Dean Karalekas
Building Trust in the Asia-Pacific
P.K. Ghosh
A Role for Taiwan in South China Sea
Mu-lan Kao
Taipei’s Constructive Engagement
Jonathan Spangler
Award Perpetuates Divisions
Serafettin Yilmaz & Tsung-han Tai
Submissions: Essays submitted for publication are not to exceed 2,000 words in length, and should conform to the following basic format for each 1200-1600 word essay: 1. Synopsis, 100-200 words; 2. Background description, 100-200 words; 3. Analysis, 800-1,000 words; 4. Policy Recommendations, 200-300 words. Book reviews should not exceed 1,200 words in length. Notes should be formatted as endnotes and should be kept to a minimum. Authors are encouraged to submit essays and reviews as attachments to emails; Microsoft Word documents are preferred. For questions of style and usage, writers should consult the Chicago Manual of Style. Authors of unsolicited manuscripts are encouraged to consult with the executive editor at xiongmu@gmail.com before formal submission via email. The views expressed in the articles are the personal views of the authors and do not necessarily represent the views of their affiliate institutions or of Strategic Vision Manuscripts are subject to copyediting, both mechanical and substantive, as required and according to editorial guidelines. No major alterations may be made by an author once the type has been set. Arrangements for reprints should be made with the editor. Cover photograph of aircraft carrier USS John C. Stennis during Rim of the Pacific 2016 is courtesy of Jason Noble.
Editor
Fu-Kuo Liu
Executive Editor
Aaron Jensen
Associate Editor
Dean Karalekas
Editorial Board
Tiehlin Yen
Raviprasad Narayanan
Richard Hu
Guang-chang Bian
Dahua Mo
Lipin Tien
(ISSN 2227-3646) Volume 5, Number 28, September, 2016, published under the auspices of the Center for Security Studies and National Defense University.
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© Copyright 2016 by the Center for Security Studies.
Articles in this periodical do not necessarily represent the views of either the MCSS, NDU, or the editors
The editors and staff of Strategic Vision would like to wish our readers well during this autumn season. The Asia-Pacific continues to undergo important developments. In this issue, we give special attention to the impact that the Arbitral Tribunal’s award has had on developments in the South China Sea and the region as a whole.
We open this issue with Strategic Vision’s associate editor, Dean Karalekas, who argues that China’s assertive actions are creating a dangerous regional polarization.
Next, Mu-lan Kao, a PhD candidate at the Institute of the Law of the Sea at National Taiwan Ocean University discusses ROC policy towards disputes in the South China Sea and asserts that Taiwan has a constructive role to play in the region.
In seeking solutions to disputes, Jonathan Spangler, director of the South China Sea Think Tank, suggests that Taiwan’s policy of shelving disputes can be successfully applied by rival claimants in the South China Sea.
Dr. Serafettin Yilmaz and Dr. Tsung-han Tai, currently visiting scholars at Shandong University in China, argue that the Arbitral Tribunal’s award perpetuates regional problems.
Finally, Dr. P.K. Ghosh, a Senior Fellow at the Observer Research Foundation in India, argues that claimant countries in the dispute must undertake a serious of constructive steps to reduce simmering tensions.
We hope you enjoy this issue, and look forward to bringing you the finest analysis and reporting on the issues of importance to security in the Taiwan Strait and the Asia-Pacific region.
Dr. Fu-Kuo Liu Editor Strategic VisionJust days after the Pentagon released an extensive report on its assessment of the island-building strategy and aims of the People’s Republic of China (PRC) in the South China Sea (SCS), US Marine Gen. Robert Neller, commandant of the Marine Corps, upped the ante when he issued a statement calling out “certain nations” for promoting their own interests in the disputed waters, and doing so by carefully stopping just short of sparking conflict. The annual report to Congress titled “Military and Security Developments involving the People’s Republic of China 2016” pointed out that China had reclaimed approximately 3,200 acres in the South
China Sea outcroppings, reefs, and atolls. Moreover, it was asserted in the May 13 report prepared by the US Defense Department that the leadership in Beijing is perfectly aware of the increasing regional tensions it is engendering through its aggressive prosecution of its territorial claims.
In his statement, seemingly targeted directly at Beijing, Neller vowed that the United States would continue to support international law in the region, as well as continue its efforts to build trust with AsiaPacific nations. “We are a nation of laws, we go out and do what we do to support international law,” Neller was quoted in the media as saying.
While the trust-building referred to by Neller is taking place among Asia-Pacific nations that feel threatened by Beijing’s recent aggressiveness, China perceives American actions as an attempt to stem its rightful rise and encircle it, thereby constraining Chinese growth. Thus Chinese officials generally interpret such statements as clear warnings.
Speaking at a press conference in Beijing May 19, Liu Zhenmin, vice minister of the Ministry of Foreign Affairs, issued a counter warning: The United States must refrain from provoking China in the South China Sea lest it call down retaliatory actions. “The Chinese people do not want to have war, so we will be opposed to the United States if it stirs up any conflict,” Liu said, adding, “Of course, if the Korean War or Vietnam War are replayed, then we will have to defend ourselves.”
While such statements by either side are received by the other as ominous warnings, it is clear that the region is becoming polarized, with China and its allies on one side and the United States and its allies on the other. This polarization, moreover, is nothing
new: it began with the end of Beijing’s “good neighbor” charm offensive, and with the US Pivot to Asia.
American re-entry into the region must be seen for what it was: the beginning of a struggle for influence in which the prize is the role of economic and military protector to the region. For the past 80 years, that role has been America’s, but China is rising and aims to take its place.
In the long-term, a confrontation—not necessarily a conventional military one—between the two giants is inevitable: America will not give up its vital interests in the region any more than China will back down now that its long, patient years of economic and military growth are finally reaching a stage that will allow it to assume the role of regional superpower.
Sea power has always been the cornerstone of America’s global dominance. This is true not only of the uncontested martial supremacy of the US Navy, but of the civilian use of the sea lines of communication (SLOC) facilitating international trade that the Navy safeguards. Since the defeat of Japan in the Second World War, Washington has enjoyed undisputed primacy in the Asia Pacific. It maintained this position throughout the Cold War by forming strong alliances with countries such as Japan, the
Republic of Korea (ROK), Thailand, the Philippines, and Indonesia, and was thus able to contain the expansion of the Soviet Union and PRC.
