The South China Sea Arbitration decision, issued by the Tribunal in Hague, has been in effect for more than one year; however, discussions about China and other South China Sea claimants’ military or diplomatic responses are still going on. In particular, the international community remains concerned about whether China will comply with the arbitration and how China will further consolidate its control over the maritime features, e.g. through land reclamation efforts at the Scarborough Shoal, militarization in the South China Sea or conclusion of the framework for the Code of Conduct for the South China Sea between China and ASEAN. One of the main legal and political disputes underlying such discussions pertains to China’s historic rights claim, which was adjudicated as inconsistent with the Law of the Sea, within the so-called “Nine-Dash Line.” In spite of being declared as invalid under the Law of the Sea, China still insists upon claiming historical rights in the South China Sea and also does not accept or recognize the arbitration, according to the statement issued after the tribunal’s decision.
Various statements were issued by different agencies under the Tsai administration, including the Presidential Office and the Ministry of Foreign Affairs, with regard to the arbitration. Along with many others others, these statements also indicated that Taiwan would not accept the decision and maintains that it has no legally binding force. Such a response gave rise to US concern over Taiwan’s South China Sea policy position after President Tsai Ing-wen took office. The pressure stemming from this concern was both significant and sensitive, because it was said that President Obama was unsatisfied with former President Ma’s tacit cooperation policy with China during the arbitral proceeding.
However, why was Taiwan involved in the arbitration and why did the US government pay so much attention to Taiwan’s response, given Taiwan was not a party to the proceedings? The most important factor is that the ROC government issued the U-shaped or Eleven-Dash line map in 1947, in which the meaning of the U-shaped line was not explicitly articulated, and which became one of the central legal issues in the arbitration. China calls the line the “Nine-Dash” Line, which is almost identical to the U-shaped line, but with only nine dashes after China concluded two boundary agreements with Vietnam in 2000. Another important factor is whether Taiping Island (Itu Aba) could generate full entitlement to the exclusive economic zone (EEZ) and continental shelf, which concerns part of the Tribunal’s jurisdiction regarding the Philippines’ claims in the arbitration. Hence, US officials and experts from Washington policy circles publicly put pressure on Taiwan to clarify the character and claims of the U-shaped line published in 1947. For example, Daniel Russel, former Assistant Secretary of State for East Asian and Pacific Affairs at the US Department of State, testified before the House of Representatives Committee on Foreign Affairs that under international law, maritime claims in the South China Sea “must be derived from land features,” and that any use of the “Nine-Dash Line” by China to claim maritime rights not based on claimed land areas “would be inconsistent with international law.” In the wake of Russel’s testimony, Jeffrey Bader, President Obama’s former chief advisor on China, advocated for Taiwan’s government to clarify its sovereignty claims based on the U-shaped line. Moreover, the US State Department published the document, “No. 143: Limits in the Sea” to reiterate the illegality of the U-shaped line under the UN Law of the Sea on December 5, 2014, which in turn gave rise to various domestic debates over Taiwan’s position in the South China Sea Arbitration. Among commenters, some argued that Taiwan should reassess its own South China Sea policy position from the perspective of international law in general and the UN Law of the Sea, specifically.
Although Taiwan’s government expressed its non-acceptance of the arbitration in its public statements, it still sent goodwill signals to international society by adjusting its legal position in the statements. First of all, during former President Ma’s administration, the typical statement usually started out referring to Taiwan’s “historical” claim in order to underline its territorial sovereignty over the four island groups and potentially over the historic waters around them. For example, in the preface of “Position Paper on ROC South China Sea Policy,” Taiwan wrote that “the South China Sea Islands were first discovered, named, and used by the ancient Chinese, and incorporated into national territory and administered by imperial Chinese governments.” However, after the arbitration, in “ROC Position on the South China Sea Arbitration” (hereinafter “Position Statement”), Taiwan only mentions that “the ROC government reiterates that the South China Sea Islands are part of the territory of the ROC.” By removing history and historical-use elements, Taiwan seems to consider ceding historical rights or waters within the U-shaped line.
