Taiwan, along with China and four Southeast Asian countries, is a claimant in the South China Sea, though this fact is sometimes overlooked, despite it occupying the largest natural land feature in the South China Sea (Taiping Island or Itu Aba). On paper, Taiwan and China appear to be making substantially the same claims. The dashed or U-shaped line encapsulating much of the South China Sea appears on both Taiwanese and Chinese maps.
Neither China nor Taiwan has officially clarified the meaning of the dashed line which could be seen as making a claim to the wide expanse of water enclosed within the dashed line or (merely) to the land features contained therein and to maritime zones made from them in accordance with UNCLOS and international law.
In the past year, however, Taiwan has taken small but significant steps toward clarifying that its claims are from land and in accord with UNCLOS and international law. For instance, President Ma Ying-jeou affirmed in a speech in September 2014 that “the principle that ‘sovereignty over land determines ownership of the surrounding waters,’ which is set out in the United Nations Convention on the Law of the Sea, applies to disputes concerning sovereignty over both land and sea.” Taiwan has also adopted a more conciliatory position by advocating that its East China Sea Peace Initiative, which urges parties to shelve disputes and promote joint exploration and development in the East China Sea (where China, Taiwan and Japan have competing claims), be applied in the South China Sea as well.
Such moves are significant in that they could have a stabilizing effect in the South China Sea. The PRC inherited the ROC’s claims after the Chinese civil war. Thus, the ROC’s interpretation of its claims is relevant to the PRC’s claims. A more limited reading of the claims would not be inconsistent with China’s official position as set out in its 2009 and 2011 statements to the United Nations.
Taiwan’s overtures, however, have largely been ignored. At the root of this is China’s “One-China” principle, which has cast a long shadow over Taiwan and made ASEAN and its member states fearful to engage Taipei. Though being more receptive toward Taiwan’s overtures in the South China Sea need not necessarily be inconsistent with China’s One-China principle, ASEAN and its member states are arguably unduly conservative in this regard given China’s huge economic and political clout. They have also traditionally been fearful of Taiwan and China cooperating to defend the islands from a third party attack or to bolster claims to the South China Sea, though Taipei has consistently rejected the possibility of cooperating with Beijing on claims in the South China Sea since worsening cross-Strait relations from the mid-1990s.
In order to carve out a modest political space for itself in the South China Sea, Taiwan should:
- Clarify that its claims accord with UNCLOS and international law without expressly eschewing the dashed line.
Taipei can clarify what it means when it claims the four archipelagos in the South China Sea as well as their “surrounding waters” as the territory of the ROC, or consistently pronounce that its maritime claims are from the islands over which it claims sovereignty in accordance with UNCLOS and international law. An important consideration in this respect is that interpreting the dashed line as a claim to the wide expanse of water enclosed within it would win itself no favors with the United States, its single most important ally. The U.S. Department of State report analyzing China’s maritime claims in the South China Sea, specifically its dashed line, is also an indirect pronouncement on Taiwan’s claims insofar as they assert that the dashed line represents a national boundary or a historic claim over the maritime space within it.
Apart from encouraging China to be more inclined to interpret the dashed line in a way that accords with international law and act accordingly, clarification of Taiwan’s claims is also likely to have a salutary domestic effect: incremental adjustments to Taiwan’s position in the South China Sea will make any subsequent changes the opposition Democratic Progressive Party (DPP) might introduce or threaten to introduce less dramatic and destabilizing. Some within the DPP have threatened that if the DPP comes to power in 2016, it will confine Taiwan’s territorial claims to islands under its control and (explicitly) abandon the dashed line.
Although Taiwan should clarify what it means by “surrounding waters” or make clear that its maritime claims are from the islands over which it claims sovereignty in accordance with UNCLOS and international law, it should not expressly abandon the dashed line (nor be expected to do so). While important, Taiwan’s interests in the South China Sea are second to maintaining stable relations with China and the ability to protect the island of Taiwan itself from any mainland attack. Expressly abandoning the dashed line is likely to undermine Taiwan’s primary interest in maintaining stable relations with China. It would anger China since it would explicitly undermine the legitimacy of any Chinese claim to the dashed line as national boundary or enclosing historic rights and put China in a bad light.
- Continue promoting President Ma Ying-jeou’s plan for the East China Sea in the South China Sea.
