Ma's Gamble: Taiwan's East China Sea Peace Proposal

     In November of 2012, The Government of the Republic of China (Taiwan) released its  East China Sea Initiative, in which it made a seemingly innocuous offer to all claimants of the  disputed islands (Senkaku/ Diaoyutai) within the East China Sea to settle their differences in a peaceful manner.  On the surface, such a proposal  by the Ma Administration would seem to have little downside. Taiwan has been locked in a decades-long struggle regarding its  "international space" against the People's Republic of China (PRC), and the Ma Administration has looked for ways  to expand Taiwan's  "diplomatic footprint" without incurring the ire of China--and spoiling what Ma sees as the improvement of ties between the two countries.  By sponsoring a peace proposal for which itself is a claimant (along with Japan and the PRC), has  Ma  shown some political prowess by thrusting Taiwan into the international spotlight as a state not only  separate from the PRC; but one that can be seen as responsible and open to dialogue, as his East China Sea proposal would seemingly suggest?  Or has he actually complicated Taiwan's already difficult position in the East Asian diplomatic arena?

     First, there are a few important  aspects regarding the East China Islands dispute to note:

1.  There are three claimant states: Japan (which currently holds administrative control over the islands), The People's Republic of China, and the Republic of China (Taiwan).  The number of claimant states drops to two if one were to adhere to the PRC claim that Taiwan is actually a part of the PRC.  The number of claimant states drops to one from the  Japanese position, as it does not officially recognize the territorial dispute. 

2.  The issue of the Senkaku/Diaoyutai islands is one that is dear to President Ma.  In his doctoral dissertation at Harvard, Ma argued that Japan should "return" the disputed islands back to the ROC.

3.  The primary argument from the Ma administration in which it bases its claims on legal ownership of the islands is rooted in his political party's ideology.  The Kuomintang, or (KMT) still govern Taiwan on the principle that the party is not only the legal government of Taiwan, but the legitimate and true government of the  current geographic area of the PRC as well, as Ma himself has stated in the past .  Therefore, to understand the KMT claim, one must take into account territorial disputes that occurred prior to the removal of the KMT from power in China in  1949, and to see them in the context that the party does.

   The Gamble

     In order to explain why this proposal is potentially disastrous for Taiwan, let's explore some of the specifics of  Taiwan's East China Sea Peace Initiative.

 "The Republic of China therefore solemnly calls on all parties concerned to resolve disputes peacefully based on the UN Charter and relevant provisions in international law"

     As previously stated, "all parties" include only Taiwan, Japan, and China.  The official Japanese position  states that the islands have been under Japanese jurisdiction since 1885, and this fact was without dispute until after 1968, which followed a United Nations report stating the possibility of significant petroleum reserves in the seas surrounding the islands.  Both Taiwan and China state that under various treaties  signed after World War II, the islands were to be returned to China.  It should be noted that the PRC considers itself the legitimate successor to the ROC government in China, therefore all prior ROC territorial claims were inherited by the PRC in its inception in 1949. The Taiwan (KMT)-PRC basis of ownership is important to note due to the fact that the claims are based on the same identical argument of historic ownership.  It is also interesting to note that the KMT is looking to base dispute resolution on the UN Charter, an organization that expelled  the ROC government (and for all purposes of representation, the people of Taiwan) in 1971 in favor of the PRC as the sole representative for the state of China.  Secondly, as stated prior, Japan does not officially recognize any dispute regarding ownership of the islands, and if it maintained its current position, would not agree to talks on the grounds that no dispute even exists.

"With respect to the Diaoyutai issue, the government of the Republic of China has consistently affirmed its position of “safeguarding sovereignty, shelving disputes, pursuing peace and reciprocity, and promoting joint exploration and development.”

      While this statement would seem assuring upon initial examination, there are myriad areas of concern. Where Ma sees himself as offering the claimants an olive branch, Tokyo could see such an offering as a collaboration between China and Taiwan. Japan only needs to look to recent PRC behavior regarding territorial disputes in the greater South China Sea region, and how Beijing has handled such issues diplomatically.  It's refusal to collectively negotiate   with the Association of Southeastern Asian Nations (ASEAN) regarding territorial disputes and maritime code was done under the idea that it would only negotiate bilaterally regarding such matters, with the intent to use its economic and military means as muscle at the negotiating table, with its handling of the Scarborough Shoal territorial dispute with the Philippines as an example.  If Japan elected to perform a drastic diplomatic "about-face", and accept Ma's peace talk proposal, and the PRC were to agree as well, it would likely include a cruel irony for Taiwan's leadership: A diminished role among the claimants.


     The Beijing Wedge 

     If Japan were to show any signs of willingness to negotiate according to Ma's proposal, Beijing would be wise to seize the moment for the simple reason that it could produce a windfall of diplomatic benefits.  It must be assumed that judging by Beijing's prior actions regarding both limiting Taiwan's political space in the international arena when all possible and its strong preference to negotiate bilaterally, that it would not agree to have Taiwan in such negotiations under the title of a separate claimant from the PRC.  In addition, China does not even see the ROC as a separate claimant  , as an official statement shows:

"The two sides (emphasis added) should handle the Diaoyu Islands dispute properly in order to ensure that bilateral relations remain on a track of healthy and stable development." said Jia, chairman of the National Committee of the Chinese People's Political Consultative Conference (CPPCC), while meeting with former Japanese Prime Minister Yukio Hatoyama."


