The Tribunal Ruling on China vs Philippines: Tsai misses an opportunity

This week my old college roommate from 35 years ago came to Taiwan, so naturally I took him to Alishan.

I took my old college roommate to Alishan on Tuesday and Wednesday, then frantically did all the work I'd been ignoring, then headed up to Taipei for hours of meetings on Thursday and Friday morning. Sorry for my silence.

New President Tsai Ing-wen has to solve three interrelated problems: (1) the ordinary problems any leader faces, from domestic crises to economic growth; (2) Taiwan's relationship with the large state next door that wants to annex it; and (3) Taiwan as a state in a post-colonial transition. The Taiping island mess impinges on all three...

That's why her response to the surprisingly sweeping decision of the Court of Arbitration decision in the case brought by Philippines against Chinese expansionism in the South China Sea was so disappointing to so many of us watching. The Tsai Administration may have lost a perfect opportunity to separate itself from China, to reassure the US that would have a calm and rational foreign policy, to bolster its southward oriented diplomatic policies, and to begin to distinguish Taiwan from the ROC colonial state. There were a couple of bright spots.

There's a pretty simple filter for deciding what to do in situations like this: imagine what the KMT would do, and then don't do that.

WHAT HAPPENED
First, the Court of Arbitration at The Hague ruled that the ROC-held island of Itu Aba was not an island but a rock under UNCLOS, along with everything else in the Spratlys. That was a massive defeat for China, which refused to participate in the proceedings.

Tsai immediately dispatched a warship to the island and rejected the verdict of the Tribunal...

“Today [Wednesday], the Kang Ding-class Dyi-huah frigate is to embark on a patrol mission in the South China Sea,” Tsai said in a morning speech to the crew of the frigate. “The mission was moved forward by one day and carries particular significance, as new developments occurred in the region yesterday [Tuesday].”

Tsai said a ruling handed down by the Permanent Court of Arbitration in The Hague, Netherlands, on Tuesday, especially the part pertaining to Itu Aba Island (Taiping Island, 太平島), constituted a severe impairment of the nation’s rights regarding its islands and territorial waters in the South China Sea.

“This frigate represents the Republic of China. The uniforms you wear represent the public’s trust in you,” Tsai said. “As for this mission, it is aimed at demonstrating Taiwanese determination to defend our national interests.”

A paragraph in the court’s ruling states that all of the high-tide features in the Spratly Islands (Nansha Islands, 南沙群島) — which Taiwan claims — including Itu Aba, are legally “rocks” that do not generate an exclusive economic zone or continental shelf.

The government has refused to recognize the ruling and deemed it as having no legal effect on the nation on the grounds that Taiwan was not invited to participate in the arbitration process, nor was it consulted about its opinions.

The Czech East Asian security expert Michal Thim explained the ruling succinctly on Facebook:

To put it simply, Taiwan has sovereignty over Itu Aba, but it cannot utilize sea beyond 12 nautical miles economically without Manila consent.

The Tribunal basically declared that there are no islands capable of generating an EEZ within the South China Sea, including Itu Aba (Taiping Island), held by the ROC. This doesn't mean that Itu Aba isn't an island (it obviously is, there's a runway there). What it means is that under the definition of the UN Convention on the Law of the Sea (UNCLOS), Itu Aba cannot generate an EEZ because it fails to meet the qualification of being able to sustain habitation by human beings. Keep that in mind because you're going to see many stupid memes over the next few weeks on social media...

If you want to claim it can sustain human habitation because it has a spring, I suggest you take a look around the Pacific. As longtime scholar of Taiwan's aboriginal peoples pointed out to me, the ancient peoples of SE Asia spread themselves from Madagascar to Hawaii, but they never set up homes in the Spratlys. Why? Because sustained economic habitation is not possible there. The Tribunal may be right or wrong, but it is not being unreasonable. Without an outside source of supplies, Itu Aba is not habitable.

The Tribunal thus defined what an island is under UNCLOS, which is not only its right but its duty (and something urgently necessary!). Note that the Tribunal, while defining Itu Aba as a rock for the purposes of UNCLOS, did not say Taiwan had no sovereignty over it. What the tribunal did was invalidate the infamous 9 dash line, for good. It also may have invalidated Japanese claims that the Senkakus can generate an EEZ, a problem Taiwan will have to deal with sooner or later.

What it means is that sovereign features in that area like Itu Aba -- all of the rocks, spits, reefs, sandbars, and islands -- alike have no ability to generate an Exclusive Economic Zone (EEZ) out to 200 nautical miles, and are restricted to a 12 nautical mile zone around each feature. The remaining waters lie within the EEZs of Vietnam, Malaysia, Brunei, Indonesia, and Philippines. This means that (for example) Philippines can declare an EEZ over much of the area. To use resources from that area outside the 12 nm limit, nations will need permission of the EEZ owner. An EEZ allows ships to transit for research, military, and commercial purposes, but only the owner can access the resources.

