Taiwan’s South China Sea Claim: Entwined with Cross-Strait Relations
By Hui-Yi Katherine Tseng

Taiwan’s South China Sea Claim: Entwined with Cross-Strait Relations

May. 23, 2016  |     |  0 comments


The Republic of China (ROC), commonly known as Taiwan, laid claim over the South China Sea in 1947 by publishing a map with an 11-dash line (also known as the u-shaped line1), at a time when it still held mainland China. Following 1949 when the ROC retreated to Taiwan, the Chiang administration stayed in rivalry with Mao’s China. Both Chiang and his son laid sovereign claims in the South China Sea similar to those made by the People’s Republic of China (PRC).

Taiwan’s claim is largely similar to China’s. However, Taiwan’s actual control is restricted to the Pratas Islands in the North, and Itu Aba, the largest islet in the Spratly Islands. Yet, it was not until the late 1980s that Taiwan started to take action to vindicate its claims in the South China Sea.

During the two generations of the Chiang administration (Chiang Kai-Shek and Chiang Ching-Guo), while hostilities continued across the Taiwan Straits, it was predicted that both sides would not protest each other’s territorial claims over the disputed waters. Rather, on certain occasions, they would reaffirm the dash line and territorial claims2 (Pak, 2000).

The first half of the 1990s witnessed a more active proposition by the Lee administration (former President Lee Teng-Hui, in office 1988-2000). Ice-breaking policies with the bolstering effects of Taiwan’s territorial claims were explored and put to the test.

The late 1990s was a period when the Taiwanese position over the South China Sea delivered mixed messages. On one hand, Taiwan appeared to undertake some modifications, as it did not reiterate the long-held historical water approach in the newly-enacted law of the territorial sea and contiguous zones3. This change explained the redeployment decision of Taiwan to station a semi-military force on Itu Aba in the Spratly Islands.

On the other hand, Taipei also took measures that directed the attention back to the historical claim that had persisted since the 1950s. In 1998, the Executive Yuan made the first announcement of the territorial baselines of the Pratas Islands and the Maccelesfield Bank. Along with the demonstration, Taipei reiterated again its territorial claim over the Spratly Islands, as well as all other features within the 11-dash line.

After the Chen administration came to power in 2000, it shifted to a more passive standing, neither following previous KMT positions, nor objecting to other claimants’ unilateral activities with a high profile. It was not until Ma Ying-jeou came into power, after 2008, that Taiwan became active again in the South China Sea.


China-Taiwan relations should be deemed as one between a de jure government (China) and a de facto government (Taiwan).



The identity of China’s and Taiwan’s claims appears odd, since there cannot be two claimants that have argued for same reasons for the sovereignty of a subject. This is where challenges lie. How can Taiwan distinguish its position from China’s? The Taiwanese government has, until now, continued with its competition with the Chinese government to be the Chinese representative in the international community. Against this backdrop, how should Taiwan’s South China Sea claim, on behalf of the Republic of China, be evaluated in the broader context of the “One China” reality in the international community? Is it counterbalancing, or contrarily, fortifying China’s contestations?

The international community holds that the Chinese case is one of government succession, while the state of China remains, with its international legal personality left intact4. International documents and state practices have lent evidentiary support to this observation. Of primary significance is the General Assembly Resolution 2758, mandating the expulsion of the ROC government from the United Nations, and the taking over of the Chinese seat by the PRC government (UN General Assembly Resolution, 2758 (XXVI), 1971). Another example is the US position in the Joint Communique in 1979, where the US acknowledged China’s position that there is only one China and the PRC is its sole legal government5. Yet, in nearly the same breath, the US also stressed that it would continue to maintain cultural, commercial, and other unofficial relations with the people of Taiwan6 (Kan, 2014). This US practice leaves open the question whether it deems the ROC government, after being succeeded by the PRC government, has thus been transformed into a local government that pays political allegiance to the Beijing government. Against this backdrop, the case of government succession has been transformed into one of recognition, and the process of succession drags on, creating space for the predecessor government to survive and develop a separate identity from the succeeding government.

In this context, China-Taiwan relations should be deemed as one between a de jure government (China) and a de facto government (Taiwan). Both have committed to the “One China” principle, while only the Chinese version is formally recognized — that there is only one China in the world, which is the People’s Republic of China. Therefore, claims made by a de facto government should not trump those made by a de jure one. In case of similarity, the position of the de facto government should be incorporated into that of the de jure one, as the de jure status enjoys systemic credit and legal accountability. In case of conflict, claims made by the de jure government would simply overwrite those made by the de facto government.

In this context, the Ma administration’s efforts in asserting South China Sea claims on the behalf of the ROC are misleading. While these efforts intend to show that the Taiwan government is laying its own claims distinctly from China, they actually lead to the outcome of Taiwan’s claims being incorporated into China’s, in the context of the international law of government succession and recognition, and because of the political consideration of the “One China” principle. The Ma administration’s efforts are creating room and discretion for territorial administration for a government at a sub-national level in the political and legal framework of “One China.” In this framework, Taiwan enjoys de facto status, so its claims are of a subsidiary position to those made by a de jure China. Succinctly put, Taiwan’s claims are largely incorporated into China’s claims; except in two issues, Taiwan’s 11-dash line and its effective control of the Pratas and Itu Aba islands. Yet, in these two issues, the legal impact of Taiwan’s claims is seemingly compromised too, because of Taipei’s opinio juris of the “One China” principle. In other words, legal effects of Taiwan’s 11-dash line claim and territorial administration of the Pratas and Itu Aba islands are attenuated, because Taiwan’s opinio juris on which these claims are made — the “One China” refers to Republic of China — is not formally recognized in the international community.