This influence declined somewhat after the Vietnam War, but the fall of the Soviet Union and the end of the Cold War in the early 1990s saw the disappearance of any potential challengers to American supremacy, and the United States essentially put oversight of the region’s affairs in the hands of Japan. After the events of September 11, 2001, America turned its attention and energies almost exclusively to the Middle East. Although it continued to support its Asian allies, most of its regional activities involved efforts to root out Islamist militant groups, such as Abu Sayyaf, Jemaah Islamiyah, and others operating mostly in the southern Philippines, Thailand, and Indonesia. On the whole, America was too preoccupied with the wars in Iraq and Afghanistan to devote much attention to developments in the Asia Pacific.
The starting point for American re-engagement in the region is generally seen to have been the February 2009 trip by Secretary of State Hillary Clinton to Indonesia, Japan, China, and South Korea. It signalled the intention of the administration of President
Barack Obama to return to Asia as a full partner in regional development and to safeguard America’s traditional interests: the free flow of commerce and trade through the vital SLOCs.
Foreign relations have never been Obama’s strong suit, but the administration has recently showed uncharacteristic spine by refusing to back down from Chinese bullying in the South China Sea. Declarations to the effect that the peaceful resolution of regional disputes and freedom of navigation are core interests of America have done more than show that America would refuse to kowtow to Beijing: they demonstrate to the entire region that Washington was not going to let China run roughshod over the established norms of international diplomacy. In so doing, they reinforced the American intention of returning to the region in its old role of patron and protector.
This no doubt strikes a sour chord in Beijing. It puts at risk the seeming inevitability of China’s assumption of the mantle of avuncular authority in the region and positions the two powers in opposing roles, creating the conditions for a regional cold war. Today, regional actors are increasingly being put in the position of choosing one camp or another based on which op-
tion, either America or China, they perceive as being most likely and capable of best serving their interests. It is not so much a situation in which nations are being asked to “take sides” but one in which they must choose which vision of the region’s future they would prefer to see grow to fruition.
Despite flirting with anti-Americanism in the recent past—which is always a popular rhetorical position for politicians to adopt in order to get elected to public office—the governments of South Korea and Japan have recently made their alliance with America very clear. In contrast, the Democratic People’s Republic of Korea (DPRK) remains China’s staunchest ally, and the nation that arguably relies most heavily on the patronage of the Middle Kingdom. China provides 90 percent of North Korea’s energy, 80 percent of its consumer goods imports, and almost half of its food imports.
America, meanwhile, is making unprecedented headway in forging closer ties with erstwhile enemy Vietnam, as exemplified by the Obama visit to Hanoi and Ho Chi Minh City. In contrast, the Philippines, which like Vietnam sees itself as being on the front lines of any potential SCS conflict with China, has adopted a bandwagoning strategy recently due largely to the election of Rodrigo Duterte as president. Duterte has signaled his intention to pursue closer ties to China, and to that end has announced that he would end joint military exercises with the United States.
Other nations fearful of China seizing hegemony on the South China Sea have shifted into a closer US orbit in recent months, including Indonesia and India. Moreover, the seeds of a regional security alliance (as opposed to the American web of bilateral alliances) may be beginning to grow, as seen in the recent announcement that Japan would be transferring military technology, including up to five TC-90
aircraft and ten high-speed, long-endurance patrol vessels, to the Philippines.
If this trend continues, the region can expect to see a stronger US Navy presence with far more military maneuvers between the United States and its regional allies. After the events of recent years, Washington
“The interests of China and of the UnitedStatesaresimplytoodivergent toaccommodatemuchinthewayof aconstructivepartnership.”
should have come to the realization that China does not desire the title of Responsible International Stakeholder, and that continuing to seek Beijing’s help to rein in North Korea, for example, will yield few positive results. Washington is, by some accounts, already arriving at a more realistic view of China’s motives, rather than looking at them through the rose-colored glasses that have been employed by the State Department and other beltway China experts for decades.
Indeed, Washington’s more realistic view of China is little more than a catch-up with many of the nations in the region, especially the smaller nations, which have seen for decades what China was becoming but which were powerless to do anything about it. Washington and the Western powers essentially let China rise in the hopes that it would grow into the role of responsible partner: Fifteen years ago, the talk in Western business and diplomatic circles was of “congagement” and how greater economic integration with China would lead to democratization and respect for human rights in that country. Today, noone even pretends to believe that anymore.
The interests of China and of the United States are simply too divergent to accommodate much in the way of a constructive partnership. Although Washington will continue to engage China wholeheartedly in matters of trade and investment, there
will be a tacit acceptance that on security issues, the two powers are at odds. Indeed, as the two titans struggle for influence in the region, China will in all likelihood continue its hard-line stance on territorial issues and further clashes, at least diplomatic, will take place in the coming years. As pointed out by Gen. Neller, these clashes will fall short of sparking a full-on exchange of hostilities: rather, they will take the shape of economic measures, import and export restrictions, cyber attacks by state-sponsored hackers, the use of nationalistic fervor to demonstrate popular discontent, and other multidimensional means of what has been called “unrestricted warfare” in China.
What policy implications do these realities hold for Taiwan as its new government takes the reins in Taipei? Now that the stage of China’s charm offensive is over and the more assertive phase has well underway, the nations that will rally around China will be those, like North Korea, that do not share the classical liberal ideals of democracy and civil rights.
In contrast, those who join the American camp will be the ones, like Japan and South Korea, that value such concepts. Clearly Taiwan stands on the side of democracy, political liberty, and respect for human rights. This dichotomous dynamic will act as a feedback loop, further radicalizing the two camps along politico-ideological lines, making it progressively harder for countries like Taiwan to continue to avoid taking sides.