 Due to the fact that both the PRC and ROC (Taiwan) base their claims on identical grounds, China sees the ROC claim as bolstering their own, and would stipulate that Taiwan be under the guise of some sort of unified banner and title (ie "Greater China") in order to maintain its historic geographic claim.  It is equally as likely that President Ma would agree to these terms in some shape, as the KMT maintains in  its ideology that it too is part of a "Greater China".  Although the talks would likely produce little in terms of a consensus, Beijing would gain a great deal by merely sitting at the table.  It's attempt to portray its "peaceful rise" would be enhanced by such talks, and its painstaking attempt to convince the world of a One China with Taiwan included would be bolstered by a unified front with Taiwan regarding their claims of the islands.  Taiwan would likely be seen by many states in the region as the newest "Cambodia" to be under the thumb of Beijing.  Perhaps more importantly for Taiwan, it could be seen by its long time allies, Japan and United States, as moving further into Beijing's sphere of influence and thus becoming an unreliable partner; a feeling that has already begun to creep into the minds of some American law makers .


Alternatives for Taiwan

     It is understandable that Ma desires not only increased international space for Taiwan, but to protect the interests of his constituents as well (fishing, mineral rights etc), as any national leader would.  Yet the calculations and philosophy behind the KMT's pursuit of diplomacy appear to be pushing Taiwan away from its traditional allies, and closer towards China.  The main opposition political party to the KMT, the Democratic Progressive Party (DPP),  has taken an alternative to the Ma Peace Initiative.  Michael Fonte, the Washington Liaison for the Democratic Party, says that he believes that the DPP's position was best articulated by DPP Chairman Su Tseng-chang while on a recent visit to Japan to meet with Japanese lawmakers, stating:

"The DPP holds to the position that Taiwan has sovereignty over the islands, based on the geological formation of the island chain and the historical fishing areas, but that the DPP values the Taiwan-Japan friendship deeply and fully understands that the US-Japan Alliance is a fundamental support Taiwan's security"

DPP Chairman Su

Fonte also states that Su has called for dialogue, negotiations over fishing rights, and joint exploration.  There also appears to be a definitive change in foreign policy approach from the KMT, in that Fonte says that Su has spoken about Taiwan being "integrated into the emerging regional security architecture as well as calling, in parallel with (Japanese Prime Minister) Abe's "diamond" democratic allies concept, for a democratic alliance in the region." Although it is not likely that a DPP-led government in Taiwan would abandon and/or reverse  the economic and cultural links to China that Ma has carefully cultivated; it would likely be more cautious in its approach towards dealing with China, and look to enhance the Taiwan-Japan-American partnership that has been in place for decades. Regarding the East China Sea, the DPP sees the KMT Diaoyutai-Senkaku claims as being rooted in antiqued geographic claims, and would likely weaken China's historic claims by breaking from them in favor of a Taiwan-centric historical/geographical approach if given the opportunity.  While Ma's proposal is intended to give Taiwan enhanced diplomatic space in which to breathe; if the present trend continues,  the likely scenario is having its space diminished, and in the process seeing its two most important allies losing trust in Taiwan's ability to separate itself from China's sphere of influence.























     



     


     

    

     

    

UPDATE: Taiwan's Quest for a Modernized Submarine Fleet

U.S. Congressman & Chairman of the House Foreign Affairs Committee Ed Royce (R-CA) 

     On February 10th, Congressman Ed Royce spoke from his new district office in California regarding his recent trip to Asia, which included Taiwan.  Of particular interest to this author were his comments regarding Taiwan's need for a modernized submarine fleet.

 “Taiwan has a need for upgrading or updating their submarines. We are working at making this happen, trying to introduce legislation. We are also assisting some of the needs of the Taiwanese Air Force.”    -Congressman Ed Royce (R-CA) 

     Two weeks ago, in my two-part analysis regarding Taiwan's desire to upgrade its submarine fleet, I speculated that despite the seemingly dead issue of a  U.S.-Taiwan submarine sale in some form; there seemed to be some "behind the scenes" negotiations taking place.  My reasoning behind this was twofold:
First, it is unlikely that the Congressman would have spent one of his two days in a Taiwanese naval yard near Kaohsiung looking at Taiwan's antiqued submarine fleet without there being some sort of tacit message behind the move.  Secondly, it is equally as unlikely that Taiwan's President Ma would come out publicly and state Taiwan's need for a new submarine fleet unless he felt confident that this sale could be achieved--Taiwan's leaders  have been embarrassed previously by  U.S. Presidential Administrations'  refusal to sell various advanced weapons platforms that were requested.  There is no definitive time table known for when Rep. Royce will introduce such legislation to the House.

You can read Part 1 of my Analysis on Taiwan's Quest for a Modern Submarine Fleet here
                     Part 2 of my Analysis on Taiwan's Quest for a Modern Submarine Fleet here

The Wildcard: Vietnam's Naval Modernization and Its Role in the South China Sea

     Vietnam is a country that was "late to the game" in terms of seeing the high annual GDP growth rates that so many other states have seen  in the East Asian region in different periods since the 1950s. While China, South Korea, Japan, and Taiwan all had the ability to utilize a portion of their newly found riches for modernizing their respective military capabilities, Vietnam was forced to maintain a military that was primarily comprised of hardware seized from the vanquished South Vietnamese military upon its surrender in the 1970s.  While the myriad territorial claims in the South China Sea have existed for centuries, newly found wealth has allowed states to develop (and purchase) military capabilities that allow for the power projection necessary to press such claims. 

     Vietnam has seen that the failure to defend its territorial interests in the region can have serious consequences, as it was soundly defeated by the PLA in 1974, resulting in China gaining control of the Spratly Islands.  The Vietnamese navy was again defeated by the Chinese People's Liberation Army Navy (PLAN) in 1988, resulting in an additional six islands being overtaken by China. Such defeats have not been forgotten.  As Hanoi sees its coffers grow from strong economic growth, it has made the decision to invest heavily into the modernization of its navy. 


