Written by Dana S. Trif.
The Arbitral Tribunal constituted under the UN Convention on the Law of the Sea (UNCLOS) issued in July, 2016 its controversial decision in the case brought by the Philippines against the Peoples’ Republic of China (PRC).
In many ways the ruling was the first of its kind. The judges’ dismissal of Chinese ‘historic claims’ in the South China Sea and the sweeping relegation of all land features included in the claimant’s 15 Submissions to the status of ‘rocks’ caused a storm in international legal and security circles. As expected, China reacted strongly against the Award, which the PRC considers illegal as well as illegitimate. A position it has consistently upheld throughout the 3-year-long proceedings.
The first to condemn the outcome of this arbitration was however not China, but the Republic of China (Taiwan). The Ministry of Foreign Affairs issued a statement on the same day the award was made public, signalling the intensity with which Taiwan resented its treatment by the international court.
The Tribunal refused to consider Taiwanese submissions regarding Itu Aba (Taiping), the largest feature in the Spratly island chain, and had downgraded the island to the status of a rock. Adding insult to injury, the Republic of China was referred to as ‘Taiwan Authority of China’ throughout the procedures, a delicate issue for the country’s international standing. The Tribunal’s award contradicted as well the ROC’s official discourse in the region.
Due to its historical legacy, Taiwanese foreign policy in the South China Sea aligns itself perfectly with mainland positions on this issue.
As the direct successor of the Nationalist Chinese Government which drafted in 1947 the now infamous 11-dash-line map, Taiwan continues to claim sovereignty over most of the islets which China considers its ‘historic right’. The strong position against the 2016 ruling was therefore in line with Taiwan’s previous official statements, including those of the former Ma’s administration.
The award was most likely intended to clarify some of the issues involved in the South China Sea disputes.
Had all ten littoral states vying for a larger Exclusive Economic Zone (EEZ) accepted that no land feature in the Spratly could invoke the coveted 200 nautical miles that UNCLOS assigns to islands (Articles 55 – 57 UNCLOS), the effect could have been a reduction in the size of the contested area. The result however has fallen considerably short of its expectations. China has recently made the international news headlines with an alleged deployment of missiles on artificial islands built in the South China Sea.
The Philippines under Duterte has chosen, at least until recently, closer economic ties with the PRC over its traditional security alliance with the U.S. Duterte was also less vocal in welcoming the award. ASEAN, the institution which brings together almost all of the South China Sea claimants, with the exception of Taiwan, has shown itself reluctant to engage with the PRC very strongly on this issue. The United States’ position on the other hand, and its defence of freedom of navigation in these waters, slowly, but surely, brings America on a collision course with Chinese attempts to project Chinese military power further by claiming a bigger chunk of maritime regional influence.
Not only states, but also the evolving UNCLOS jurisprudence are increasingly challenging the maritime status quo in the South China Sea and beyond. For example, the collision between international law, its diverging interpretations, a strongly nationalistic Chinese state discourse and economic interests have apparently intensified regional tensions in the South China Sea. More significantly however, the post-award legal and security debate is a sign of things to come in transnational maritime governance. The upcoming battle over maritime riches will (also) take place in a part of the globe that had remained, until recently, immune to human intervention: the Arctic. Climate change has opened up access to the Northwest Passage, a pristine commercial route which countries like Russia and China dream of exploiting to their advantage.
There is even talk of a new ‘Polar Silk Road’ that could deliver Chinese goods faster through the Northwest Passage to Western consumers.
China has taken concrete steps to turning such a scenario into reality. In August 2017, MV Xue Long (the “Snow Dragon”) was the first Chinese ice-breaker to circumnavigate the Arctic by conducting a scientific research mission. The ship had received the approval of Canadian authorities to sail through the Northwest Passage, which Canada claims, and the United States disputes, to be part of its internal waters. Some commentators have brushed aside the research purpose of Xue Long, underlining its strategic relevance as the first Chinese ship to complete the voyage and gather information on behalf of future commercial vessels.
China has also steadily increased its presence in the region by becoming in 2013 an observer to the Arctic Council. Created in 1996, this intergovernmental organization seeks among others to give a voice to the indigenous populations spread across the eight Arctic neighbouring countries, whose livelihood is directly affected by climate change.
Slowly, but surely, global phenomena such as climate change, the new geography of maritime transport, the evolving UNCLOS jurisprudence and redefined state interests, will create a window of opportunity for Taiwan’s international legal diplomacy. The issues at stake, including the delimitation of exclusive economic zones, continental shelves and rights of transit passage are similar across the two regional seas. Canada considers the Northwest Passage as part of its internal waters and demands that ships belonging to other states seek its authorization prior to entering.
The U.S. disputes the claim and considers this area an international strait connecting two high seas, a status that would offer rights of transit passage to military and commercial ships. The United States holds a similar position regarding the Hainan Strait, between the South China Sea and the Gulf of Tonkin.
Disputes over maritime resources and sovereignty rights will require more, not fewer diplomatic efforts. Taiwan can stand to gain from its past efforts at international legal diplomacy. Although opting for multilateralism might appear to run against main trends in international affairs, preparing for the future, while not ignoring the present, could be a much better long-term strategy.
The ROC’s foreign policy has already engaged with the difficult overlapping claims and the entrenched positions of the South China Sea claimants. The 2015 South China Peace Initiative and the 2016 Position Paper outlined five principles that could facilitate cooperation, among which: rejection of unilateralism, respect for international law, inclusion of all stakeholders in future negotiations, establishing a regional cooperation mechanism, and the setting-up of “coordination and cooperation mechanisms for non-traditional security issues such as environmental protection, scientific research, marine crime fighting, humanitarian assistance and disaster relief”.
The struggles of Arctic indigenous populations to preserve their cultural heritage in the face of changing environmental circumstances is another issue area in which Taiwan could share its expertise.
Climate change and global trade patterns in the 21st century are bound to generate conflicting state interests. Although different patterns of international behaviour are still to emerge, one striking characteristic of latest developments in world affairs has been the translation of these issues within the framework of international law. Rather than having less political clout, conventions such as UNCLOS are being used as reference points in acrimonious international debates about regional seas.
Political scientists have also begun to pay more attention to the inextricable nexus of relationships that link international legal rules about the status of islands and rights of transit passage in international straits with security and politics. For example, the concept of maritime security is recently making headway in the discipline of International Relations, mostly due to the resurgence of maritime threats and inter-state tensions in regions such as the Arctic or the South and East China Seas. Reflecting changing perceptions of the seas as areas of renewed sovereign clashes, the academic definitions of the term have referred so far to a basket of ‘threats’, from piracy and environmental crimes, to dangers threatening ‘good’ or ‘stable order’.
Taiwan’s ability to act as a ‘global model citizen’ might give it the normative leverage it seeks in global policy initiatives that will soon become necessary in the harmonization of various regional approaches to maritime governance.