The end result of this polarization will be the political bifurcation of the region and the rise of a regional cold-war scenario, with America on one side and China on the other. Such a regional split carries with it the risk of going global, depending how events play out in Russia and Europe. Many in the developing world are already in the Chinese—or more accurately, the anti-American—camp, and Russia has, under Vladimir Putin, been inching back towards a redrawing of the Soviet Union map. However these events develop, one thing does appear certain: China may just achieve the superpower status it desires. What remains to be seen is what sort of master Beijing would make. n
Disputes in the South China Sea (SCS) have been escalating since an arbitration case against China’s maritime claims was initiated by the Philippines in 2013. The legal status of the U-shaped line (also known as the nine-dash line), island-building activities by the People’s Republic of China (PRC), and the US Navy’s SCS Freedom of Navigation operations have all come into question in recent years. There is no denying that tensions are growing amid intransigence on the part of both Beijing and Washington, causing other, smaller nations in the region grave concern. In the face of these
rising tensions, Taipei stands to offer a unique way to move forward through cooperation and peace, and could position itself as a leader in solving the multiple overlapping territorial claims in this hotly contested sea.
The U-shaped line delineates the scope of what Beijing believes to be Chinese territorial waters in the South China Sea. It first appeared in December, 1947, on a map produced by the Republic of China (ROC), which shortly thereafter moved its capital to Taipei. Moreover, it is common knowledge that the ROC and China share similar sovereignty claims. After China
Mu-Lan Kao is an attorney-at-law and a lecturer with the College of Law at Ming Chuan University. She is currently a PhD candidate with the Institute of the Law of the Sea at Taiwan Ocean University. She can be reached at kaomulan@hotmail.com
objected to the Malaysian and Vietnamese joint submissions by submitting two notes verbales to the UN Secretary General on 7 May, 2009, Taipei’s position has drawn significant attention from the United States and abroad, with some scholars considering the status of the U-shaped line to be laughable or ambiguous. In light of these challenges, the ROC government faces a tall order in clarifying the meaning of the U-shaped line. Thus, any response, actions or clarification on the SCS disputes asserted by Taipei would be a high-profile issue.
Officially, the ROC government is upholding the basic principles of safeguarding sovereignty, shelving disputes, pursuing peace and reciprocity, and promoting joint development, and is willing to jointly develop resources with other countries with SCS claims. Taipei seeks to participate in related dialogue and cooperation mechanisms so as to resolve disputes through peaceful means, safeguard regional peace and stability, and promote regional development. Taipei has also called on countries in the SCS to respect the principles and spirit of all relevant international laws, including the Charter of the United Nations and the United Nations Convention on the Law of the Sea (UNCLOS), and to refrain from adopting unilateral measures that might upset the peace and stability of the region.
In order to provide a pragmatic and forward-looking course of action before a major conflict breaks out, former President Ma Ying-jeou tried to thread the needle by announcing his vision for a South China Sea Peace Initiative on 26 May, 2015, and proposed the pursuit of joint development of natural resources in the SCS. The peace initiative was based on consultations conducted on the basis of equality and reciprocity. It would set up coordination and cooperation mechanisms for such non-traditional security issues
as environmental protection, scientific research, maritime crime fighting, and humanitarian assistance and disaster relief. Taipei appears willing to work with the other claimants to implement the content and spirit of the SCS Peace Initiative for resolving disputes and jointly developing resources.
Despite the US position that Ma’s visit to Taiping Island was extremely unhelpful to regional stability,
the Ma administration sought to reduce tensions and promote peace and stability in the SCS by unveiling the South China Sea Peace Initiative Roadmap before a group of scholars and officials during a visit to Taiping Island on 28 January, 2016. The roadmap was based on a framework of “three yeses, three no’s, two essential elaborations, and three phases of progress,” as listed below:
1. “Yes” to cooperation, “no” to confrontation
2. “Yes” to sharing, “no” to monopolizing
3. “Yes” to pragmatism, “no” to intransigence
Beyond that, “In the short term, we need to jointly shelve disputes. In the mid-term, we will push for integrated planning. In the long term, as part of overall integrated planning, we look forward to the establishment of a mechanism for zonal development. Through bilateral or multilateral cooperation, parties concerned could designate specific maritime areas for provisional cooperation and development, with the view to establishing a joint management and monitoring mechanism so as to engage in cooperation and development on an area-by-area, stage-bystage basis,” said Ma. In this way, mutually beneficial results can be achieved. That is to say, Taipei would have the latitude to take more positive action on the SCS disputes in the future.
“Taipei seeks to participate in related dialogueandcooperationmechanisms soastoresolvedisputesthroughpeaceful means.”
Taiping Island, also known as Itu Aba, is the largest of the naturally formed Spratly Islands, and is an inherent part of ROC territory. Historical documents indicate that the Nationalist government took over the island on 12 December, 1946 by dispatching a contingent of ROC marines to occupy and thereby establish sovereignty over the island, which was renamed Taiping—meaning “peace” in Chinese—in honor of the ship that ferried the marines there. The island not only possesses an ideal geographic location but also has provoked much discussion, particularly from the Philippines’ legal team which claimed, during the second oral hearing in the Sino-Philippine arbitration case held in November 2015, that there is no drinkable water or topsoil on the island.
With the goal of reducing tensions in the SCS, in 2000, the administration of former ROC President Lee Teng-hui replaced the military personnel stationed on Taiping with members of the ROC Coast
Guard Administration. While this action was largely ignored and underappreciated by other claimants, it served to demonstrate Taipei’s opposition to the militarization of the SCS, and painted China in a more militaristic light. In addition to the military aspects of the garrison, the ROC government remains committed to making Taiping Island an ecologically friendly, carbon-neutral island that can serve as a base for peace and rescue operations. Compared to the militarism displayed by China’s actions in the SCS, Taipei’s approach should serve as an example worthy of emulation by other claimant parties in the SCS.
The aforementioned points suggest that the ROC is committed to fulfilling its international obligations and actively serving as a peacemaker and provider of humanitarian aid, so as to truly transform the SCS into a sea of peace and cooperation. Taipei has consistently adhered to the principles of peaceful settlement of international disputes and freedom of navigation and overflight as stipulated in the relevant international law and regulations. Above all, the ROC government has defended Taiping Island and other is-
lands without getting into military conflict with other nations. Consequently, Taipei should earn recognition for not interfering with other nations’ freedom of navigation or overflight in the SCS.