Moreover, in the aforementioned 2016 Position Statement, Taiwan clearly expresses, “that the ROC is entitled to all rights over the South China Sea Islands and their relevant waters in accordance with international law and the Law of the Sea is beyond dispute.” However, it is noteworthy that the “Law of the Sea” was not clearly mentioned in the statements issued by the Ma administration. For example, in a statement issued on October 31, 2015, Taiwan claims that “[the South China Sea Islands], as well as their surrounding waters, are an inherent part of ROC territory and waters…. [and] the ROC enjoys all rights to these islands and their surrounding waters in accordance with international law.” The 2016 Position Statement emphasizes that maritime rights should be applied to the South China Sea Islands explicitly in accordance with the Law of the Sea within the U-shaped line; the latter position prioritizes international law, which may still include historical waters or rights under more general international law.
Last but not the least, Taiwan’s main reason not to accept the arbitration is based on both procedural and collective human rights dimensions. In the 2016 Position Statement, Taiwan argues that “the Arbitral Tribunal did not formally invite the ROC to participate in its proceedings, nor did it solicit the ROC’s views. Therefore, the award has no legally binding force on the ROC.” In other words, the reason that Taiwan does not accept the arbitration is based on the arbitral proceedings’ failure to meet the due process requirement; otherwise, Taiwan would not adjust its policy statement described in the above two paragraphs. On the other hand, in the first paragraph of the 2016 Position Statement, Taiwan protests that “the ROC is referred to as ‘Taiwan Authority of China.’ This inappropriate designation is demeaning to the status of the ROC as a sovereign state.” Hence, the arbitration also forces Taiwanese people to face the inconvenient truth and the bitter international reality, regarding Taiwan’s sovereignty status. Setting aside the internal disputes over pro- or con- Taiwan’s independence, most people in Taiwan believe that Taiwan satisfies the four legal elements of statehood, namely, population, territory, government and capacity to enter into relations with other states. Therefore, when the Tribunal referred to Taiwan as “Taiwan Authority of China,” President Tsai had to lodge a protest against the Tribunal’s ruling which was, to a certain extent, in violation of Taiwanese people’s collective self-determination right or identity.
As readers can infer from the above account regarding a series of responses made by Taiwan both before and after the arbitration, rule of law, historical claims, and Taiwan’s political relationships with the US and China are important variables affecting Taiwan’s legal and policy choices concerning the U-shaped line. To maintain a delicate balance in accordance with a fluctuant international environment is a significant challenge for a country like Taiwan. As I have argued elsewhere, before the Arbitration, Taiwan had already implicitly clarified through its long-term state practices that the U-shaped line is not seen as identifying historical waters or as delineating a rights line. President Tsai’s message has been even clearer, in dropping all historical elements and mentioning Law of the Sea specifically, which could be seen as a goodwill signal to the region, and to the US. Although such delicate policy adjustments in the statements may disappoint China, as long as Taiwan does not abandon the U-shaped line or explicitly clarify the U-shaped line, it still can be seen as maintaining a relatively status quo South China Sea policy. However, in terms of the structural dilemma Taiwan faces, it has no reason to explicitly interpret the legal character of the U-shaped line or dramatically change its policy toward it. As some have argued, historical evidence without a clear rationale attached to it, like that provided by the Ma administration in the statement has no probative value. In this vein, any policy decision made in relation to the U-shaped line—no matter if it is abandonment of the line, explicitly historical rights or waters claims, or an explicitly territorial sovereignty claim to the islands—must only be made following comprehensive historical and archival research, if such a decision is to be justified. As Taiwan houses the historical archives of centuries-old maps of the South China Sea, which are key to the legal and historical bases of China’s and Taiwan’s claims to the area, Taiwan’s role in the South China Sea should not be ignored.
The main point: The South China Sea arbitration decision was issued by the Tribunal in the Hague over one year ago, and Taiwan’s official statements indicate that it will not accept that decision. However, Taiwan has since sent goodwill signals to the international community by adjusting its legal position concerning the U-shaped line. The most important of these is for Taiwan not to mention history in government statements and for it to explicitly express its intention to claim maritime rights in accordance with the UN Law of the Sea. Nevertheless, comprehensive research in relevant historical archives is very important to justify any decision relating to the U-shaped line in the future. As Taiwan houses the historical archives relating to the U-shaped line map, Taiwan’s role in the South China Sea should not be ignored.