Mon, Sep 05, 2016 page3

• FEATURE: Legal experts debate tribunal ruling

  SOUTH CHINA SEA: A seminar was held last month to discuss the Permanent Court of Arbitration’s decision in a case brought by Manila and the Tsai administration’s reaction

  • By Alison Hsiao / Staff reporter
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  President Tsai Ing-wen’s (蔡英文) criticism of a recent international court ruling that Itu Aba Island (Taiping Island, 太平島) was legally a “rock” has tainted Taiwan’s image in the international law community, highlighted the legal bind of Taiwan’s claim to sovereignty over Itu Aba and allied Taiwan with China in a South China Sea territory dispute, academics said.

  Tsai said The Hague-based Permanent Court of Arbitration’s ruling was “absolutely unacceptable.”

  The Taiwan Society of International Law last month held a seminar focused on the ruling and its potential impact on Taiwan — a month after the court issued its ruling in a case brought by the Philippines.

  Society president Yen Ching-chang (顏慶章) said he called for discussions last month so that Taiwanese could weigh in on the issue in a “calmer state of mind.”

  Polls have found that a majority of Taiwanese support the idea of the president visiting Itu Aba to “declare sovereignty over the island.”

  The psychological mechanism that caused the ruling to endanger the Republic of China’s (ROC) sovereignty over the island is not entirely unfathomable.

  The outcry could be a knee-jerk reaction to the fact that court’s “unilateral” decision came in a case where neither parties represented Taiwan, despite the nation’s interests being affected, which is a situation the nation has to confront quite often in a global community where it is not widely recognized and barred from joining the largest international organizations.

  With the ruling, Taiwan has been forced to face up to the reality that it is represented by the People’s Republic of China (PRC) on the international stage as the “Taiwan Authority of China” and that a ruling that aims to restrict the PRC could affect Taiwan as collateral damage.

  Another possible reason for the uproar might come from those who tacitly identify with China’s so-called “nine-dash line,” which Raymond Sung (宋承恩), a researcher with National Chengchi University’s Research Center for International Legal Studies, said is of little difference from Taiwan’s “11-dash line” and actually came from the ROC.

  It could be that for these people, insofar as China’s “nine-dash line” was ruled spurious by the court, the ROC’s “11-dash line,” on which the government bases its claim to Itu Aba, is likewise doomed.

  No matter which line of thought was behind the outcry, the anxiety has been palpable and prompted tough words from Tsai: It was unacceptable that Itu Aba was downgraded — from an island to a “rock” — and it was unacceptable that Taiwan was downgraded to the “Taiwan Authority of China.”

  However, behind the double protests lies an inconsistency: If Taiwan acts in a way that views the South China Sea as “ancestral Chinese properties,” the second protest is a non-starter.

  At the seminar, Sung said that the court reserved room for Taiwan to be “the third party” in the arbitration.

  There remains the question that if the ROC is not recognized and “Taiwan Authority of China” is not acceptable for Taiwan, “what is left for Taiwan to choose for its identity [and to use to take a firm stand in international rulings?]” he said.

  He said the term “Formosa,” which the tribunal constantly referred to when laying out Itu Aba’s history, is a good indication.

  In a separate article, he said that the award is a “love letter” to Taiwan, with the tribunal — as it showed in its ruling — demonstrating that it was not unaware of Taiwan’s status and its intricate history.

  “The arbitral tribunal is telling us that behind all those [names], Formosa is Formosa. The message is that taking off the glasses of the Han people, Taiwan does not have to justify its sovereignty over Taiping Island on the basis of the U-shaped [“nine-dash” or “11-dash”] line or the myth of ‘Chinese people’s ancestral properties,’ but with its own historical connections,” he said.

  So if one wants to deny the legality of the “Taiwan Authority of China,” Itu Aba cannot be claimed on the basis of the “nine-dash line” or the “11-dash line,” as the government is now implicitly enacting, he said.

  The Tsai administration has been careful to not mention the “U-shaped line” in its official statements concerning the South China Sea, and some local media have said that its avoidance of the controversial term is a bid by her government to distinguish itself not only from China, but also from the former Chinese Nationalist Party (KMT) government.

  However, that effort has been too vague and insufficient to differentiate Taiwan’s claims from China’s, Taiwan Thinktank deputy executive director Lai I-chung (賴怡忠) said.

  Taiwan would need to develop a defense for its sovereignty over Itu Aba that is unrelated to the “U-shaped line,” he said.

  Aletheia University professor Chen Li-fu (陳俐甫) raised a critical question concerning the almost-identical claims held by the PRC and the ROC.

  “How would Taiwan defend itself from China stepping onto Taiping Island? Would it not be a domestic affair in the eyes of the international community [if the “U-shaped line” argument continues to be upheld]?” he said.

  Chen called for an appeal to “occupation” as the justification for sovereignty over Itu Aba.

  “Japan renounced its claim to the Spratly Islands [Nansha Islands, 南沙群島] under the 1951 Treaty of San Francisco, which in a way verified that its claim to the islands — until then — was recognized by other countries. While Filipino Tomas Cloma claimed to have occupied Taiping Island first after Japan’s renunciation that made the islands terra nullius, he, however, was only representing himself and did not act in the capacity of the Philippine government,” Chen said.

  The ROC government has since 1956 undertaken “effective management” and its occupation of Itu Aba for more than 60 years should replace the “U-shaped line” as Taiwan’s legal argument for sovereignty, Chen said.

  Lai said that Tsai, besides calling the ruling unacceptable, also failed to declare her administration’s willingness — which the Democratic Progressive Party had done before — to observe the UN Convention on the Law of the Sea in her first public speech after the ruling.

  The president made the speech aboard the frigate Di Hua, which was docked at Zuoying naval base in Kaohsiung before setting off on a routine patrol mission to the waters near the Spratly Islands on July 13.

  Former Mainland Affairs Council deputy minister David Huang (黃偉峰), who is now an associate research fellow at Academia Sinica, said that Taiwan, while not accepting the court’s ruling, should not “discredit” or invalidate the system of international law.

  It is OK for Taiwan to say that it does not accept the ruling that downgraded Itu Aba, but it should appeal to the international legal system first before making such strong responses for the rejection to appear more legitimate, he said.

  Taiwan’s difficult state in the international community might constitute a hurdle to any direct legal action, but Lai said that it does not mean a total dead end.

  “The question concerning the status of Taiping Island could be approached by aligning with other countries that have concerns over [the ruling, which has set a strict legal criterion for islands] on filing lawsuits. Many Pacific Island nations, some of which are Taiwan’s diplomatic allies, for example, could be affected by the tribunal’s decision” and could be Taiwan’s potential allies in the legal battle, he said.
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