The Permanent Court of Arbitration in The Hague, Netherlands, has issued a “unanimous award” in the arbitration case between the Philippines and China over disputed sovereignty claims in the South China sea. The tribunal’s verdict is clear — there are no grounds for a dispute. However, in reality a significant dispute does exist.
The tribunal initially considered whether it has jurisdiction over the case — and concluded that it did. Second, it found that no state may exempt itself from the mechanism for the resolution of disputes, as set out in the UN Convention on the Law of the Sea (UNCLOS). Third, the tribunal determined that China’s non-participation in the proceedings was not a barrier to preventing the tribunal from continuing with the adjudication process.
As for the substance of the dispute, Article 121.1 of the UNCLOS defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.”
However, the tribunal applied a legal interpretation to Article 121.1 to extend its definition to include an additional four conditions to determine the attributes of islands and “rocks.” It is a judge-made law, which might seem reasonable on the outside, but the tribunal’s judges have actually exceeded their powers.
Immediately following the announcement of the tribunal’s verdict, there was concern in Tokyo that Japan might now face a challenge from Beijing over the Okinotori atoll and the Senkaku Islands (Diaoyutai Islands, 釣魚台).
The Philippine side made a specific case for Mischief Reef (Meiji Reef, 美濟礁), Second Thomas Shoal (Ayungin Shoal, 仁愛礁) and Subi Reef (Jhubi Reef, 渚碧礁), arguing that they are low-tide elevations not entitled to a territorial sea, exclusive economic zone or continental shelf.
However, the tribunal’s judges, instead of confining themselves to passively examining these specific cases, chose to apply a universal logic to all of the other islands claimed by China and concluded that all of the high-tide features in the Spratly Islands (Nansha Islands, 南沙群島) — for example, Itu Aba Island (Taiping Island, 太平島), Thitu Island (Jhongye Island, 中業島), West York Island (西月島), Spratly Island (南威島), Northeast Cay (Beizih Reef, 北子礁) and Southwest Cay (Nanzih Reef, 南子礁) — are rocks. This is a questionable enlargement of the scope of the tribunal’s remit by the judges.
After examining Beijing’s “nine-dash line” terrritorial claim, the tribunal concluded that it was a matter of “historic rights to resources,” that only fishermen had made use of the islands and that there was “no evidence that China had historically exercised exclusive control over the waters or their resources.”
The tribunal concluded that “fishing by China in the waters of the South China Sea represented the exercise of high seas freedoms, rather than a historic right.”
Premier Lin Chuan (林全) said that Taiwan “absolutely cannot accept” the findings.
In doing so the government has shot itself in the foot over its “new southbound policy.” This might be forgivable, but the minister of foreign affairs has been singing from Beijing’s hymn-sheet by voicing support for the “nine-dash line.” This is equivalent to echoing the new moniker for Taiwan minted by the ruling, which is: “Taiwan Authority of China.”
According to media reports on the tribunal’s findings, Taiwan’s intelligence-gathering activities and national security decisionmaking processes are inaccurate.
President Tsai Ing-wen’s (蔡英文) administration must tackle head-on the grim state of Taiwan’s national security apparatus, which is still severely lacking in many areas.
HoonTing is a political commentator.
Translated by Edward Jones
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