To review the past and presage the future, since Taipei has received increasing calls from foreign countries to clarify its intentions with respect to the legal status of the U-shaped line, especially now that the Democratic Progressive Party (DPP) has won the 2016 presidential election, ROC President Tsai Ingwen should seriously consider her position, and take more positive actions on SCS issues. With the goal of gaining participation in regional collaboration, former President Ma utilized the South China Sea Peace Initiative and the attendant roadmap to call on other parties to jointly ensure peace and stability in the SCS, as well as conserve and develop resources in the region.
In response to the SCS award made by the Arbitral Tribunal of the Permanent Court of Arbitration (PCA) on July 12, the ROC government has reiterated its position of defending its national interests and urged that disputes in the SCS be resolved peacefully through multilateral negotiations conducted on the basis of equality. As overlapping claims in the SCS involve international law and politics, President Tsai proposed four principles and five actions during her first-ever National Security Council meeting held
on July 19. The ROC will take actions based on four principles:
1. All disputes should be resolved peacefully in accordance with international law and UNCLOS.
2. Taipei must be included in any multilateral dispute settlement mechanisms.
“As the Chinese proverb warns, ‘the rising wind forebodes the coming storm.’”
3. Other relevant parties are obligated to ensure freedom of aviation and navigation in the SCS.
4. The ROC calls for other relevant parties to set aside differences and resolve disputes through joint development, and remains committed to promoting regional stability and protecting maritime resources. Furthermore, the ROC government will also likely take a number of actions to support its position. First, it will step up patrol missions to safeguard the rights and safety of Taipei’s fishermen operating in the SCS. Second, the Ministry of Foreign Affairs (MOFA) will try to enhance multilateral dialogue with other relevant parties to seek collaboration and consensus. Third, the Ministry of Science and Technology (MOST) and related agencies will make arrangements to invite international scholars to Taiping Island to conduct scientific research on climate change, seismology, geology, and meteorology.
Fourth, MOFA will collaborate with international organizations to develop Taiping Island into a base for providing humanitarian aid and supplies. Fifth, the government will encourage more local talent to
study maritime law so as to strengthen the nation’s preparedness regarding international legal issues.
It is important to note that Interior Minister Yeh Jiunn-rong led a team of officials and researchers to Taiping Island on August 16. According to Yeh, the trip was part of preparations to transform Taiping Island into a hub of scientific investigation on climate change and marine ecology. Yeh also pointed out that the Ministry of the Interior is working with the MOST and other agencies to share data and seek international collaboration on various projects. This is significant as it indicates that the Tsai administration is steadfast in its position and committed to promoting regional stability in the SCS.
As the Chinese proverb warns, “the rising wind forebodes the coming storm.” It seems that the situation in the SCS will likely become more complicated in the future. It is hoped that all the parties involved will continue to engage in dialogue until a final solution can be reached. As mentioned above, Taipei can play a key role in the SCS disputes now that the PCA has rendered its judgment. n
For all the criticism the President Ma Yingjeou administration received for its handling of cross-strait relations, the economy, and other issues, it played its cards remarkably well in the context of the South China Sea maritime territorial disputes. Its multifaceted approach included (1) a reassertion of its claims based on the map issued by the ROC government in 1947; (2) strategic ambiguity in terms of its entitlements within the map’s eleven-dash line; (3) commitment to abiding by the principles of international maritime law, including UNCLOS; (4) emphasis on its role as a peacemaker
in the region and concrete policy actions to support its rhetoric and proposals; (5) rejection of the international arbitration case initiated by the Philippines, in which Taipei was unable to formally participate; and (6) an increasingly vociferous push to demonstrate and publicize that, from both scientific and legal perspectives, Itu Aba (Taiping) Island is indeed an island in response to Manila’s claims to the contrary and an arbitral tribunal’s conclusion on the matter.
Following her landslide victory on January 16, 2016, and inauguration on May 20, 2016, President Tsai Ing-wen has maintained major aspects of this suc-
cessful policy approach. However, the Award issued on July 12, 2016, by the Tribunal constituted under UNCLOS in the Philippines v. China arbitration case took many Taiwanese lawmakers and international legal scholars by surprise, not because it generally concurred with the Philippines’ arguments but because of the extent to which the arbitrators offered legal conclusions that exceeded consideration of the fifteen submissions made by the Philippine government and its legal team. Taiwan has been put in an uncomfortable situation where it must not only maintain and safeguard its sovereignty claims as all other claimants do but also cope with the reality that the status of Itu Aba (Taiping) Island as an island, which it understands as based on historical, legal, geographical, and geological facts, has been undermined by the content of the Award.
Nevertheless, both the Ma and Tsai administrations have remained steadfast about Taiwan’s commitment to respecting international law, emphasized their support for shelving disputes and engaging in multilateral cooperation, and sought to position Taiwan as a worthwhile diplomatic partner for rival claimants and major stakeholders in the South China Sea. These actors would do well to embrace its inclusive approach while the opportunity still exists and consider how the Taiwan factor could benefit their own national interests.
Taipei’s policy approach to maritime territorial disputes has, in many cases, been warmly welcomed by the international community. The East China Sea Peace Initiative, for example, resulted in the signing of the Taiwan-Japan Fisheries Agreement on April 10, 2013, in which both countries have agreed upon an area where the fishing operations of the other party will not be interfered with. Through the agreement, they have also been able build mutual trust
and promote themselves as responsible stakeholders in the international system. The South China Sea Peace Initiative was more quietly applauded by relevant actors with the US Department of State immediately expressing its appreciation for the plan but rival claimants opting not to respond publicly. For the foreseeable future, the proposal will likely remain on the table if not in name then at least in concept. On November 5, 2015, Taipei and Manila also signed the Agreement Concerning the Facilitation of Cooperation on Law Enforcement in Fisheries Matters to ensure that the rights of fishermen operating legally are guaranteed and maritime interactions between the two parties are managed in accordance with agreed upon procedures.
