for the disciplinary action in this case was that “no changes should be made to the battle plan without the prior consent of the navy command,” and that Chang’s actions had “contravened exercise discipline.”

In other words, it is not that military exercises are restricted to the ADIZ. Chang was disciplined because this year’s exercises were to be carried out within this area, and the fleet commander had gone beyond the area boundaries without first receiving clearance from navy command.

There have also been questions about why it was decided to single out Chang for discipline, and whether the punishment itself was excessive. Again, this has nothing to do with autonomy or claims thereof. Nevertheless, it was acknowledged that enormous amounts of time and money go into training a naval commander, and Chang still has recourse within the system. If he is found not to have been at fault, or if the punishment is later deemed to be excessive, then it is right that he will be treated fairly.

The fact that others also share responsibility for the incident, or that others may have been guilty of similar transgressions in the past and have gotten away scot-free has no bearing on the decision to discipline the commander. If someone gets fined for running a red light, they cannot dispute the fine by complaining that others have gotten away with it before. You cannot use this kind of argument for equal treatment or fairness in this way in the law. Chang certainly never asked for this, and yet certain quarters have kicked up a fuss about it. It is for the authorities responsible to decide whether to investigate or discipline him.

The issue of sovereignty is a sensitive one, especially when it comes to territorial disputes, and it is difficult for people not to feel a sense of righteous indignation at what is going on. Nevertheless, from the perspective of international law and foreign relations, the issue of discipline really has nothing to do with sovereignty disputes. In the absence of any other incriminating facts, there is no need for members of the public to allow their imaginations to run away with them, or for them to confuse the issue of military discipline with questions of sovereignty.

Chiang Huang-chih is a professor of law at National Taiwan University.

Translated by Paul Cooper