Gephard-Class Light Frigates

Vietnam has purchased four of these vessels from Russia that will be the backbone of its navy for the foreseeable future.  The ships are highly versatile, as they are capable of engaging surface ships, submarines, as well as aircraft.  The weapons systems include a Russian-made Uran-E missile system, as well as a 76.2 millimeter cannon that fires at a rate of 120 rounds per minute with a 10 kilometer range, and two 30 millimeter guns. The frigates are also equipped with the Palma anti-aircraft gun system, which is a capable defensive measure against anti ship cruise missiles (ASCM), ariel bombs, as well as enemy aircraft fire. 

                                                 The Vietnamese Frigate Dinh Tien Hoang

     The most recent of the frigates to be delivered to the Vietnamese navy are specially equipped with anti submarine warfare (ASW) capabilities.  Each hold two twin torpedo tubes, anti-submarine rocket launchers, and 12-20 submarine specific mines. In relation to the South China Sea, these ships have the ability to project highly capable offensive measures, as well as providing an important layer in an area access area denial (A2AD) scenario within an area.


Molniya-Class Corvette

     The primary combat utility of the corvette vessel is for engagement of enemy vessels in open sea, and the Molniya-class is quite capable.  The ships are armed with the Russian SS-N-25 switchblade anti-ship missile system, as well as other supersonic anti-ship missiles.  It also has the Garpun-Bal radar system, which allows a vessel to observe up to fifteen targets simultaneously, and target up to six for weapons delivery. 

                                          Vietnamese Molniya-class Corvette
The ship also has a wide array of additional  capabilities, including mine-laying, defensive countermeasures, and high speed capability.  It is also widely believed to have the ability to be stealth capable, as well as carry out missions as far away as 3000 nautical miles from its home port. In 2012, Vietnam also purchased 4 Sigma-class Corvettes from the Dutch Schelde shipyard, with two of the ships being manufactured in Vietnam under Dutch supervision.  This is significant because it gives Vietnam valuable experience in final assembly production of a vessel that could be used in the future to develop its own indigenous vessels.

Kilo-Class Submarines
     It is Hanoi's 2009 contract with Russia to purchase six kilo-class submarines that is potentially the most significant purchase made by the Vietnamese navy.  The subs are equipped with Klub-S submerged launched cruise missiles, which can be used as an anti-ship weapon, or more controversially, retrofitted for land-attack capability.  At the present time, Russia is only supplying Vietnam with the anti-ship variety, yet it should be noted that if Hanoi is to gain the latter model in the future, it would be a major concern for its neighbors to consider.  The major issue for the Vietnamese navy regarding the submarine acquisition is the lack of experience the navy has in using and maintaining submarines of this caliber.  While India is believed to be providing training to the Vietnamese navy for the submarines, it will take years of training to bring crews up to sufficient levels to operate the vessels.

                                                            Kilo-class Submarine

  It is without question that Vietnam has upped the ante in the great military chess game taking place in the South China Sea.  The recent military acquisition platforms acquired by the Vietnamese navy potentially allows it far more options in its power projection towards claims in the South China Sea.  The frigates and corvettes purchased all have the ability to be quick strike vessels in a conflict scenario near the South China Sea, and potentially deliver devestating blows to enemy vessels,  something Beijing must take into account before a decision would be made to engage the Vietnamese navy.  The Kilo-class submarines purchased also have the potential to disrupt enemy ships in a military conflict in a variety of ways.  Analysts believe that the People's Liberation Army Navy (PLAN) still is lacking credible ASW defenses, a fact that could be exposed by Hanoi if military actions took place between the two states.  There is also the geographic factor to consider: Vietnam is in close proximity to China'a Hainan Province, the island which is harbor to the PLAN Southern Pacific Fleet. It is worrisome enough for Beijing to consider that harbored vessels could be easy prey for submarines off the island's shores if conflict took place; the prospect of Vietnam someday having land-attack capabilities integrated into its submarine fleet would be a serious cause of concern.  These new acquisitions, as well as the purchase of surveillance DH C-6 Twin Otter aircraft from Canada, and its SU-30 MK2 and Su-27 aircraft that can reach the disputed Spratly Island airspace (the PLAAF aircraft is not believed to have this effective range thusfar), Vietnam has quickly developed a multi-layered A2AD scenario that Beijing must consider before it would use military options against Vietnam in this region.  Although in the minds of Vietnamese officials, the 1998 Spratly Island battle will never be forgotten, it must now seem like ancient history.







                




    

Taiwan's Choice: Two Domestic Visions Offered Towards the East China Sea Dispute

     Two of the many advantages a state has when it adopts democracy as its form of government is choice and options.  Politicians of all shapes and sizes will propose their ideals, proposals, and policy visions to the voters, and the voters in turn will decide by ballot which direction a state will take.  There is perhaps no other country in which foreign policy continuously plays such a vital role in electoral politics than in Taiwan; and the evolution of the Democratic Progressive Party's (DPP)  foreign policy approach will finally  give the voters two distinctly different approaches from which they will choose from in upcoming elections over the next few years. 

     In many ways the South and East China Sea region in 2013 resembles  1913 Europe: A region where multiple states simultaneously grew in economic and military stature, and old rivalries and vendettas were once again brought to the world stage, in no small part  fueled by nationalist sendiment.  Fueled by rapid economic growth, the regional states of China, Japan, Vietnam, South Korea, Philippines, Malaysia, and Singapore are all in the process of modernizing their respective military capabilities, mostly with the blessing of their citizens, as such hardware can be seen as symbols of a country's maturation, as well as tools necessary to defend and even press their respective territorial claims.  It should come as no surprise that Taiwan's role within  this struggle of myriad regional  state actors is complex. 