The broad principles of the East China Peace Initiative, namely, “safeguarding sovereignty, shelving disputes, pursuing peace and reciprocity, and promoting joint exploration and development,” can usefully be applied to the South China Sea. Promoting these tenets will help to demonstrate to the other players that Taiwan is willing and able to constructively engage in managing the dispute.
- Provide evidence that Taiping Island is an “island” capable of sustaining human habitation or economic life under Article 121 UNCLOS.
It is not entirely clear whether the status of Taiping Island was addressed by the Philippines in its memorial and supplementary submission. If it was, Taiwan has a strong interest in providing evidence that it is in fact an “island” capable of sustaining human habitation or economic life and therefore entitled to an EEZ and continental shelf. The ROC is in the best position to provide appropriate evidence having occupied Taiping Island since 1956. Doing so would assist the tribunal in giving due regard to Taiwan’s rights and interests in the South China Sea. It would also indirectly support consistency between Taiwan’s claims and UNCLOS and international law.
- Push behind the scenes for participation in Code of Conduct negotiations and in cooperative activities involving all claimants in ways that will be consistent with China’s One-China principle.
All parties who have an interest in better management of the dispute and a more peaceful region—including China—have an interest in supporting Taiwan’s inclusion in negotiations and activities relating to the South China Sea. This can be done in ways consistent with China’s One-China principle. There is precedent for Taiwan participating in organizations and meetings where it cannot be a member because of the requirement of statehood. Taiwan can be invited to participate in Code of Conduct negotiations as an observer or guest. Taiwan could also be invited to declare that it will abide by the terms of the Code of Conduct without it being a party to it. Cooperative activities between claimants, such as marine environmental protection; marine scientific research; safety of navigation and communication at sea; search and rescue operations; and combating transnational crime, can be negotiated and agreed to between the agencies directly involved, rather than formal treaties.
ASEAN and its member states would do well to re-evaluate their position toward Taiwan and be more open to its involvement. Taiwan’s involvement recognizes facts on the ground, namely, its control of the largest natural island, the regular patrol of the seas by its coast guard, and its huge fishing industry—one of the largest in the Pacific. Including Taiwan is a pragmatic and necessary part of managing conflict.
Crucially, Taiwan and what it claims (and by implication does not claim) can help stabilize the South China Sea dispute. China, with high levels of nationalism within its country—and because it can get away with it—will not denounce the dashed line. However, it will want, as far as possible, to avoid being perceived as riding roughshod over international law and might be motivated to interpret the dashed line in a way that is consistent with international law and act accordingly. It still cares what the international community thinks and it is important for ASEAN countries to work this leverage.
The United States wants to see this dispute managed peacefully and in accordance with international law. Thus, it too has an interest in supporting Taiwan’s participation in regional negotiations and in cooperative activities. The United States, however, is hampered in its ability to directly appeal to China to encourage this, given Beijing’s tendency to regard the United States as meddling and its proposals with suspicion. U.S. involvement in this regard may thus be counterproductive; it needs to be broached quietly and sensitively, if at all.
On the other hand, the United States can and should do all it can to support Taiwan clarifying its claims so that it more clearly accords with UNCLOS and international law. Privately, the United States should reassure Taiwan that it does not expect it to explicitly abandon the dashed line, despite some calls from within the United States for Taipei to do so. The United States should also work behind the scenes to encourage ASEAN and its member states to welcome Taiwan’s participation, making a strong case for why Taipei’s involvement will have a salutary effect on reducing tensions in the South China Sea.
China, too, has strong reasons to regard Taiwan’s inclusion as a positive thing. In light of Taiwan’s upcoming and potentially raucous 2016 elections, it is particularly important for China to put cross-Strait relations on firmer foundations. Supporting Taiwan’s participation in cooperative activities will also be in keeping with the Chinese foreign ministry’s dual-track approach to the dispute, which is to seek one-on-one negotiations on sovereignty issues, and multilateral arrangements within the region to promote peace and stability in the South China Sea. The promotion of peace and stability in the South China Sea must, as a matter of efficacy, include all important actors regardless of their legal status. Bringing Taiwan into the fold will help demonstrate China’s sincerity in seeking a peaceful solution to the dispute.
A more detailed account of these arguments and surrounding issues such as calls within the United States for Taipei to “clarify” or “abandon” its dashed line, salient Chinese responses and the broader context which Taiwan operates may be found in the author’s recent report for the Brookings Institution.