From a realistic perspective, the efforts of the Ma administration in the South China Sea dispute did not necessarily teach Taiwan harsh lessons. Ma may have underestimated the intertwinement of Taiwan-China relations and Taiwan’s South China Sea claims. But Ma was surely sensible to the desire of the Taiwanese people to make peace with China rather than war. In this sense, the ostensible failure of the Ma administration’s South China Sea efforts had actually sent an alarming message, showcasing Taiwan’s preference for realist interests of survivorship to nominal virtues like sovereignty. This also reflects the consciousness of the peaceful realism of the Taiwanese living at the forefront of the conflict, because they will be the first to bear the brunt of physical conflict in the worst case scenario. While it is unlikely to expect a quick solution to the Taiwan issue in the near future, Taiwan’s future leaders should not see the South China Sea issue as distinct from China-Taiwan relations. It is the political status of the two governments that underlines Taiwan’s South China Sea contestations, and Taiwan cannot afford any misjudgments or miscalculations. It is only with this holistic view that whoever comes to power can answer to the ancestors, people, and descendants.

Notes

1. The map, along with this proposition, was later revised to the nine-dotted line as endorsed by the then PRC Prime Minister Zhou En-Lai. For the purpose of discussion, the term “dash-line claim” will be used in this article, to avoid confusion if it is the 11-dash or 9-dash line that is being discussed. China and Vietnam formally put this agreement into words in 2000, when both entered into a bilateral agreement on maritime delimitation. See: Agreement on the Delimitation of the Territorial Seas, Exclusive Economic Zones and Continental Shelves in the Beibu Gulf [Gulf of Tonkin] between the People’s Republic of China and the Socialist Republic of Vietnam, 25 December, 2000, Law of the Sea Bulletin No. 56. 2004 137 (entered into force 30 June 2004).

2. The South China Sea issues returned back to the focus when the Filipino Navy boarded and claimed to discover an island in the Spratly Islands in 1956. Both Beijing and Taipei staged formal protests to Manila. Due to the event, Taipei had formally stationed on Itu Aba in the Spratly Islands from 1956 until the late 1990s, when the mission was shifted to Coast Guard Agency.

3. Ministry of the Interior (Taiwan, ROC), Law on the Territorial Sea and the Contiguous Zone of the Republic of China, promulgated 21 January, 1998. Taiwan also enacted the law of exclusive economic zone and continental shelf on the same date.

4. China (PRC) has in many official documents reiterated this position. See: Taiwan Affairs Office of the State Council (China, PRC). (n.d.). The One-China principle and the Taiwan issue. Retrieved from http://www.gwytb.gov.cn/en/Special/WhitePapers/201103/t20110316_1789217.htm; Taiwan Affairs Office of the State Council (China, PRC). (n.d.). The Taiwan question and reunification of China. Retrieved from http://www.gwytb.gov.cn/en/Special/WhitePapers/201103/t20110316_1789216.htm. Also see: Taiwan zigu jiushi zhongguo lingtu. [Taiwan constitutes an inherent part of China’s territory since ancient time]. Xinhuanet. Retrieved from
http://news.xinhuanet.com/ziliao/2003-01/24/content_705074_1.htm

5. The Department of State of the United States. (n.d.). Milestones: 1977-1980: China policy. Retrieved from
https://history.state.gov/milestones/1977-1980/china-policy. The document can be retrieved from American Institute in Taiwan (ROC). (n.d.). Key US foreign policy documents for the region. Retrieved from
http://photos.state.gov/libraries/ait-taiwan/171414/ait-pages/prc_e.pdf

6.  Five key documents are of particular importance: the Shanghai Communique in 1972, the Normalization Communique in 1979, the Taiwan Relations Act in 1979 (enacted by the US Congress), the Six Assurances to the ROC government in 1982, and the Communique in 17 August 1982 regarding US arms sales to Taiwan. In the communique in 1979, the wording provides that “…The United States of America recognizes the Government of the People's Republic of China as the sole legal Government of China. Within this context, the people of the United States will maintain cultural, commercial, and other unofficial relations with the people of Taiwan…”

References

Kan, S. (2014, October 10). China/Taiwan: Evolution of the “One China” policy — Key statements from Washington, Beijing, and Taipei. Congress Research Service. Retrieved from https://www.fas.org/sgp/crs/row/RL30341.pdf

Pak, H.-G. (2000). The Law of the Sea and Northeast Asia: A Challenge for Cooperation. Hague: Martinus Nijhoff Publishers, Ch. 3, pp. 77-110.

Restoration of The Lawful Rights of the People’s Republic of China in The United Nations General Assembly, Resolution 2758 (XXVI). (1971, October 25).

Leave a Reply

Your email address will not be published. Required fields are marked *