     Although Taiwan has been steadily losing ground in its quest for de facto political recognition and international space against China, its approach to the East China Dispute presents a unique opportunity for it to show regional states, as well as the world, that it does in fact have the right to be recognized as not only a seperate state from China, but a responsible one.  In Taiwan, both major political parties, the KMT and DPP have begun to crystalize their approaches  in which they believe is the best route for Taiwan to take regarding the  East China Sea issue; approaches that both appear to be of a larger approach to their respective foreign policy objectives.

     For the KMT, the issue of the Senkaku-Diaoyutai island dispute is one that is rooted in its prior territorial control of China proper.  Although it is not likely that the Ma Administration would come out and plainly state the prior fact, the reality is that the KMT supported claims over the islands are rooted in its 1947 territorial claims of greater China, Mongolia, Taiwan, the Pescadores, and the paradoxical "Nine dashed line" that appears on maps of both the PRC and ROC in which both claim  nearly all of the disputed territory within the South China Sea (this line has been shortened by the PRC, as the original KMT line in  1947 was actually eleven lines). 

 It is under the premise of "One China" that the PRC does not openly object to Taiwan's claims on the Senkaku islands, and has even given signals to Taipei that it is willing to work with Taiwan on issuing a joint claim on the territories, overtures that have been met with interest by some government officials within the KMT, as well as a number of retired ROC military flag officers who have made similar statements about forming some type of joint claim (although the Ma Administration has recently stated that no such joint declaration will be forthcoming at this time).  It is in Beijing's interest to support the ROC-backed claims of the islands for one primary reason, which is that the ROC claims are based on historical claims from the time it ruled China proper, which in Beijing's eyes lends support to its long-standing claim that there is one China.  Therefore, as long as Taiwan's claims to the islands are on the basis of prior territorial control and under the form of an ROC-based government, there will not likely be overt objections from the PRC.

     When looking at the position of the DPP regarding the islands, it is apparent that the party holds a much different reason on Taiwanese ownership.  This author believes that the  DPP cannot logically use the historical claim of the KMT for the Senkakus due to the fact that such a move would imply that it recognizes ROC sovereignty over Taiwan prior to the ROC government  retreat to the island in 1949.  The DPP also recognizes that the issue of the islands has become an issue that many people in Taiwan have a strong interest in.  To simply state that Taiwan has no claim to the islands whatsoever could be seen as a sign of defeatism in the eyes of many voters.  Instead the DPP has begun to make an alternative claim based on historic fishing rights, as well as potential continental shelf connections to the areas adjacent to the islands, with the latter being a stronger case in the eyes of international law if this were proven to be true. 

         
    While the islands themselves have been in the global headlines over the past few months, it is the direction in which Taiwan chooses to move in resolving the crisis is what will have long lasting ramifications for the country.  If the Taiwanese choose to continue the KMT-led approach of using a historical territorial claim, it will continue to remain in the shadow of the PRC, whose claim is identical.  In addition, Beijing could potentially push the Ma Administration to make a joint-declaration regarding the islands, a move that could have a devastating impact on Taiwan's standing in the region, as well as in the eyes of its primary security partner, the United States.  Taiwan could also be seen as another "Cambodia": A state that has drifted so far into the Chinese sphere of influence that it can no longer be seen as an independent actor in the region.  For Taiwan to maintain its current policy could also effect its overall security capabilities.  If Washington comes to the impression that Taiwan is moving too deeply into the sphere of PRC influence, it could question the sale of advanced military platforms to Taiwan, something that has been increasingly taking place in some circles. 

     The DPP, however, appears to offer a much different approach in its policy towards the Senkaku-Diaoyutai island dispute. On February 3rd,  in his first foreign trip as Chairman of the DPP, Su Tseng-chang visited Japan and stated that  "collaborating with Beijing on the issue does not serve Taiwan's strategic interests in the region".  Su also stated that while Taiwan maintains its claim of sovereignty over the islands, it wishes to find a peaceful solution with Japan over the issue.  It is difficult to say how the DPP would be handling the issue if it were in control of the Taiwanese government, yet it appears to be offering a choice to the citizens of Taiwan, which is a rapproachment towards Japan, and in turn, the United States. 

     While neither side claims in overt tones that it is gearing its foreign policy specifically towards any one country, the writing is on the wall.  In a recent conference in Washington DC regarding the Taiwan-United States relationship, the experts on the panel were in unanimous consent in stating that it would be in Taiwan's interest to avoid collaboration with China regarding the East China Sea issue.  In contrast, the DPP position of offering an alternative claim towards the Senkaku islands could indirectly hurt the PRC claims, as it would shift away from the shared belief of the PRC-ROC historical claim.  In addition, a Taiwan shift towards a peaceful resolution that would be brought about by engagement with Japan, would likely be welcomed by all regional states, as well as the United States.  A shift in Taiwan's claims could be seen as stepping out of the shadow of the PRC, and further molding  its own identity.  It would be a wise decision for Taiwan to make, and a responsible  one that the world would surely notice.

Part 2: Seeking Truth From Facts: Challenging the People's Republic of China's Territorial Claims over Taiwan

     While part one of this series dealt with Chinese sovereignty  claims over Taiwan from ancient times up until the end of World War II, part two will examine the post war landscape up until present day.

