The South China Sea Disputes

The following sections are included:

• Preface
• About the Authors
• Contents

Based upon the Republic of China’s (ROC) Ministry of Foreign Affairs (MOFA) archives, United Nations’ Treaty Series, Japanese wartime archives collected in Japan’s Asia Historical Material Center, publications collected by pre-1945 Taiwan Governor-General Office’s Library, and related studies, this chapter points out how the Taipei Treaty (TPT) could be a more effective legal basis to achieve the goal of Hague Arbitration (HA) of July 12, 2016.

Utilizing substantial archival materials, this chapter examines the process through which the Nationalist government reasserted Chinese sovereignty over the islands in the South China Sea, including China’s stationing of troops on the Dongsha Islands, Yongxing Island, and Taiping Island. Well-prepared militarily, economically, and diplomatically, the Nationalist government achieved this strategic goal after overcoming various difficulties including insufficient ships and funds, unfavorable weather and maritime conditions, and the obstruction of the French colonial government in Vietnam. The Nationalist government also sent technicians to survey the islands and map out the sphere of Chinese maritime territory in the South China Sea, and it built two weather stations. These actions were publicized on December 1, 1947. During this process, the government of the United States adopted a policy of acquiescence due to its close collaboration with China. When the French government occupied one of the Xisha Islands and attempted to take firmer actions, the US and Britain pressured France to make concessions to China, which led the French government to seek a diplomatic solution.

In an endeavor to establish certainty over territorial and sovereignty claims, research at National Archives could prove invaluable. A period of research, whether in your nation’s capital city or elsewhere, at home or in other countries, that may or may not have trading relations or administrative linkages, could uncover a wealth of information contained in the original documents such as agreements, Memoranda of Understanding, treaties, and particularly, in files maintained by the relevant departments and ministries such as foreign and home affairs and trade. Examples of where such research has produced documents that were presented at international courts and arbitration tribunals to prove sovereignty claims include the cases in which Malaysia was party to disputes with Indonesia and Singapore at the International Court of Justice, in 2002 and 2008, respectively. In January 2017, reports emerged that Malaysia had “discovered” three important documents at the UK National Archives that had become available to the public. Such a discovery may go some way forward to turn a decision set by the ICJ in 2008 in Malaysia’s favor. This chapter demonstrates, illustrates, and discusses the manner in which research at national archives, public and private libraries, and other institutions that are depositaries of primary documents, and by inference also secondary, may support claims to territory may be conducted.

This chapter examines American diplomatic correspondence concerning the claims of its treaty ally, the Philippines, to the Kalayaan Island Group in the Spratly Islands region of the South China Sea. These communications evince how US policy on the disputed region evolved over the decades, and show how the Philippines established and maneuvered its claims independently of the US.

The status of the U-shaped line (also known as nine-dash line or the eleven-dash line) has been challenged in the international community since Mainland China objected to the Malaysian and Vietnamese joint submissions by submitting the note verbale to the UN Secretary-General on May 7, 2009. It is known that the nine-dash line succeeded to the status of the U-shaped line claimed by the Republic of China (ROC). Officially, the U-shaped line was first drawn in the Location Map of the South China Sea Islands which delineated the scope of Chinese government’s territory and waters in the region on December 1, 1947. When the map was released, no nation publicly raised any opposition. In addition, at the time the Location Map of the South China Sea Islands was published, the Law of the Sea was still the regime that existed prior to the enactment of the United Nations Convention on the Law of the Sea (UNCLOS).

Some international scholars thought that Mainland China never clarified the nature of nine-dash line of its claim. The ROC’s sovereignty claims and practice on the South China Sea (SCS) maritime territorial disputes would be relevant to Beijing’s statements and influence the arbitration initiated by the Philippines in early 2013. Therefore, the ROC’s clarification with respect to the status of the U-shaped line has drawn significant attention. Since the Democratic Progressive Party has won the 2016 presidential election, any responses to the SCS arbitral award (the Philippine vs. Mainland China) or claims asserted by the Tsai Administration shall be a high-profile issue. To safeguard the ROC’s national interests, Taiwan is seeking to solidify its position in contentious SCS and looking forward to participating in regional negotiation and collaboration with claimant countries in the future.

The relation between the US and China has been complicated by a power transition process, or power struggle, in recent decades, triggered by the economic rise of China. However, the two countries managed to cooperate with each other in many realms, including trade, climate change, strategic interaction, regional issues, cyber security, and space projects. Nonetheless, the competition does not seem to just fade away as the tension between China and the US in the South China Sea (SCS) escalated throughout 2016. What is worse is that the possibility of military conflict between the two due to mutual distrust, intensified security competition, formation of anti-Chinese alliance, and competition for the dominance of the region lingers on. Interestingly, the Trump administration recently decided to suspend patrols in the SCS so as to have China side with the US in dealing with the situation in the Korean Peninsula. It is understandable that the threat posed by North Korea’s nuclear weapons development may require temporarily setting aside contentious issues in SCS in exchange for China’s help. Nevertheless, it is also understandable that the rivalry between the two powers is here to stay.

The South China Sea Arbitration between Philippines and mainland China was ruled in favor of Philippines on July 12, 2016, given the situation that the mainland China did not participate the arbitral proceeding.

Article 9 of Annex VII of UNCLOS sets forth that, before making its award in situation of non-participation, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

This chapter analyzes and concludes that the tribunal had not discharged its duties under this provision upon issues of whether it had jurisdiction over the dispute and the claim was well-founded in fact and law. Therefore, it is not valid and cannot have any precedential value, nor can it create any binding force.

In particular, lacking of direct evidences is, inter alia, one of the major reasons where the tribunal failed to self-satisfy its duty. This chapter points out that had these direct evidences relating to Taiping Island been provided by the indispensable third-party Taiwan to the tribunal, mainland China would have had a more favorable position in this case.