In other cases, the ROC government’s efforts to map out a mutually beneficial path towards regional cooperation in the midst of the disputes have been overlooked, and concrete policy actions by other actors that would bolster Taipei’s peacemaking efforts are lacking. This is primarily a result of Taiwan’s diplomatic alienation. For nearly fifty years, Taiwan has endured despite its unique diplomatic status of de facto statehood without United Nations membership. Despite this obstacle – or perhaps because of it – Taiwan has developed a vibrant democratic political system, an advanced economy, a capable military, and a culture to call its own. Rival claimants’ hesitancy to embrace Taipei’s policy approach may also be a byproduct of the politically sensitive nature of incompatible territorial claims. Yet from multiple perspectives, one can identify powerful incentives for increased engagement with Taiwan and, on the flip side, major risks involved in allowing the opportunity to drift out of reach.
In formulating their South China Sea policy, ROC policymakers could have placed the full weight of their efforts on reasserting territorial sovereignty claims and providing hard evidence and hard power to back those claims. However, both the previ-
ous and current administrations have instead forged ahead with a more inclusive policy approach that understandably receives more applause than it does criticism. If rival claimants and major stakeholders can muster the political courage to overcome their reticence about engaging with Taipei, they will position themselves to reap major benefits along the path towards constructive dispute management while avoiding the risks inherent to alternative approaches. Considering the Taiwan factor and embracing key tenets of its policy approach is important because (1) the “shelve disputes, promote cooperation” framework is palatable for both domestic and international audiences, (2) its near-term feasibility is greater than that of the Code of Conduct in the South China Sea, (3) Taipei has unparalleled experience navigating sensitive sovereignty issues, (4) evidence supporting its claims to its occupied features (i.e., Itu Aba Island, Zhongzhou Reef, and Pratas Islands) is comparatively difficult to refute, (5) its civilian-oriented infrastructural development on these features lends credence to the sincerity of its political rhetoric, (6) it is well equipped to participate in joint operations at sea, and
(7) unwillingness to engage with Taipei risks it drifting towards Beijing if the associated benefits prove to outweigh those of its current open-door approach. Through its South China Sea Peace Initiative, the Ma administration proposed a “shelve disputes, promote cooperation” framework as a roadmap for dealing with the disputes in a way that would be mutually beneficial for those involved. Because it cautiously avoids touching upon the underlying sovereignty issues, the initiative is palatable for other claimants’ domestic audiences and also for the international community. Moreover, it is an approach that demonstrates respect for international law without relying on the divisive issue of compulsory international arbitration that has bred anxiety in the region since 2013. Regardless of whether or not there are immediate economic dividends from joint resource exploitation, the process of diplomatic engagement itself would be beneficial for involved parties in that it would provide a focus for dispute management and promote those countries’ international images as responsible stakeholders in the international system as it already has for Taiwan.
Moreover, the near-term feasibility of such diplomatic engagement is greater than that of the Code of Conduct in the South China Sea (COC). The proposed COC has fatal flaws in that it excludes a key claimant and other major stakeholders; it pits ASEAN countries against China, whose interests may be served better by playing lip service to the agreement than actually finalizing it; and its success lies in a difficult to achieve consensus followed by the shaky assumption that a legally-binding document without protocol for enforcement would be respected by all parties.
Because of the many decades that the ROC government has spent cautiously managing its relationship with the PRC and diplomatic interactions with other countries, it could be argued that Taipei has more experience navigating sensitive sovereignty issues than any other claimant. Cross-strait relations deeply affect every aspect of Taiwan’s foreign policy, yet it has demonstrated that it has the diplomatic finesse to make the best of even the most precarious situations. Its relations with the US, successful engagement with Japan in the East China Sea, and agreement with the Philippines in 2015 also lend credence to the notion that, when it comes to territorial sovereignty disputes, Taipei’s political leadership has the capacity to set the stage for step-by-step diplomatic engagement and the improvement of bilateral and multilateral relations.
As rival claimants attempt to bolster their claims to maritime features in the South China Sea by developing their infrastructure and defense capabilities and selectively highlighting the historical evidence that supports their claims, the evidence supporting the ROC’s claims to its occupied features (i.e., Itu Aba Island, Zhongzhou Reef, and Pratas Islands) is more difficult than that of others to refute. Itu Aba (Taiping) Island is the largest feature in the Spratly Islands, the only one with a source of fresh water, and – at least prior to the Award – often considered to be the only one that could qualify as an island under
the provisions of Article 121 of UNCLOS, potentially entitling it to a 200-nautical-mile exclusive economic zone. It has also been continuously occupied by the ROC since 1956, longer than any of the other maritime features in the Spratly Islands. This provides yet another incentive for rival claimants to strengthen cooperation with Taiwan in that, in a sense, Taiwan
could be making greater concessions in the bargain than its counterparts would.
As with all claimants, Taipei has consistently asserted in its political rhetoric that the development of its maritime features is primarily for civilian purposes. However, in contrast to several rival claimants, it has backed up these assertions with concrete policy actions. Although Itu Aba (Taiping) Island has sufficient land area for defensive infrastructure, the ROC government has kept it to a minimum, instead focusing on maintaining existing agricultural, cultural, medical, and scientific research facilities and building a lighthouse for navigation purposes and photovoltaic power generation systems to supply renewable energy. It has also refrained from large-scale land reclamation activities in the reconstruction of its wharf. In the Pratas Islands, it has established the Dongsha Atoll National Park and marine research station for environmental and other scientific research. The ROC government’s civilian-oriented infrastructural development on these features lends further credence to the sincerity of its political rhetoric, making Taiwan a suitable partner for maritime cooperation because it has a history of standing by its commitments.
Should rival countries or major stakeholders seek security cooperation in the South China Sea, the
“Should rival countries or major stakeholdersseeksecuritycooperationintheSouthChinaSea,theROC Navyiswellequippedtoparticipate injointmaritimemilitaryexercises.”
ROC Navy is well equipped to participate in joint maritime military exercises. Joint exercises not only have the benefit of contributing to participants’ military readiness but also serve to replace animosity with camaraderie between military personnel and prepare armed forces for engaging in humanitarian and maritime rescue operations. Such exercises also come in many forms, so willing parties can begin with small-scale bilateral drills and move towards larger-scale multilateral ones.
