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  • Taiwan and the Arbitral Tribunal’s RulingResponses and Future Challenges
  • Anne Hsiu-An Hsiao (bio)

The Arbitral Tribunal’s award of 12 July 2016 was overwhelmingly in favour of the Philippines and denounced by China. Although the Republic of China (ROC, or Taiwan) was not a party to the arbitration, it was dragged into the proceedings, as the issue of the status and entitlements of Itu Aba — the largest geographical feature in the Spratly Islands, occupied by Taiwan and also known as Taiping Island — gained prominence in the course of the Tribunal’s deliberations.

The Tribunal’s award declared that Itu Aba is a “rock” and not an “island” as defined by Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS).1 The ROC government — headed by Taiwan’s new President and Chair of the Democratic Progressive Party (DPP), Tsai Ing-wen — immediately objected to the ruling and declared that it had no legally binding force on the ROC. The government’s response echoed that of China’s, with whom relations have run into problems since President Tsai took office in May 2016. This article makes two propositions: first, that the immediate response from Taiwan was aimed at three audiences; and second, that the ruling has created challenges for Tsai’s policy on the South China Sea. [End Page 362]

Taiwan’s Kaleidoscopic Responses to the Arbitral Ruling

On the same day that the award was issued, Taiwan released two official statements rejecting it. One of the statements came from President Tsai’s office, and made three assertions: first, that the ROC has sovereignty over the South China Sea islands and is entitled to all rights over those islands and their relevant waters under international law and the law of the sea; second, that because the Arbitral Tribunal did not invite the ROC to participate in the proceedings or solicit its views, its decisions which impinge on ROC’s interests and undermine its rights, particularly those regarding the status of Itu Aba, are not legally binding on the ROC; third, that the ROC urges the South China Sea disputes to be settled through multilateral negotiations, and that it will work with all states concerned on the basis of equality.2

The other statement, issued by the Ministry of Foreign Affairs, gave more specific reasons for Taiwan’s rejection of the award.3 First, that the Tribunal had inappropriately referred to the ROC as the “Taiwan Authority of China” and that the government considered this designation “inappropriate” and “demeaning to the ROC as a sovereign state”. The second concerned how the Tribunal had dealt with the legal status of Itu Aba. According to the statement, this issue was not part of the Philippines’ original submission in January 2013, and that the Tribunal “took it upon itself to expand its authority”. In disregard of Taiwan’s sovereignty and actual control of Itu Aba, and without inviting the ROC to participate in the arbitral proceedings or solicit its views, the Tribunal had denied Itu Aba’s “island” status and the maritime entitlements provided by UNCLOS. The statement also reiterated President Tsai office’s call to resolve the South China Sea dispute peacefully through multilateral negotiations, as well as “in the spirit of setting aside differences and promoting joint development”.4

The two statements were simultaneously aimed at three audiences. The first and most important audience was China. Beijing is deeply suspicious about the new DPP government’s cross-straits and South China Sea policies, and has been watching warily how Tsai would address these issues since she was elected in January 2016. In recent years, the South China Sea and Taiwan issues have become two inter-related “core interests” for China. On the one hand, Beijing’s insistence on Taiwan as an integral part of China, and its firm opposition to so-called “Taiwan independence”, are longstanding. On the other hand, Beijing, which claims to have [End Page 363] succeeded the ROC Nationalist (KMT) government as the sole legal government of China since 1 October 1949, adopted the ROC’s eleven-dash “U-shaped line” published in 1947 to represent its claims in the South China Sea...


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pp. 362-369
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