     Two declarations that are often referenced by advocates of Taiwanese-PRC integration are the Cairo Declaration of 1943, and the Potsdam Declaration of 1945.  The Cairo Declaration was issued by China (Under ROC jurisdiction), Great Britain, and the United States on December 1st, 1943.  It proclaimed, among other issues, that "Japan shall be stripped of all the islands in the Pacific which she seized or occupied since the beginning of the First World War in 1914, and that all the territories Japan stole from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China.  The Potsdam Declaration, created two years later, emphasized the terms of the Cairo Declaration to be carried out, and that "Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and other islands as we determine."  Advocates of unification often point to these declarations to bolster their claim that the allies of World War II sought to pry Taiwan away from Japanese control and return it to its pre-1895 status as a Province of China.  Although these declarations were undoubtedly important in the idea that the Allied powers were looking to create international stability following the end of World War II by making their public their intentions for a number of questioned territories, a number of questions remain over the legal importance of these declarations, including the actual validity of both being binding documents on par with recognized treaties.

     The International Law Commission, when developing the Vienna Convention on the Law of Treaties, decided against the inclusion of joint statements of policy or intention by incorporating in its definition the requirement that an international agreement must be "governed by international law" in order to be a treaty. Both declarations in effect were little more than the intended actions of states who agreed to the declarations desired to take in the in the future when conditions were permissible.   A second factor to consider regarding the two documents is that even if such documents were recognized under international law as binding, the binding force of any international agreement is limited to signatory nations and cannot extend to third party nations that are not signatories, nor can it demand obligations of third party nations.  Japan was not a signatory to either declaration, hence the documents have no actual force in international law, as Taiwan was a territory of Japan at the time the document was signed.

The Atlantic Charter of 1941
It is worth noting that while the PRC frequently mentions the aforementioned documents as a basis of claiming sovereignty over Taiwan, it does not recognize the Atlantic Charter of 1941.  The Charter, which was endorsed by the ROC, Breat Britain, and the United States, states that in regards to Taiwan, there would be no territorial change without the expressed wishes of the people concerned, that the people have the right to choose the form of government they will live under, and that "sovereign right and self-government be restored to those who have been forcibly depressed."  This is a critical point and should be repeated:

 there would be no territorial change without the expressed wishes of the people concerned, that the people have the right to choose the form of government they will live under, and that "sovereign right and self-government be restored to those who have been forcibly depressed."
 -The Atlantic Charter of 1941

Crimea (Yalta) Conference of 1945
This conference stated that "Taiwan and the Pescadores be put into the trusteeship system after World War II," wording which was later defined under articles 76 and 77 in the United Nations Charter.  This conference also cannot be considered binding under international law due to the fact that the Charter was ratified on June 26th, 1945, a full six years before the Japanese Empire officially ceded sovereignty claims over Taiwan under an official binding treaty, the Treaty of San Francisco.


General Order No. 1
     On September 2nd, 1945 officials from the Japanese government signed the official Japanese instrument of surrender, officially ending World War II.  It was during this time that the United States, in accordance with international law, became an occupying power of the Empire of Japan and its respective territories. On this day, General Douglas, the Supreme Commander of the Allied Forces, issued General Order No.1, which directed ROC General Chaing Kai-Shek to enter Taiwan and accept the surrender of Japanese troops.  The military troops under Chiang Kai-Shek, while exercising delegated administrative authority for the military occupation of Taiwan beginning on October 25th, 1945, had (and continue to have) effective territorial control over Taiwan.  Yet many international law experts claim that the ROC does not have legal authority over Taiwan, as there has never been an official transfer of sovereignty.  On this date, the ROC was only an occupying force on Taiwan,  whereas the United States remained the principal occupying power of the island.

General MacArthur and Chiang

Treaty of San Francisco
   It was with the Treaty of San Francisco (TOSF) that Japanese sovereignty over Taiwan officially ceased.  The treaty was signed not only by the victorious Allies, but by the Japanese as well.  Under international law, the treaty is highly significant and of a far higher legal stature than other international documents where only a portion of states are signatories.  Until the TOSF was ratified in 1952, Japan technically had yet to lose sovereignty over Taiwan.  Under Chapter 2, Article 2, Section B of the treaty, it states that Japan "renounces all right, title, and claim to Formosa and the Pescadores".  The treaty did not state that the previous treaties which granted Japan territories from prior agreements were invalid, which effectively nullifies the claim made by both the PRC and ROC that Taiwan reverted back under ROC control following the 1943 ROC declaration that it was unilaterally nullifying the Shinmoneseki Treaty.  The TOSF also did not explicitly state the sovereignty status of Taiwan after Japanese reunification.  In 1955, John Foster Dulles, co-author of the San Francisco Peace Treaty, affirmed that that the treaty ceded Taiwan to no one; that Japan "merely renounced sovereignty over Taiwan."  The ROC was not a signatory to the TOSF and according to Articles 21 and 25, "cannot claim any special benefits in regard to ownership of Formosa and the Pescadores via the treaty", nor can the ROC claim to be an "Allied Power" as defined in the treaty.

Treaty of Taipei 
     In 1952 Japan and the ROC officially ended hostilities between each other by signing the Treaty of Taipei (TOT).  While both the ROC and PRC have stated that the Treaty enhances their claim over the sovereignty of Taiwan, in the realm of international law, it does not.  The treaty states in Article 4 that "...all treaties, conventions, and agreements concluded before 9 December 1941 between Japan and China have become null and void as a consequence of war".  It is puzzling how the PRC would find validity in this specific treaty, as it claimed to be the sole representative of all China in 1949, a full three years prior to the ROC signing the treaty with the Japanese.  There is also the issue of the Treaty of San Francisco to be considered, which under the rules of the Geneva Convention, effectively placed Taiwan under ROC military occupation, under the consent of the United States as the legal trustee of the island as an Allied member from World War II.  Furthermore, Great Britain and American officials did not recognize and transfer of Taiwan's sovereignty to "China" in either of the post-war treaties.  While it would appear that Japan was recognizing the sovereignty of the ROC on Taiwan, Yuzin Chiautong of the World United Formosans for Independence (WIFI) proposed an alternative viewpoint in 1972, stating that Article 10 of the treaty was not an affirmitive definition of the Chinese nationality of the Taiwanese people, but merely an agreement reached for the sake of convenience on the treatment of the Taiwanese as ROC nationals, because otherwise they would be considered stateless and be ineligible for documentation to enable them to travel to Japan.

