The world is watching the standoff between China and the Philippines over ownership of the Scarborough Shoal, known as Huangyan Island (黃岩島) in Taiwan, which also lays claim to it. Meanwhile, there have been reports of Vietnamese soldiers opening fire on Taiwanese stationed on Taiping Island (太平島), the largest of the disputed Spratly Islands (Nansha Islands 南沙群島).
Driven by public anger, legislators are falling over each other in their enthusiasm to make inspection tours of Taiping as well as the Pratas Islands (Dongsha Islands, 東沙群島). Many have been vocal in calling for the defensive capabilities of these territories to be reinforced and for the deployment of more powerful weaponry — a position I wholeheartedly support.
These actions would allow Taiwan to show who actually controls the islands and a response needs to be formulated now, especially in regards to the Pratas and Spratly islands, over which the Republic of China (ROC) has exercised actual control for more than half a century. The government must think very carefully and plan just how it can reinforce control and consolidate its sovereignty over these territories.
Faced with territorial disputes in the South China Sea, the Ministry of Foreign Affairs has reiterated time and again that historically, geographically and based on international law, the territories of the Spratlys, the Paracel Islands (Xisha Islands, 西沙群島), the Macclesfield Bank (Zhongsha Islands, 中沙群島) and the Pratas Islands, together with their surrounding waters, belong to the ROC and that it exercises sovereignty over them. However, claiming sovereignty over all the islands in the South China Sea is not consistent with the facts and fails to accept the reality of the situation. It is perhaps time for a reappraisal.
In international law, the major factors deciding territorial sovereignty claims are historical control (historical rights); actual, current control (de facto, effective control); and the position of members of the international community, to the extent that they recognize one’s claims, whether overtly or tacitly. If a country has not been able to maintain control over the territory in question all the way to the present day, only historical rights can be used to support a claim and must be used in conjunction with a claim based on the current reality. In other words, in deciding sovereignty rights over disputed territories, the value of historical documents in themselves is limited.
The foreign ministry and the Ministry of the Interior have repeatedly stated that the Scarborough Shoal, as well as the Macclesfield Bank of which it forms a part, all belong to the ROC. However, Taiwan has never actually governed this territory, which has never been internationally recognized as belonging to Taiwan.
This stance on sovereignty over these territories is based on records from China, which controlled them in the past, in addition to pre-1949 maps showing what is known as the “U-shaped demarcation line.” However, as has just been pointed out, “evidence” demonstrating whether a given country has governed a territory historically is not really crucial to the argument. It follows that territories that belonged to China during the Yuan Dynasty now actually belong to the People’s Republic of China (PRC), which governs China, and not the ROC. Since the ROC no longer represents China, these historical documents and maps really have nothing to do with Taiwan. Any attempt to make a sovereignty claim over the Macclesfield Bank based on this paperwork has no validity under international law.
In the same vein, Taiwan also claims sovereignty over the Paracel Islands, but the largest island in this group — the 2.1km2 Woody Island (Yongxing Island, 永興島) — has been controlled by the PRC since 1950 and the rest of the island chain came under effective Chinese control following the 1974 Battle of the Paracel Islands between the PRC and Vietnam. China has controlled all of the Paracels ever since. The ROC has not had a presence on the Paracel Islands since 1950 and has not been able to control them in that time; neither has its claim over the Paracels been recognized by any member of the international community. To claim sovereignty over the Paracels therefore, has as much foundation in international law as any claim over the Macclesfield Bank — in other words, none. In the absence of a legal basis for its claim, should Taiwan resort to the use of power? I fear not. Not given the current state of play.
In other words, Taiwan has about as much claim over the Paracel Islands and the Macclesfield Bank as it does over the Chinese mainland, whether historically or in terms of effective control or international recognition. Unless it is going to persevere with the old plan of “vanquishing the Communist bandits and retaking the mainland,” there is no way the ROC can build a legal claim over them.
As far as the South China Sea is concerned, Taiwan’s options are limited in to trying to hold on to Taiping Island and Pratas Island. Reinforcing the defenses on the latter would be no easy matter, while the former is a long way from Taiwan. Whether Taiwan’s national defense forces can extend that far is debatable: It’s viable as long as the international power balance is maintained, but as soon as there is an incident, it will be difficult to keep hold of it.
A lot of thought needs to go into any decision concerning the deployment of our forces in territories so far from home.
Chiang Huang-chih is a professor of law at National Taiwan University.
Translated by Paul Cooper
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