In pursuit of its national interests and regional stability, the ROC’s previous and current administrations have offered a roadmap for cooperation on maritime issues. The proposals are based on a “shelve disputes, promote cooperation” framework that is based on the “easy issues first, hard issues later” models that have already proven successful in managing crossstrait relations and territorial disputes with Japan. The international community has responded positively in some cases and overlooked its gestures in others, but to date, responses that would bolster these efforts to promote regional stability and cooperation have been
lacking. For the reasons outlined above, embracing Taipei’s current willingness to engage diplomatically, economically, and militarily would serve countries’ national interests and benefit the region. Conversely, sustained unwillingness to engage with Taipei risks it drifting towards Beijing if the associated benefits of doing so prove to outweigh those of its current opendoor approach although such a scenario may not be particularly likely under a DPP administration. As advantageous as greater engagement with Taiwan’s policy approach could be, the Taiwan factor remains an inherently thorny issue for policymakers, and they will have to tread carefully and take a piecemeal approach to cooperation. Fortunately, there are opportunities on the table for doing so, the ROC has over half a century of experience successfully managing the most difficult of sovereignty disputes, and there is little doubt that partnerships between Taiwan and actors with the political courage to cooperate could make the best of Taiwan’s proactive role in attempting to constructively manage the contentious South China Sea maritime territorial disputes. n
When looked at through the lens of the One-China Principle, the legal status of Itu Aba (Taiping) Island has a significant impact on the Philippines’ submissions in the recent South China Sea Arbitration in the Hague. Nine of the 15 submissions (Submissions No. 4, 5, 6, 7, 8, 9, 11, 12, and 14) would potentially be damaged if Taiping Island were established as having entitlement to an exclusive economic zone (EEZ) and continental shelf (CS).
The Arbitral Tribunal, through the Permanent
Court of Arbitration (PCA) as its registry, released its award in the Philippines v. China arbitration case on July 12, 2016, concluding that, among other issues, Taiping Island and several other features are incapable “of sustaining human habitation or an economic life of their own, [and] the effect of Article 121(3) is that such features shall have no exclusive economic zone or continental shelf.” However, this decision is inconclusive and leaves the question of the legal status of Taiping Island far from solved. On the contrary, the decision will further intensify the debate
over Taiping Island’s status with larger implications for international practice with respect to Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS) as it relates to small sea features around the world.
During the arbitral proceedings, after a certain internal debate, the Philippine side chose to exclude Taiping Island from the 15 submissions that it requested the tribunal consider in issuing an award, but Manila nevertheless included arguments regarding Taiping Island’s legal status in its memorial and oral arguments. In a position paper published on 7 December, 2014, China criticized the absence of the island in the submissions, stating that “the Philippines has deliberately excluded from the category of the maritime features ‘occupied or controlled by China’ the largest island in the Nansha islands, Taiping Dao, which is currently controlled by the Taiwan authorities of China.”
It must be noted here that the position paper did not raise the issue of Taiping Island to argue for a
200-nm exclusive economic zone (EEZ) entitlement. Rather, Beijing criticized the Philippines for “a grave violation of the One-China Principle and an infringement of China’s sovereignty and territorial integrity” for not adding Taiping Island into its submissions which included all the rest of the nine China-occupied Spratly features.
During the hearing, the Philippines not only clarified its position on the One-China Principle but also presented in detail its argument in regards to the legal
status of Taiping Island. The Philippines explicitly reiterated its position, indicating that “there is only one China, and that it is the People’s Republic of China” and called Taiwan “a non-state entity.”
On Taiping Island’s legal status, the Philippines held that, “because Itu Aba is not capable of sustaining human habitation or economic life of its own … it is a ‘rock’ under Article 121(3), based on the plain mean-
“Manila hoped to create a legal narrativeinwhichTaipingIslandwas considered to be a rock without endangeringitsowncorearguments.”
ing of the text, even without recourse to its object and purpose.” A significant amount of time was dedicated to substantiating the arguments regarding Taiping Island’s legal status during the arbitral proceedings, in which the Philippines often selectively referred to data to attempt to demonstrate that Taiping Island was in fact a rock not entitled to a 200-nm EEZ.
Factual evidence suggests otherwise as far as the sustainability of human habitation and economic activities are concerned. On the question of human habitation on Taiping Island, various official statements, including one by the ROC’s Ministry of Foreign Affairs, held that “Taiping Island (Itu Aba) has groundwater wells, [and] natural vegetation.” Freshwater on Taiping Island has been available since 1992 when “a water catchment, reservoirs and other facilities were constructed.”
Moreover, a recent study was released by the ROC Council of Agriculture which organized a trip to Taiping Island in an effort to provide additional first-hand accounts of evidence supporting Taiping
Island’s status as an island under international law. Joined by experts from the scientific and legal communities, the two-day investigation revealed further details and photographic evidence that appeared to effectively invalidate the Philippines’ arguments to the tribunal about Taiping Island.
On the question of water quality, the on-site analysis showed that “the water on Taiping Island is freshwater that can be used as drinking water, and is of higher quality than the groundwater found on Penghu island.” The analysis further demonstrated that “soil on the island is naturally formed and supports indigenous vegetation as well as agricultural crops,” which demonstrates that Taiping Island is able to “sustain human habitation and economic life of its own.”
The conditions outlined in Article 121 (3), which states that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf,” suggest that, if one of the conditions were met, there would be no need for the other condition to be present. Therefore, lack of human habitation, if continuous official occupation since 1956 were ignored, did not change Taiping Island’s status so long as it was well-
established that it could potentially support it.
It has been clear from the start of the arbitration case that the question of Taiping Island would have a fundamental impact on the arguments laid out by the Philippines. For that reason, the Philippine side avoided including it in the original submissions and instead included it extensively in its memorial and oral arguments. In doing so, Manila hoped to create a legal narrative in which Taiping Island was considered to be a rock without endangering its own core arguments. The potential impact of Taiping Island’s legal status on the Philippines’ submissions encompass three major issue areas:
1. The potential EEZ generated by Taiping Island would encompass eight of the nine features (with the exception of Scarborough Shoal) brought up by Manila in its submissions. Thus, Manila’s argument about their status as rocks or low-tide elevations would be moot because they are covered by the Taiping Island EEZ.