United Nations Resolution 2758
     "The General Assembly Decides to restore all its rights to the People's Republic of China and to recognize the representative of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek for the place which the unlawfully occupy at the United Nations and in all the organizations related to it." (UN-1971)

     While this resolution recognized the PRC as the legitimate representative of China, it did not specifically state that Taiwan was included as part of China.  In 1964, when France decided to establish diplomatic relations with the PRC, President Charles de Gaulle hoped to continue a concurrent diplomatic relationship with the ROC.  Greece also desired to maintain its diplomatic relationship with the ROC government.  The only potential that existed for this scenario to have occurred would have been for the ROC to alter its stanceof being the sole legitimate representative of China, and declare Taiwan a separate sovereign entity.  These governments were aware of this fact, and were likely not the only states hoping that the ROC would alter its foreign policy in order to justify diplomatic recognition.  Chaing Kai-shek, however, insisted on maintaining a one China policy with the hopes of reclaiming China proper, and with this policy further isolated the ROC diplomatically and left Taiwan frozen in a state of legal limbo.

Conclusion 
    While states generally recognize the PRC one China policy in diplomatic settings, the ROC's authority is dually recognized both in fact and in law.  In 1997, judicial courts in Nova Scotia specifically recognized Taiwan as a "flag state" under the Laws of the Seas and decided that Taiwan possesses exclusive jurisdiction over Taiwanese nationals in high seas.  While Taiwan maintains its own government, territorial jurisdiction, standing military, internationally recognized sovereign land, air, and maritime territory, and a permanent population it is still not a state in the de jure sense.  International Law expert Daniel O'Connell has asserted that "a government is only recognized for what it claims to be."  Taiwan is still not a "state" because it still has not unequivocally asserted its separation from China and is not recognized as a state distinct from China.  Yet the claims of China still remain.  It is with good reason that the PRC has shown a great deal of insecurity in its diplomatic attempts to convince the world of its legal claims of sovereignty over Taiwan, for its arguments, both historic and legal, are filled with inconsistencies and inaccuracies.  The PRC's depiction of Taiwan historically being a constant part of the Chinese territorial makeup does not match the historical record of the island.  Even if the concept of ancient claims were to be accepted, the PRC has never clearly stated a definitive time frame for which it considers the length in which a territory is required to be controlled and administered, as well as how far into history a state should be legally allowed to claim such a condition.  This is perhaps intentional, as areas within the current territory of China has been occupied by other states and empires (ie Russia, Japan, Mongolia, Korea) for much longer periods of time than the PRC could claim jurisdiction over Taiwan.  While there are still a number of unanswered questions regarding the legal status of Taiwan in accordance to accepted norms within international law, the question of Beijing's territorial claims to Taiwan have been answered for some time, and the truth has become a bitter pill for China to swallow.  

Seeking Truth from Facts: Challenging the People's Republic of China's Territorial Claims over Taiwan

     For years, the People's Republic of China (PRC), has looked to claim sovereignty over Taiwan on the basis of international law precedents and tradition.  Since its creation in 1949,  the PRC  has consistently picked specific treaties and declarations that it feels bolsters its claim in a legal since, then twists and molds these respective agreements until they fit into its perception of reality.  It does not hesitate, however, to cast aside treaties and and international jus cogens protocol when agreements not only fail to support their claims over Taiwan, but often contradict or invalidate certain arguments completely.

     A common phrase that is heard spoken by government officials in Beijing is that "Taiwan has been an inalienable part of China since ancient times".  This phrase should not be ignored due to the fact that the Chinese Communist Party (CCP) has consistently used such wording since 1949 in an attempt to lay the groundwork for a claim to Taiwan on historical grounds.  It is important to explore this claim in more detail.

"Taiwan has been a part of China since Ancient Times"

     It was during the Sui Dynasty (581-615 CE) that Taiwan is first mentioned in Imperial Chinese records.  It was not until the Song Dynasty (1127-1279), that any form of legal control was exercised by a Chinese Imperial government over the island, which was done by placing military garrisons in the neighboring Penghu (Pescadores) islands, and placing the jurisdiction of the garrisons under Fuijan province. In the Dynasties that followed, both the Yuan and Ming continued to authorize jurisdiction over the islands by maintaining an Administration of Patrol and Inspection.  It should be noted that from 585 until 1624, when the Dutch successfully controlled the Western coast of Taiwan and began an occupation that lasted for 38 years, Taiwan was never raised to the status of an official Province of the empire, and the highest legal title given to the island was one of "...an island under the jurisdiction of Fuijan Province".  In 1885, the Emperor Guangxu formally upgraded Taiwan to a status of full province.  It could be argued that while China had some form of control over Taiwan, such control was sporadic, and subject to a particular Emperor's interest in exerting control over Taiwan, which often was deemed too time consuming, as the Taiwan Strait had many periods in which pirates, and foreign navies made such control difficult.  For the current government of the PRC to claim that multiple dynasties had some form of control over Taiwan throughout the centuries would imply that the PRC recognizes that such Imperial governments were the legal governing body of Chinese territory during this time, and therefore had the right to not only govern, but to levy taxes, raise standing armies, as well as to be recognized by other states of their respective times, and maintain the ability to demand tribute from neighboring states, as well as enter into treaties with foreign states. 

