Some countries may want to use the verdict to needle China, but the neighbourhood has reacted cautiously, to ensure that any gains from political negotiations are not undone by the award.
Taipei: Extraordinary developments have marked Taiwan’s political landscape this week, with the China Post and Taipei Times, the country’s two English language dailies, leading with the story of a “fishing expedition” to the Itu Aba (Taiping) island. The expedition to Itu Aba, comprising three fishing vessels, sought to underline “Taiwan’s sovereignty and fishing rights” over the island, both of which have been questioned by the recent arbitral award in the South China Sea dispute between China and the Philippines. The expeditioners, remarkably, have acted in direct contravention of guidelines issued by the Taiwan defence ministry after the tribunal’s verdict, requiring civilians to notify the government of their travel to Itu Aba 45 days in advance. “Angered” by this directive, a group of Taiwanese fishermen planned the visit as a show of strength and the expedition has gained such public support that the country’s coast guard allowed it to land on Itu Aba’s pier yesterday. Meanwhile, the opposition has demanded the resignation of the cabinet spokesperson who suggested that such expeditions “will not increase” Taiwan’s sovereignty over Itu Aba.
As Asian countries grasp the implications of the South China Sea award, many governments in the neighbourhood have appealed for calm, realising the potential the verdict has to stoke nationalist movements across the region. Taiwan’s representative to the Philippines, Gary Song-Huann Lin, suggested last week that the “PCA award has ushered in the end of a stable Pacific era and the rapid rise of Chinese nationalism”. But he also criticised the award as “unacceptable and unfair”. Taiwan’s predicament is understandable: in one fell swoop, the five-judge tribunal ruled that the Itu Aba island was nothing but a “rock” under the UN Convention on the Law of Sea regime, that generated no sovereign rights for Taiwan. Taiwan was, in this respect, dragged before the tribunal against its will, and forced to intervene in the middle of the arbitral hearing.
Itu Aba — under the control of Taiwan since 1946 — is part of the Spratly group of islands, which the Philippines claimed before the Hague tribunal as within its exclusive economic zone (EEZ). Manila, sensitive to its political relations with Taipei, allowed the latter to submit an affidavit, but maintained that Itu Aba generated no maritime entitlements. As a result, Taiwan found itself making extensive legal and geological arguments to show why Itu Aba was no mere “rock”. As the Philippines noted, the arbitral verdict prompted Taiwan for the first time to formally claim sovereignty over a region that was beyond 12 nautical miles from its shores. More consequentially, Taiwan found itself on the same same side as China. During the proceedings, Judge Rüdiger Wolfrum asked:
“My question is — and I know this is a touchy issue — can you really distinguish in this respect between the People’s Republic of China and, on the other side, Taiwan? Isn’t Taiwan acting on behalf of China too?”
Taiwan is, quite literally, caught between a “rock” and a hard place. Asserting political sovereignty is a routine matter for governments, but it is altogether different to have them legally tested. Many of the competing claims and counter-claims in the South China Sea have been based on the possession of disputed islands, which may be difficult to justify in international law. The implications of the award for other disputes are just as perplexing: scholars have noted how the Hague verdict may weaken Japan’s claim to the Senkaku islands, which like Itu Aba, could just be a rock under Article 121(3) of UNCLOS. New Delhi’s own response to the verdict may have rushed past its implications for the maritime boundary dispute between India and Pakistan. Another international lawyer argues that the “Itu Aba decision may have exposed the soft legal underbelly of some of the huge EEZ claims of a number of countries”, including the United States.
In addition to the legal implications of the verdict for political claims, there is also increasing concern in the region about its impact on nationalist movements. The “symbolic” expedition by Taiwanese fishermen, an exercise that the government would rather have seen avoided, is a case in point. Last week, the police in Hanoi detained protestors who had organised a rally to show solidarity with the Philippines over the South China Sea ruling. Chinese authorities clamped down on online channels after the award was announced, which served the dual purpose of limiting the spread of its news, but also censoring posts that were “excessively nationalist”. After posts calling for “war” appeared on Weibo after the verdict, the Great Firewall censored all terms containing the words “South China Sea”.
The ASEAN joint statement on South China Sea disputes released this week, eschewing any mention of the arbitral ruling itself, reflects this concern. China would likely have exerted pressure on its allies in the bloc to remove adverse comments, but as Prashanth Parameswaran notes, the ASEAN foreign ministers communique actually took a step back, removing a reference to “full respect for legal and diplomatic processes”, that had appeared in previous ASEAN statements. The bloc instead referred (again) to the need for articulating a binding code of conduct on the South China Sea.
The political and legal uncertainty triggered by the South China Sea award has prompted the region to assess its diplomatic options. The Philippines has led the way, with President Rodrigo Duterte approaching former president Fidel Ramos with a request to be an envoy to China on the issue. In his state of the nation address on Monday, Duterte declared that the award was “an important contribution to ongoing efforts to pursue the peaceful resolution and management of our disputes”. His remarks indicate a lack of appetite for grandstanding around the South China Sea dispute. While some countries may be interested in using the verdict to needle China, the neighbourhood as a whole has reacted cautiously to the verdict, to ensure that any gains from political negotiations are not undone by the award.
Arun Mohan Sukumar is at the Observer Research Foundation, New Delhi.