2. Since China’s build-up activities on the eight features mentioned by the Philippines take place within the EEZ and CS that could be generated by Taiping
Island, as per the One-China Principle, they are within the law, as China has the exclusive rights to construct artificial islands, installations and structures on the sea features in their own EEZ and CS under Articles 60 and 80 of UNCLOS.
3. China’s maritime law enforcement activities, too, occur within 200 nm of Taiping Island, which means that China has the rights, jurisdiction, and duties in the area afforded to it under Article 56 of UNCLOS. Furthermore, although Scarborough Shoal falls outside the EEZ generated by Taiping Island, it still generates 12-nm territorial waters; thus, the argument that China has invaded the Philippines’ EEZ or CS would be made invalid.
It is obvious that the question of Taiping Island will occupy a greater space and weight in arguing against the tribunal’s conclusions in its award in the postarbitration regional context, and this can already be
Former President Ma Ying-jeou enjoys a glass of water from Taiping Island’s natural spring water, making a point on the self-sustainability of the island.
“The tribunal’s decisions will create furthercomplicationsforstatessuch asJapanandtheUnitedStates.”
seen in various official statements released by Beijing which now frequently refer to Taiping Island. Thus, the tribunal’s conclusions on the issue of Taiping Island’s legal status seem to have further complicated the situation rather than providing answers or solutions because of the island’s potential implications for the arguments laid out by the Philippines and endorsed by the tribunal in the strongest terms. There is little reason to think that the result of the arbitration case will be different this time.
It is partly for these reasons that regional and global reactions to the award have been relatively muted so far. The European Union, for instance, was slow to release a statement on the issue despite pressure from the United States. In the meantime, the International Court of Justice (ICJ), a UN institution, released a statement stressing that it had no connection to the Arbitral Tribunal constituted under UNCLOS with the PCA as registry. The ICJ statement read that “the
award in the South China Sea Arbitration was issued by an Arbitral Tribunal acting with the secretarial assistance of the PCA. The ICJ, which is a totally distinct institution, has had no involvement in the above mentioned case.” Finally, ASEAN abstained from releasing a joint statement on the award and instead expressed concern about recent developments without naming any country.
Moving forward, questions regarding Taiping Island’s legal status will persist and debate will intensify following the award. The tribunal’s decisions will create further complications for states such as Japan and the United States in administering sea features smaller than Taiping Island as far as Article 121 of UNCLOS is concerned. It now appears that the tribunal’s conclusions regarding Taiping Island’s legal status as a rock under UNCLOS have reduced the effectiveness and perceived validity of the award. In this sense, the award will not make progress toward a resolution of the disputes but instead solidify the parties’ respective positions regarding their South China Sea claims. n
The groundbreaking 12 July, 2016 verdict of the Arbitral Tribunal of the permanent court of arbitration (PCA) at the Hague, ruling with the Philippines in its maritime dispute against China, will in all probability make the already sensitive South China Sea (SCS) region a little more unstable. Even though the Chinese called the verdict “null and void,” it managed to seriously erode Beijing’s image as a responsible member of the international community and member of a rule-based system aspiring to become a primary power in the emerging world order.
While experts debate the nuances of the binding verdict and rue its lack of enforceability, it is important to find a way to solve the SCS problem, or at least
stabilize it, to ensure that the massive trade passing through the area is unhindered and that freedom of navigation remains unfettered. There is a dire necessity to seek an amicable and peaceful way ahead without loss of further face for any of the countries involved.
Though rejected by China, the tribunal’s award has severely restricted Beijing’s strategic maneuverability, given that China’s actions over the past few years have upped the ante in the SCS region. Public discourse on the issue has acquired jingoistic dimensions and this has placed barriers against the Chinese leadership making any major conciliatory moves. Whether or not to press forward aggressively with their sea claims is a Hobson’s choice for China, as
conciliation would translate domestically to concession. Externally, analysts will be dissecting and interpreting each of Beijing’s moves in the SCS and interpret its response to the ruling as a break from established international legal norms.
The following policy recommendations, some of which have been made earlier, should be adopted by all claimant countries to lower the prevailing tensions in the region and reduce the current trust deficit without incurring loss of face for any of the countries involved. These recommendations include collaboration on energy resources, agreements on fishing rights, cooperation on regional law enforcement, and notification of activities. Moreover, equally important are collaboration on environmental protection, finalize a SCS code of conduct (CoC), and increasing the number of freedom of navigation operations (FONOPs) being conducted in the sea.
Collaboration is important in the Development of energy resources. One of the major issues of contention in the SCS has been the potential of vast energy deposits in the area, though the US Energy Information Administration estimates that most of the energy reserves under the sea lie in areas that are not under dispute.
Hence, a formula to jointly harvest and share these resources may assuage the feelings of most countries. There exist numerous examples of such cooperative efforts in disputed areas that have been undertaken without prejudice to claims of sovereignty, and these examples can be used as role models.
Since there are many external powers like India and Russia that have invested heavily in exploration of SCS resources, it would be prudent to involve them as stake holders for the creation of a consortium for exploration and exploitation of resources in the region. This would not only ensure the incorporation of high technology in this field, but also ensure that the process of development and exploitation is fair and peaceful. The flip side is that it would become
difficult for claimant states to act unilaterally with so many stakeholders involved. Thus, increased international participation has the potential to stabilize the situation.
The signing of agreements on fishing is also important. The rapidly declining fish stocks in the region are a matter of considerable concern for all stakeholders, especially the fishermen whose livelihood depends on fishing. Fishing rights in disputed areas has been one of the major causes of clashes between contending states, which has led to conflict escalation. The vio-
lation of fishing rights by China was also mentioned in the verdict by the Arbitral Tribunal. Hence, there exists the necessity to have agreements on fishing seasons, maximum catch limits, prohibition on the capture of certain marine species, and protection from unilateral arrests. these are among the neutral issues that may facilitate dialogue and also help in building mutual trust and confidence.