"The Treaty of Shinmoneseki was an unfair treaty signed under duress, and therefore is invalid"
     Following the First Sino-Japanese War of 1894-1895, The Treaty of Shinmoneseki was signed in 1895, during which time the Qing Dynasty ceded Taiwan and the Pescadores Islands to the Empire of Japan.  It is with this treaty that many advocates of "reunification" begin to shift the argument for PRC sovereignty over Taiwan from one of historical ties to one that is grounded in international law. A number of Chinese analysts have stated that due to the unequal terms in treaties that were signed by the Qing in the waning days of its rule, that such treaties should be considered invalid due to such agreements being signed "under duress".  The primary reason of many treaties signed at this time, analysts argue, were to serve the interests of "imperialist powers" and not to be of mutual benefit.  This argument is weak in two aspects.  First, while the PRC has stated in its view that the Treaty of Shinmoneseki is invalid due to the aforementioned reasons, it has accepted the legality of other treaties from within the same time period with similar traits of inequality that were ratified by the Imperial government. The PRC Foreign Ministry has stated previously that, "...although the Sino-Russian Kashgar Boundary Treaty (1884) was signed by the Chinese (Qing) government under tsarist Russian duress, the treaty remains the only valid boundary treaty determining the alignment of the Chinese and Russian frontiers in the Pamirs".  The PRC also recognized the Treaty of Nanking of 1842, in which Imperial China ceded the Port city of Hong Kong to Great Britain, which reverted the city back to Chinese control in 1997, as per the treaty specifications.

The Treaty of Shinmoneseki 

Secondly, as early as 1625, Hugo Grotius, a Dutch Jurist who is known for laying much of the groundwork for modern international law, commented that a stronger states imposing its will on a weaker one via treaty is "a legally binding arrangement on both of the powers".  In 1921, Brazil proposed an amendment to the League of Nations that would have voided any international treaty that violated clauses prohibiting aggression.  Although the amendment was never adopted, the proposal makes clear that such treaties were considered legal and binding, or such a proposal would not have been necessary! While the PRC claims that the 1945 ROC act of abrogating all prior Chinese Imperial treaties with the Japanese is justification for the ROC reclamation of Taiwan, it does not have legal merit in international law.  Professor Y. Frank Chiang wrote in 2005 that there are "No international law principles which can serve to validate a unilateral proclamation to abrogate a territorial treaty, weather based on a charge of being "unequal", or due to a subsequent "aggression" of the other party to the treaty, or any other reason."  Both the PRC and ROC claims of the legal unilateral abrogation of the Treaty of Shinmoneseki is further invalidated under the international law Principle of Estopel, which states that "Party A cannot claim a right from which Party B if Party A previously took actions or made statements that were contrary to the current claims and which led party B to take action that is the subject of the current claim."  With Imperial China, as well as the ROC having made numerous references to Taiwan under Japanese rule, these actions  give further credence that make it irrefutable that Taiwan legally belonged to Japan from 1895 until it relinquished control of the island following the Second World War.

The Concept of Kuo 

     In addition to the PRC claims over Taiwan that are based on contemporary international law, it also uses the ancient ideals of the Confucian concept of state sovereignty in which the area over which a state, or "kuo" had sovereignty, not as a function of legal limits, but as one of social organization, history, and the loyalty of subjects.  In this idea, sovereignty was expressed by influence rather than definitive boundaries that one could locate to on a map.  During various periods of Imperial China, portions, or even entire states that are recognized today (Vietnam, Myanmar, Mongolia, Korea, Bhutan, Malaysia, and Nepal), fall into this category.  If one was to apply this Confucian logic that the PRC maintains towards its claims over Taiwan, it would appear that the PRC would have a much stronger case over sovereignty over Vietnam and the Korean Peninsula, as both were tributary states of Imperial China as early as 200 BCE.  It is also important to note that Beijing does not give a specific time frame in which an area that historically fell under Chinese influence could be considered "historical Chinese territory".

It would appear that Taiwan would not fit into such qualifications for this historical sovereignty claim, as it spent less than a decade as a Province of Imperial China.  In comparison, why should claims to Taiwan be based on historical record be any more binding than if Turkey were to claim lands that were once part of the Ottoman Empire somehow were a part of its modern territory? In simple terms, under international law, ancient claims may not serve as the legal basis for gaining title to a given territory.  Additionally, there is no legal distinction between a country's ancient territory and any other territory.  

The Founding of Modern China
     Although there are a number of wars, treaties, and developments that took place between the founding of the ROC in 1912 and today, there are some basic points that need to be made regarding Taiwan's place in the creation  of the modern Chinese state, or perhaps its absence:

*On January 12th, 1912 Sun Yat-Sen, who was chosen as interim president by the provisional national assembly of provincial delegates, proclaimed the establishment of the 'Republic of China'.
During this time, Taiwan was under Japanese sovereignty and not included in the territory of the ROC during its inception. 

*In the draft constitutions of the ROC in 1925, 1934, and 1936, Taiwan did not appear as a province in the new republic.

*A declaration from the Chinese Nationalist Party's 2nd National Party Congress in 1926 commented on Taiwan's nationalist revolution, along with those in Korea, Vietnam, and the Philippines, expressing the party's support for independence for the Taiwanese. In a similar show of support for the Taiwanese independence movement, Chaing Kai-Shek, during a speech to the KMT's Provisional Party Congress in 1938, endorsed Sun Yat-Sen's view that independence for Korea and Taiwan would be beneficial in consolidating the ROC's position in China and laying the groundwork for peace in East Asia. The ROC also made repeated statements from 1912 to 1943 stating its desire to see "Taiwanese independence".  With these statements, the ROC validated the legitimacy of Japanese sovereignty over Taiwan according to the international principle of estopel, hence the ROC could not unilaterally invalidate a treaty that it has previously validated in the form of recognizing Taiwan under Japanese sovereignty.

