The SCS Tribunal Demagoguery Continues...

Shijhuo town above Chiayi

On the 20th legislators from both the KMT and DPP headed out to Taiping Island, or Itu Aba as the world knows it, to demonstrate sovereignty on the taxpayer dollar. Taiwan Today reported:

Lawmakers Chen Ting-fei, Lo Chih-cheng, Tsai Shih-ying and Wang Ting-yu of the ruling Democratic Progressive Party, as well as Chiang Chi-chen, Hsu Chih-jung, Huang Chao-shun and Lu Yu-ling from the main opposition Kuomintang, flew from southern Taiwan’s Pingtung Airport to Taiping Island on a military transport aircraft.

During a roughly two-hour visit, the legislators inspected a number of facilities on the island, including its satellite and solar power equipment and weather station. “Taiping Island is absolutely not a rock, as described by the arbitral tribunal, and is in fact an island,” said the KMT’s Chiang, who led the team of lawmakers. “The ROC has administered Taiping Island for seven decades and has continuously worked to improve the facilities on the island, which is fully capable of sustaining human life.”

DPP lawmaker Wang praised the high quality of local agricultural produce after sampling coconut milk from fruit grown on Taiping Island. He also lauded the dedication of personnel stationed there, adding “there can be no question that Taiping Island is an inherent part of the ROC’s sovereign territory.”

The Tribunal ruled that Itu Aba cannot sustain life, since all of its human residents were there only temporarily for extractive purposes, and the island never hosted an indigenous population. Nevertheless, this reality has not stopped a barrage of nationalistic posturing, which harnesses Taiwan nationalism in the service of ROC territorial nationalism. Taiping Island might be a sovereign territory of the ROC but it can never be part of any independent Taiwanese state. The DPP should be downplaying this mess, not stoking it. And it certainly should not be mixing up Taiwan nationalism and ROC nationalism...

Many of us had commented in the run up to the election that Tsai would likely be more rational than Ma Ying-jeou in the South China Sea. She is not off to a good start...

President Tsai herself reiterated this dangerous position in her recent interview in WaPo:

“We will not accept their decision, and there are several reasons for that. First, Taiwan is an important party of interest in this case, but we were not invited to participate in the proceedings. Second, we found it unacceptable that we were referred to as the ‘Taiwan Authority of China.’

“The third reason is that Taiping is indeed an island.”

ROC diplomats have also gone on an offensive with letters in numerous publications explaining the government's position. From WSJ:

The PCA neither formally invited the ROC to participate in its proceedings, nor did it solicit the ROC’s views. In addition, ROC-governed Taiping Island wasn’t originally included in the Philippines’ submissions for arbitration. However, the tribunal took upon itself to expand its authority, declaring all features in the Spratly Islands to be rocks, including Taiping Island, which beyond dispute meets the criteria of an island as defined by the U.N. Convention on the Law of the Sea, as it can sustain human habitation and an economic life of its own.

The letter contains a confusion that many people, including myself, fell for: the Permanent Court of Arbitration issued the ruling. Actually, it wasn't that court, as Jerome Cohen explained, but a different arbitration panel appointed for this case. UPDATE: Here is another one from the Taiwan rep in Phils

The language "the tribunal took [it] upon itself to expand its authority" is the Taiwan government position. Itu Aba was, according to Philippines media reports, originally not part of the Phils submission....

“In the beginning, nobody said, ‘Include Itu Aba.’ Nobody. Not (Paul) Reichler (the Philippines’ lead lawyer), not the Department of Foreign Affairs (DFA). Nobody,” Jardeleza told the Inquirer in an interview on Thursday.

“Nobody wanted to mention Itu Aba because the risk was, if the tribunal ruled that it was an island, there would be an overlap of the EEZs,” he said.

The feature was not in the original complaint against China that the Philippines brought in January 2013.

In the following months, Jardeleza’s said scholars started taunting the Philippines in news reports for missing the largest feature in the Spratlys in its case.

...

Still, Reichler, of the international firm Foley Hoag who was commissioned for the case because of his experience in international arbitration, wrote 17 paragraphs about Itu Aba in the Philippines’ “memorial” in the case.

The memorial—a “long explanation of the complaint,” according to Hilbay—was in the works at the time.

Then President Benigno Aquino III eventually decided to include Itu Aba in the memorial, which was filed in March 2014, through mere mention, which made it “an incidental issue that might be relevant for deciding the major issues,” Hilbay said.

Later, it was the tribunal itself that asked the Philippines to submit further pleadings tackling Itu Aba—the strategy that Hilbay and Jardeleza said they had been eyeing all along.

“[The tribunal] knew Itu Aba was going to be crucial because it’s the largest feature. The tribunal itself was the one who compelled us to discuss Itu Aba, so it’s they signaling to us that we could not decide a lot of the issues you raised without looking at Itu Aba. But it’s the tribunal, not the [Philippines, that raised it as a feature whose status must be clarified],” Hilbay said.

The Philippines' legal strategy was apparently to get the Tribunal to ask for more information about Itu Aba. The Tribunal did not "expand its authority" since it was authorized to explore the Philippines' complaint against China, and anything that Phils included in the complaint was fair game.

The position that the Taiwan government was not invited and thus rejects the conclusions is mere cant. Only two governments were invited, China and Philippines, since the case was between them, and Beijing rejected participation. Other governments with territory in the area, such as Malaysia and Brunei, were also not invited. The tribunal looked at Beijing's public statements, however, and accepted briefs from Taiwan. In fact, Philippines told the Tribunal that in lieu of China's participation, the tribunal could accept materials from Taiwan. China, which makes the exact same case for Itu Aba as the ROC does, sent several letters to individual members of the tribunal, though it emphasized that the letters did not constitute a plea or participation. Paragraph 438 of the Tribunal's decision observes:

438. The Philippines considers the Taiwan Authority’s submission of additional materials concerning the status of Itu Aba, such as a “Position Paper on ROC South China Sea Policy Republic of China (Taiwan)” and an “Amicus Curiae Submission by the Chinese (Taiwan) Society of International Law,” similarly unavailing. Even on the basis of the materials submitted by the Taiwan Authority, the Philippines argues that Itu Aba has neither a longstanding history of human habitation nor possesses sufficient fresh water and soil resources to sustain such a population, and notes that any attempts made to carry out “meaningful economic activity” on Itu Aba uniformly “ended in failure.”459 The Philippines attaches a supplemental expert report by Dr. Ryan T. Bailey, who questions the Taiwan Authority’s measurements of water quality and salt concentration on Itu Aba’s wells. 460 The Philippines considers the historical account presented by the Taiwan Authority relevant insofar as it undermines China’s claim to exclusive rights within the ‘nine-dash line’.461

Taiwan may not have been invited to participate, but it clearly participated (the friend of the court brief from the ROC body is here and hosted on Scribd, the position paper is online here). Both of those were submitted under the Ma Administration. As Francis-Xavier Bonnet has shown, the "markers" referred to in both texts that assert older Chinese sovereignty over the islands were planted in the 1930s and again in the 1950s.

And none of the PRC or ROC presentations addresses the key Philippines' argument: there was never a population of indigenes on the island.
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