Tuesday, August 11, 2020

Taiwan's Claim to a South China Sea EEZ.

I looked at some discussions of the Permanent Court of Arbitration decision on the South China Sea, which is the basis for five eyes + Japan policy with respect to China's exclusive economic zone claim on the South China Sea. The key issues seem to pivot on one island that belongs to Taiwan that one rarely hears discussed, Taiping or Itu Aba. The PCA decision is styled as an arbitration adjudication of competing claims of the Philippines and the PRC in the South China Sea. The PRC did not participate in the arbitration and doesn't recognize the Court's decision. The court claimed it didn't decide any matter of sovereignty but it did. It discredited Chinese claims to an extensive EEZ in the South China Sea.

Taiping Island, also known as Itu Aba, and also known by various other names, is the largest of the naturally occurring Spratly Islands in the South China Sea.[3][4][5][6][7] The island is elliptical in shape being 1.4 kilometres (0.87 mi) in length and 0.4 kilometres (0.25 mi) in width, with an area of 46 hectares (110 acres). It is located on the northern edge of the Tizard Bank (Zheng He Reefs; 鄭和群礁). The runway of the Taiping Island Airport is easily the most prominent feature on the island, running its entire length.

The island is administered by the Republic of China (Taiwan), as part of Cijin, Kaohsiung. It is also claimed by the People's Republic of China (PRC), the Philippines and Vietnam.

https://en.wikipedia.org/wiki/Taiping_Island

Contrary to the contentions of the PCA which purport to find that Taiping Island is an "uninhabitable rock," Taiping is a habitable island that can and does support human habitation. This is the argument of Taiwan.

Ministry of Foreign Affairs, Republic of China (Taiwan) 中華民國外交部 - 全球資訊網英文網
Taiping Island is an island, not a rock, and the ROC possesses full rights associated with an exclusive economic zone and continental shelf in accordance with UNCLOS...

https://www.mofa.gov.tw/en/News_Content.aspx?n=8157691CA2AA32F8&sms=4F8ED5441E33EA7B&s=174B7FC38E9C9F9B

So US arguments about PRC "aggression" in the South China sea appear to be based, at least in part, on a poorly reasoned "arbitration" relying on crafty wordsmithing which finds that Taiping is a rock rather than a habitable island. There are a few expert opinions published on the web which question the reasoning of the decision. A simple perusal of the Wikipedia entry on Taiping renders the contention that it is not a habitable island a hard sell. Taiping Island is the largest island of the Spratly Islands.

Once one realizes that Taiping is a habitable island capable of supporting a small community, the whole US discussion about Communist China's "unsupported" claim to the South China Sea EEZ within 200 nm of that island falls apart. In the west, the historical claim of China to the nine dash line is ridiculed as some ridiculously feeble claim without a discussion of the historical Chinese presence in the region and their claim to Taiping Island. Their claim to economic hegemony in the Spratly's has a basis on an exclusive economic zone around the island of Taiping. The diplomatic history during the nineteenth and twentieth centuries also supports their historical claims to an internationally recognized Chinese interest in the South China Sea.

Typically, the US media focus on the "artificial islands" that the PRC is building in the South China Sea, and claiming that they interfere with "freedom of navigation." Therefore the US claims it's naval and air operations in the South China Sea are "freedom of navigation operations." Yet, the actual bone of contention is the unwillingness of the United States, the five eyes partners, and the local states with sovereignty or EEZ claims contrary to those of the Chinese, to concede exclusive economic exploitation rights to China. ROC sovereignty of Taiping Island is a valid basis to claim an exclusive EEZ as far as 200 nm from that island. In addition, the PRC sovereignty over Woody Island, the largest island in the Paracels gives China a strong claim to another 200 nm EEZ. Vietnam disputes PRC sovereignty over Woody Island.

One wonders what sort of mental gymnastics would be required to conclude that Woody island is not a basis for a PRC EEZ in the South China Sea. While the PCA's ruling is lauded as a legally sound one in the west, the fact is that it is not based in law, but rather loosely construed equity considerations such that it is not equitable for rights to such an extensive economic maritime domain to be determined by such a small geographic feature. Also, the distance of Taiwan to Taiping was a consideration, "giving a remote country rights." Clearly this is specious reasoning. The real party in interest is the sovereign of China, not so far away, wrongfully deprived of its legal interests during the imperial era, and having legitimate economic and military interests in the "South China Sea." Because the west and the smaller states who can not practically assert their interests against China don't like the reemergence of Chinese power in the region, they seek to deny the normal definition of words and impose a rule of "equity" which just happens to favor western oil and gas interests. These commercial goals dovetail with US military objectives of containing Chinese naval power and denying them offshore bases to defend their perimeter and extend their ability to project maritime power. The principle of equity in law essentially means that the legal definitions of record don't provide a suitable remedy from the jurists point of view so we are going to reinterpret them to do what's fair. Fair in who's eyes? Fair in the eyes of the "remote" naval hegemon operating in the traditional role of imperial gunboat diplomat.

Artificial islands do not affect the boundaries of the economic zones in any way. The US Navy routinely closes within 12 nm of the artificial islands China has created merely as a form of confrontation. There is a loophole in UNCLOS concerning artificial islands. It seems when the convention was negotiated no one anticipated the creation of artificial islands in international waters. So artificial islands don’t have territorial buffers around them. US warships and aircraft can approach as close as physically possible to these artificial islands. This is clearly something that could be negotiated to create a safe zone around the islands and their airspace. There is no significant impact on “freedom of navigation” or territorial claims to economic exploitation of the area outside the immediate limit whether it is established at 12 nm or less. A terminal control area or similar airspace could also be recognizable around and above the artificial islands. The only colorable argument against the presence or construction of an artificial island would need to based on a finding that it was constructed in the EEZ of another state. A finding that Taiping was an island would have created another untenable situation the PCA apparently sought to avoid, creating an extensive EEZ for the ROC which would not avoid the PRC claim but only postpone its recognition without lowering the potential for confrontation. The PCA finessed the situation by defining the principal problem into non-existence with a legal fiction contrary to the common meaning of words.

As a practical matter the overlapping national claims to economic zones are a serious problem, that can only be negotiated among the affected parties. The US position actually reflects the interest of western corporate interests who wish to be free to exploit mining rights in South China Sea under the national flags of non-Chinese states with competing South China Sea claims to such areas. So the FON claims of the US are to a large extent a wedge issue serving as a pretext, under the color of "international law" for physical confrontation to define interests that the traditional colonial powers can exploit. The risk of war is obvious. The Permanent Court of Arbitration decision is a contrived decision which provides an inadequate base for resolution of the complex competing claims in the South China Sea. It is clear that it will not ever be acknowledged by the PRC.

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