HAS TAIWAN IMPLICITLY CLARIFIED THE U-SHAPED LINE?

by Chi-Ting Tsai/ 6 May 2016 / ASIA MARITIME TRANSPARENCY INITIATIVE

The Philippines filed an arbitration case in 2013 against China before the Permanent Court of Arbitration to challenge, among other things, Beijing’s nine-dash line claim to most of the South China Sea. Although the legal character of the nine-dash line is not a new dispute between China and its neighbors, it has become a significant foreign policy and international legal headache for another South China Sea claimant: Taiwan. This is because China claims that its nine-dash line is a successor to the U-shaped line map issued by the Republic of China (ROC) in 1947. By doing so, China both asserts its sovereignty over Taiwan and diverts some international political pressure from Beijing to Taipei.

Against this background, Taiwan faces international pressure over whether it should explicitly clarify and define the legal character of the U-shaped line in accordance with the UN Convention on the Law of the Sea (UNCLOS). For Taiwan, the interpretation of the U-shaped line is not merely a legal issue. It involves how Taiwan balances its strategic relationship with both the United States and China. If the Permanent Court of Arbitration either invalidates the Chinese nine-dash line or narrows the possible legal interpretations of the line, it will provide other claimants and partners like the United States with powerful political leverage against Beijing. This in turn has led to pressure on Taiwan to clarify its own claim of the U-shaped line.

But is such a clarification really necessary? Taiwan has never explicitly made excessive maritime claims in the South China Sea, and is in fact constrained from doing so by its own actions.

Since the issuance of the 1947 map, Taiwan has never claimed a historical entitlement to all the waters within the U-shaped line. As a matter of international law, this means that Taiwan already adheres to the legal principle of mare liberum, which stresses freedom of navigation and that the ocean cannot be occupied. Therefore, it is hard to imagine Taiwan would claim the waters within the U-shaped line as its exclusive territorial.

Taiwan’s legal options vis-à-vis the U-shaped line are also constrained because in 2005 Taipei suspended the 1993 Policy Guidelines for the South China Sea. The guidelines” were an executive order issued by the Executive Yuan (Cabinet). Their original function was to coordinate each ministry’s functions relevant to the South China Sea and consolidate them under one legal instrument. The preamble of the guidelines says, “(The ROC) has jurisdiction over the maritime area within thehistorical waters line and enjoys all the rights and interests within it.” Although the preamble does not explicitly identify this “historical waters line,” there is no line but the U-shaped line on Taiwan’s official map of the South China Sea. By suspending the guidelines in 2005, Taiwan discontinued its claims to historical waters. Legally speaking, though “suspension” implies that the guidelines might be restored in the future, the longer they remain suspended, the more difficult such restoration will be. Even were the guidelines and their provisions for a historical waters line restored, they would be attacked under the principle of estoppel in international law. Read more…

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