The Ministry of the Interior recently submitted two old sets of regulations to the Executive Yuan for abolishment. Those regulations, enacted in 1949 by the retreating KMT government, concern the administration of Hainan island. (The KMT troops initially retreated from the Chinese mainland to Hainan and Taiwan, but later withdrew from Hainan, which was then taken by communist troops.)
Opinions both for and against the plan have been voiced. What effect will this have on the ROC's sovereignty claim on the four island groups in the South China Sea -- the Pratas Islands, the Paracel Islands, the Macclesfield Bank and the Spratly Islands? I would like to discuss the issue along with the ROC's policy guidelines on the South China Sea, which were announced 10 years ago.
Generally, new countries that arise after wars clearly define their national territory in their Constitutions. This is also the case with our country. Article Four of the Constitution states: "The territory of the Republic of China according to its existing national boundaries shall not be altered except by resolution of the National Assembly." The meaning of "existing national boundaries" is extremely vague and invites different interpretations. A relatively feasible approach therefore is to define it on the basis of the actual territory that existed at the time when the Constitution was enacted.
After taking over the four island groups from Japan in October 1946, the ROC government sent personnel there for inspection, erected landmarks, conducted surveys, set up a management office and built a meteorological radar station. It also temporarily included the four island groups under the Canton provincial government. The Constitution was adopted by the National Assembly in December 1946.
In other words, the ROC had already taken over the four island groups from Japan when the Constitution was adopted. There should be no doubt therefore as to whether they were within the "existing national boundaries" of the time.
The two sets of regulations in question -- the Organic Law of the Hainan Special Administrative Region Chief Executive's Administration (
In terms of legal status, they are jurisdictional regulations -- different from territorial sovereignty provisions, which belong to the constitutional level. Though jurisdictional, these two sets of regulations have their roots in the Constitution and effectively augment it.
Due to political changes, the government can no longer implement these regulations. To safeguard legal order, the only choice is to abolish these 54-year-old regulations, which the government will not be able to implement in the foreseeable future. These are not the type of regulations that are applicable after revision.
Some have questioned whether abolishing these regulations will have a negative impact on the nation's claim of sovereignty over the four island groups because they are the ROC's only laws related to the island groups. In international law, the acquisition of territory emphasizes long-term occupation and effective control. Laws defining the territory are not necessarily a requirement. Of course, laws combined with effective control will make a much more persuasive case.
There is clear evidence showing that Taiwanese fishermen initially lived on those four island groups and that they were later driven out, first by Western invaders such as the French and the British, and then by Vietnam and the Philippines. After 1917, Chinese businesspeople on the mainland filed applications with the Canton provincial government for mining licenses on the Paracel Islands. Apparently, the ROC government had effective control over the Paracel Islands at the time.
In March 1939, when Taiwan was under Japanese rule, the four island groups were placed under Kaohsiung City's jurisdiction. After World War II, the ROC took over the four island groups and obtained jurisdiction over them according to the principles of territorial transfer. Japan renounced the island groups in the 1951 San Francisco Peace Treaty, but the ROC already obtained sovereignty over them in October 1945.
Excluding the ROC from the matter will therefore jeopardize international order.
The ROC government later retreated to Taiwan, but has never intended to renounce the four island groups. It has issued many orders and statements claiming possession of the island groups. The Territorial Waters and Neighboring Areas Law (
The announcement only included the base points and baselines for the Pratas Islands, but not those for the other three island groups. But that does not affect the nation's claim over them.
In other words, if we look at the laws and executive orders mentioned above, the ROC has a rather complete set of regulations on the four island groups. Abolishing the old laws will not affect the country's legal arrangements for them or create a legal fault line.
Apart from passing laws and issuing the necessary statements, it is also worth noting that practical, effective action is necessary to realize the laws and sovereignty claims on the island groups. Malaysia, the Philippines, Vietnam and China have time and again taken real action on the islands. Such actions are attempts to prove ownership. In contrast, our country has been very quiet.
It's time for the government to review what policies it has implemented and what actions it has taken -- apart from paying lip service -- since the promulgation of the South China Sea policy guidelines 10 years ago.
Chen Hurng-yu is a professor of history at National Chengchi University.
Translated by Francis Huang
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