There must be collaboration between regional law enforcement agencies. A major source of tension in the region has been the frequent arrest of fishermen caught poaching in other countries’ sovereign areas. With fishermen following shoals of fish that disregard political boundaries, such arrests of fishermen are destabilizing, as they often become pawns to a larger game of enforcing sovereign and territorial rights.
The vast disparities in the capabilities of such law enforcement agencies and their thinking processes may prevent closer cooperation between agencies of contending nations. Additionally, the Chinese are prone to using their law enforcements agencies and fishermen as tools for enhancing power-projection
“Amajorsourceoftensionsintheregionhasbeenthefrequentarrestof fishermancaughtpoachinginsovereignareasofcontendingcountries.”
capabilities, sovereignty claims, and fishing rights. In such circumstances it may be difficult for similar agencies of other countries to collaborate for the common good. However, if achieved as envisaged in various China-ASEAN meetings, it would considerably reduce the trust deficit between claimant countries.
Notification of all maritime activity—especially those related to naval and coast guard activity— would serve well as steps towards enhancing confidence amongst the contending states. Likewise joint activities for environmental protection: China has come under sharp criticism for causing environmental degradation, especially in the Spratly Islands where it has created and enlarged artificial islands. This has affected its image as a leading developing country that ostensibly upholds the environmental cause. In an effort to assuage the feeling of other countries, and to show its strong support for the environment, it may be fruitful to back several environmental initiatives in the region.
Vietnamese and Philippine scientists of the Joint Oceanographic Marine Scientific Research Expedition have made recommendations for a
Marine Trans-border Peace Park in the disputed areas in consonance with part IX of UNCLOS. The establishment of an ecological park in the Spratly and Paracel Islands would partially obviate the need for any military build-up in the region, acting as a natural de-escalatory measure. However, previous efforts to expand and include China and Laos in the group failed, leading to the total collapse of the initiative. This idea should be revived, despite the fact that it may well face strong opposition from fishing groups as it would constrain fishing activities of all contenders.
The pace of negotiations over the Code of Conduct (CoC) in the SCS must be enhanced, and the CoC finalized. Since the efficacy of the non-binding Declaration on the Conduct of Parties in the South China Sea (DOC) between ASEAN and China has been ineffectual at best, the Guidelines for Implementation of the DOC concluded after nine long years of discussion. However, strident demands for a legally binding agreement led to the commencement of initial talks and discussions on the formation the CoC with ASEAN. Given the track record
of such negotiations, though, it would be no surprise if talks drag on for a another decade. It is now up to the Chinese to enhance the pace of talks and show the world that the finalization of such an agreement is possible in the spirit of compatibility.
Admittedly, some progress has been made at the 13th ASEAN-China Senior Officials’ Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea and the 18th Joint Working Group Meeting on the Implementation of the DOC held in Manzhouli, Inner Mongolia in August, 2016. However these are just initial steps that require considerable effort and discussion if the final goal is to be achieved.
Finally, given that the tribunal’s ruling declared that none of the Chinese-held features in the Spratly Islands are entitled to an exclusive economic zone, this will probably lead to more US Navy warships traversing these waters in Freedom of Navigation Operations. Even though China may well consider these to be transgressions, any aggressive behavior would prove to be counterproductive.
In order to ensure the success of the previously mentioned measures, it is necessary to adopt some pre-
liminary steps to lower simmering tensions. Regional actors must display an intent to solve the problems through mutual negotiations. The following suggestions should be observed by claimant countries in the region.
First, it is imperative that all parties avoid saber rattling, along with provocative behavior, which has often been the norm in the region. Most of these actions and statements are little more than jingoistic bravado, and are often made for domestic consumption and internal political gain rather than for international audiences. This trend is especially visible in the post verdict era in the Chinese press and needs to be curtailed as the losses from these actions far outweigh the gains. However, sharp responses from other contending states have the potential to escalate the situation as few are willing to back down and be shown in poor light within their own constituencies. Such actions and statements only add to the existing mistrust and tension in the region and a conscious political decision to forgo the same would be a defi-
International journalists arrive at Taiping Island. The purpose of this visit was to increase international awareness of ROC claims in the SCS.nite confidence builder.
Any aggressive posturing, use of force, or excessive portrayal of jingoistic tendencies will needlessly aggravate the situation beyond control. Efforts should be made to ensure that jingoistic fervor does not create a powerful force for national leaders to adopt hard-line positions constraining their decision-making capabilities.
Secondly, adoption of a conciliatory posture would indicate a willingness to solve the problems and would help in building a degree of trust with other nations. Brinkmanship is a strategy that is often resorted to in this region, but it must be avoided as escalation can be swifter with claimant countries emboldened by the recent legal victory, and a China which is desperate to regain its face. Thus assertive behavior or showing force should be avoided as a matter of principle.
If China wishes to be accepted as a responsible member of the international community then the outright snubbing of the rule-based international legal system mandated by United Nations will have grave consequences for the future development of the country and its carefully crafted international image. Beijing’s projection of a peaceful and harmonious
rise has been exposed as a falsity, and even China’s closest allies find it difficult to support it on legally untenable grounds. Hence, Chinese leaders will have to ensure that tensions in the SCS are reduced, and that conciliatory moves are made to display genuine intent. Beijing’s previously established position of only dealing with the SCS issue on bilateral terms with claimant countries needs active reconsideration, as well as sustained efforts at negotiation.
While it would be difficult for China to do a complete U-turn and renege on its sovereignty claims, the verdict has the capability of creating a united ASEAN and thus turning an entire neighborhood against Chinese efforts. This is a strategic situation that China can ill afford to create, notwithstanding its immense clout.
Face-saving is an important aspect of any pragmatic solution to these complex international problems. The aforementioned methods may be adopted to ensure that China not only regains its stature in the eyes of the world, but becomes friendly to all neighboring countries. A genuine spirit of compromise and cooperation is necessary for the all round development of the claimant nations in the SCS. After all, no country can grow alone—not even China. n