THE ADMINISTRATION RESPONSE
The Tsai government responded to that by differentiating itself from China on two key points: it agreed internally to stop talking about the 9 dash line and the "historical waters" nonsense...

President Tsai Ing-wen’s (蔡英文) administration has reached an internal resolution on Taiwan’s territorial claims over the South China Sea, which stresses the nation’s sovereignty over islands in the area, but makes no mention of the so-called “U-shaped line” and “historical waters,” a Presidential Office source said yesterday.

This was a huge advance, and a good way to separate from China. Gerrit van der Wees pointed out in the Diplomat that China's version of that dashed line includes Taiwan. So there's a bright spot there...

Tsai's reaction was deplored in all quarters, showing the many constraints on her actions: there's little she could have done without making the majority of people angry. The pan-Blues felt it didn't go far enough. US pundits felt it was a great error, and I heard privately that some US observers were angered that Taiwan was hurting the Philippines. Many of us felt Tsai ought to have used the 1992 Consensus approach: "We respect the ruling of the Tribunal Yadda yadda" and taken a low key, all-in-a-day's work approach.

The Blue camp editorialized against the decision, saying it was a US orchestrated decision to hurt Taiwan. That's madness, but the appearance of Tsai herself on a frigate looking determined was certain to stoke Taiwan nationalist feelings and it is not a good idea to mix Taiwanese and ROC nationalism. That has been a long-standing goal of the KMT. Tsai should have sent the frigate later in the week, emphasizing the ho-hum nature of an ordinary patrol. Instead the heightened response sent the wrong message to states around the South China Sea that Taiwan is courting. Not a wise move.

Tsai could also have gently raised UN issue to rally the populace and refocus the debate away from the sovereignty issue and back to a real problem, Taiwan's international isolation. She could have said: "We would love to comply with the Tribunal's ruling under UNCLOS but, shucks, we are not in the UN. Shame, ain't it?" This was especially possible since the Tribunal had referred to the government as the "Taiwan Authority of China"...

The hostility towards the ruling in Taiwan is stupid and short-sighted (imagine if the court had sided with China and declared the 9 dash line valid -- would Taiwan have been better off? No! As a longtime observer put it, Taiwan ought to be thanking Philippines for bringing the case in the first place.

POST COLONIALITY
Much of the discussion on Taiwan as a post-colonial society focuses on domestic issues of transitional justice, such as the Red Cross (which came up this week with legislation removing its favored status) and KMT assets. But every state in a post-colonial transition faces this problem: given that out territory is the invention of our colonial master in agreement with other faraway colonial states, and inherited from that master, what is our territory?  Itu Aba/Taiping Island is the kind of leftover post-colonial sovereignty issue that many former colonial states confront, from monumental cases like the India-Pakistan problem to little problems few have heard of, like Swain Island.

In the Taiwan case this is a special problem, since the ROC is a shell that keeps China from attacking Taiwan. I expect that sooner or later Taiwan will have to give up its ROC territorial claims (like Mongolia!), especially the Senkakus. It would be a good idea if the Administration had a more well thought out response next time.

UPDATES: ROC has never claimed an EEZ based on Taiping.

Articles and References:

• Tribunal's Award Original Text (501 pages)
• Timeline of events
• NY TIMES: Taiwan, After Rejecting South China Sea Decision, Sends Patrol Ship
• Taipei Times: Bellicose KMT calls for Itu Aba Action
• Manila Times: After the UN Ruling, It's US vs China, Round 2
• New Bloom: Looming Trouble in the South China Sea
• New Bloom: Why would Tsai Ing-wen send a warship to the South China Sea
• The Diplomat: South China Sea Ruling is Actually a Good Thing For Taiwan
• Taipei Times: Taiwan's rejection of ruling a mistake, US pundits say
• National Interest: Bill Hayton says China's South Sea Claims were always about emotion, not history
• Nikkei: Ruling boosts US strategy in SCS
• CPI: South China Sea China Waives the Rules
• Bloomberg: China finds ally in Taiwan Leader's Rejection of Tribunal's Decision
• FocusTaiwan: Taiwan protests tribunal's use of Taiwan authorities of China
• FocusTaiwan: Taiwan does not accept the Tribunal's decision
• ROC government position on ruling
• Brookings: Jeff Bader, likely key Clinton Administration official, on What the US and China should do in the wake of the South China Sea ruling
• WSJ: Beijing offers to negotiate
• M Taylor Fravel: Five Reasons China Cares so much about the South China Sea
• Foreign Policy: Thoughts on the Hague Tribunal's Ruling
• Nikkei: Beijing blames Japan
• News Lens: Navy to protect fishing industry
• WaPo: Chinese state in meltdown over decision
• Majority of Chinese actually supported arbitration
• Democrats in US push UNCLOS ratification

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