Why Taiwan and China Agree on South China Sea Sovereignty

 
 

Islands stir up all sorts of passions. Introducing South China Sea territorial disputes to its readers, one Chinese periodical sets forth enthusiastically about how the dazzling white sands of the Spratlys are paired with gorgeous shells, an abundance of exotic and beautiful fish, and pieces of bright coral “red as a young girl’s rouge make-up.” Another publication alters a photograph of one of the larger maritime features by covering it with a set of pasted-on Chinese flagpoles, with the caption: “Lovable national flag! What day, what hour, can you be inserted into the Nine Southern Islands?!“

What’s most remarkable about these undoubtedly arousing discussions of national territory is their date. Both pieces (and many others like them) were published in Republic of China media in 1933, and the foreign invaders mentioned in each are not any of the powers currently contesting Chinese territorial claims, but rather the (then) aggressively expansionist French Empire.

At the time, French seizure of the southern islands was grouped together in patriotic discourse with the Japanese takeover of Manchuria in 1931, and other territorial encroachments by foreign powers with colonial aspirations. Collectively, these losses of what was perceived as Chinese territorial sovereignty, and the lackluster opposition of China’s rulers, were referred to as 国耻—“national humiliation.”

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Today, both political successors to China’s then-government maintain territorial claims over the South China Sea that are based most closely on maps (including clear predecessors of the famous “nine-dash line”) that were first broadly disseminated in these 1920s and ‘30s nationalist protests against French and Japanese attempts to colonize the Spratly and Paracel island chains. There is, in fact, great continuity throughout the legal arguments and popular passions implicated in the dispute, stretching from this period of colonial pressure through the present day. Western powers’ failures to acknowledge and take seriously these continuities may seriously hamper efforts to deescalate regional tensions.

Colonial Legal Structures

Imagine yourself in the middle of the South China Sea at any point in the early 20th century before World War II. It was quite a cosmopolitan place even then. You could travel in any direction and end up in a different country: Head west to French Indochina, south to British Malaya or Dutch Indonesia, east to the American-annexed Philippines, southwest to British Singapore, northeast to Japanese-controlled Taiwan, or, finally, north to China (perhaps passing through British-controlled Hong Kong).

Save Thailand, and a Japan that had rapidly joined the ranks of colonizing Western powers (having declared its intention to “leave Asia,” or datsu-a 脱亜), China was in effect the only Asian state left as an independent polity. This status was, however, extremely precarious. Western states, and then Japan, had long enjoyed extraterritorial rights and control over “leased” territories, and had long justified their conquest of much of the world with a set of legal arguments that were originally crafted precisely to allow the maximum extension of European sovereignty.

The principle of “terra nullius”—or unclaimed land open to be taken by whichever Western power “discovered” it—was the basic concept which allowed conquest of vast swathes of the Americas, Africa, and parts of Asia (and was invoked by both France and Japan in disregarding Chinese claims to control of the South China Sea island chains). This legal principle was theoretically universal: whoever discovered unused territory could lay claim to it. But in practice, it led to highly particular effects. Only European “discoveries” counted, and prior “native” uses to or claims over thus-discovered territories were generally disregarded.

The principle of the “free sea” operated in a similar manner. Indeed, the concept was first presented in its modern form by the great jurist Hugo Grotius precisely to justify the activities of the Dutch East India company (VOC) as it sought to end the Portuguese monopoly over trade in Asia. Grotius’ innovation allowed powerful companies like the VOC, or anyone else who could reasonably claim to represent a European sovereign, to wage “private war” against whomever interfered with their commercial activities—be they other Europeans or locals who mistakenly thought they had the right not to trade away their land and resources (or to ban foreign imports such as opium).

By the 1930s, China was used to these and other neutral-sounding arguments being deployed in ways that led to denials of its status as an equal Westphalian sovereign power. The French and Japanese attempts to conquer the South China Sea were seen as one more such case; Chinese claims of frequenting and exerting control over these island chains for centuries were not only rejected, they were not even granted the opportunity to have a legal or diplomatic hearing. This led to voluble calls among Chinese nationalists to “take back sovereignty” over the region, and those calls have never stopped. Today’s arguments on both sides of the Strait, right or wrong, are rooted in that decolonizing movement.

The Best Chance for Multilateralism?

Today, China and Taiwan both continue to articulate claims to sovereignty over the Spratly and Paracel island chains. The modern form of these claims stems from the above-noted early 20th century nationalist literature. Just recently, Taiwan has sought to further publicize the issue by inviting foreign media to Itu Aba (the largest feature in the entire South China Sea, and one specifically, formally claimed by the Republic of China in 1946, when most of today’s other disputants were still Western colonies) in order to prove its status as an “island” as opposed to the Philippines’ arbitration claim that it is a mere “rock” under UNCLOS, and also by issuing an official position paper on its sovereignty claims in general.

Holding fresh water, crops, a hospital, an airport, and a permanent population of a few hundred Taiwanese military personnel, Itu Aba may very likely qualify as an “island” under UNCLOS, and thus generate territorial waters and an exclusive economic zone (EEZ). That EEZ, in turn, would cover a fairly wide swathe of the disputed South China Sea territories, including all of China’s recently-constructed artificial islands. This is one reason why the artificial island issue is, in and of itself, largely a red herring.

Treaties like UNCLOS leave many things undecided—which legal issues must be determined first in order to arbitrate a dispute, for example, or definitional questions like the “island/rock” distinction—because they are multilateral agreements among equal powers, whose practices then gradually create further norms of interpretation. Divergent practices by one or a handful of powers (like China’s views, shared with several other states, over limitations on military freedom of navigation in EEZs) do not per se represent wholesale rejections of UNCLOS, let alone “international law” as a whole. Arguing otherwise is disingenuous, for international law has always consisted of a plurality of interpretations.

China and Taiwan will continue to assert their claims for the foreseeable future, at minimum based on a few fairly clear-cut “islands” (France and Japan, among others, certainly treated them as such when trying to permanently annex them) which, legally, must now belong to someone. In China’s case, those claims are now often presented in a strategically ambiguous manner, which leaves unclear their exact relation to UNCLOS and its set of legal concepts—a major factor contributing to regional uncertainty. Taiwan, because it is a Western-friendly power with no discernible expansionist ambitions, has every interest in further specifying its sovereignty claims and eventually committing them to some kind of fair and neutral arbitration with other claimants. But when U.S. or other commentators argue that the issue of sovereignty should be ignored, or press the “island/rock” distinction in order to use UNCLOS as a back door to eliminate the possibility of China or Taiwan ever having their sovereignty arguments heard and vindicated, the chance for multilateral dialogue is wasted. Like “terra nullius,” these particular forms of lawfare can operate to silence disputants rather than actually engaging them in a discourse of justifying principles.

The “freedom of navigation” and “island/rock” principles, among others, appear universal. But they are only ever defined in particular ways, by particular states, pursuing particular interests. A true ‘rules based global order’ is one in which no state—be it China or the United States—can act as the unilateral enforcer or interpreter of these ostensibly universal rules. What is needed is more dialogue, including over the issue of sovereignty: if we can manage that as a global community, then we may really be “post-colonial.” Taiwan’s arguments should thus be considered very carefully.

Ryan Mitchell is a Mellon Foundation Humanities Fellow and Ph.D. in Law candidate at Yale, where his research focuses on political philosophy and international law. He is also an attorney admitted to the State Bar of California.

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