     It is not difficult to draw the following conclusion that, by the ROC not including Taiwan in its original Constitutional drafts that the ROC authorities did not consider Taiwan to be part of its sovereign territory during its inception.  This would also mean that upon the creation of the PRC, Taiwan would have also remained outside its legal sovereign territory due to the facts listed above.

   
Part 2 will examine developments that took place following the Second World War

China's Vision of the South China Sea (And Why You Should Care...)

     The South China Sea is an area of the world that many observers see as a likely flash point for major conflict in the 21st Century.  Within this geographic area are small islands, reefs, and patches of sand.  Many of these disputed parcels of territory are so small in size that they disappear under the sea on a daily basis when the high tides rush to their shores. While the territory in dispute is often shown on the front of East Asian newspapers (perhaps because land itself can be portrayed as a tangible image that can be obtained), it is the potential of untapped resources beneath these islands and shoals that are the real prize that the claimant states desire, as well as scoring political points back home with their respective citizens.

Scarborough Shoal in the South China Sea, whose ownership is disputed by China, Taiwan, and the Philippines

     While Vietnam, the Philippines, Taiwan, Japan, Indonesia, Malaysia, Brunei, Singapore, Thailand, and even Cambodia have pushed territorial claims in the area to varying degrees, it is China's claims that tend to pose the greatest risk to regional, and even global stability for a number of reasons.   China is not alone in its increasingly aggressive methods of asserting its claims in  recent months, yet  the methods in which it presses its claims are widely viewed as irresponsible and fraught with risk of escalated conflict.  Additionally, Beijing's long-term  view of what a conflict-free South China Sea would look like runs directly counter to not only American interests, but to most other states in the world as well.

       China, like all of the other claimant states, have interest in the vast potential resources that could lie beneath many of the reefs and shoals in the South China Sea, additionally nearly 90% of all its imports and exports are transported in shipping lanes within the disputed region.  The PRC government would be remiss if it did not look out for its economic interests, as well as ways to continue to fuel its domestic consumption in order to keep its economy growing at a healthy clip.  It is China's disheveled use of force in the region, however, that is seen by analysts  as conduct unbecoming a state that wishes others to see it as a responsible actor in the South China Sea.  The primary problem in China's naval  power projection in the region is that Beijing has allowed its regional governments and subbranches of the Chinese Communist Party to have far too much autonomy in this sensitive regional dispute.  China has thus far allowed  the People's Liberation Army Navy (PLAN) to "stay above the fray" in terms of sending its vessels into close contact with foreign vessels in the disputed territories.  In exchange it has permitted over ten government agencies to come into contact with such vessels.

PRC Maritime Police during a counter-terrorism exercise

     The Maritime Police, Border Control Department (BCD), Maritime Safety Administration (MSA), State Oceanographic Administration (SOA), Fisheries Law Enforcement Command (FLEC), and the Coast Guard have all been involved with various levels of contact of foreign vessels, which drastically increases the chances of misunderstanding and conflict without a clear chain of command coming from Beijing.  China has also given some of its southern provinces a staggering amount of authority in sending vessels to the disputed region.  In November, Hainan Province was given permission to intercept foreign vessels that operate "illegally" in the island's waters, which in China's eyes include much of the South China Sea.  Allowing bureaucratic branches and regional provinces within China to operate  with its own interests in mind is a dangerous precedent for an aspiring global power to be playing, and it is exactly what is taking place within Chinese foreign policy regarding the South China Sea at the present time.

     China has also taken a drastically different view from the international norms in the case of maritime boundaries and right of passage.  According to the United Nations Convention on the Law of the Sea (UNCLOS), states have territorial water rights that extend to 12 nautical miles, and an additional  contiguous zone of 12 nautical miles in which states have custom, tax, immigration, and pollution enforcement authority.  Beyond this range is a state's exclusive economic zone (EEZ), which extends for 200 nautical miles, and a state holds sole rights over the area's natural resource exploration and exploitation.

     It is the opinion of Beijing that EEZ rights extend far beyond what has been ratified by the 162 signatories of UNCLOS (a treaty that the United States generally abides by, but has yet to ratify), in claiming that the 200 mile nautical zone also allows for a state to deny right of passage to military vessels on both water and air.  If other countries were to follow suit with this mode of thinking, it could severely hinder the ability of military vessels to conduct operations what has been open sea territory.  Additionally,   if the Chinese interpretation were to be followed,  response times for vessels and aircraft that would be called to respond to humanitarian missions in the cases of natural disaster, or a political crisis, could be severely lengthened.  What should be troubling for not only American interests, but for the majority of states is that China is attempting to garner international support for this idea.  In 2011, Thailand became the most recent country to adhere to this mode of thinking, stating that its understanding of the freedom of navigation does not include the right of foreign navies to undertake military exercises within another country's EEZ. In addition to Thailand, Kenya, Somalia, Iran, Pakistan, India, Bangladesh, Burma, Malaysia, North Korea, and other states  have all expressed some degree of support for anti-access maritime norms as a matter of state policy. If the Chinese model of EEZ interpretation were to be enforced by Beijing, and the 23 other states it has slanted to its point of view, 38% of the world's ocean would become much more hostile to international military hardware, as well as raising the possibility of cargo shipping bans during times of hostility, which could potentially devastate the global economy on short notice.

     It is unlikely that the territorial disputes in the region will be solved in the near future.  Many of the governments involved have invested heavy amounts of political capital among their citizens in the form of nationalistic currency to allow for concession of claims.  The most responsible path for this region to take would be to pressure China to reign in its multiple state actors in this region, and to call for more responsible leadership from Beijing.  The newly minted CCP Standing Committee, led by Xi Jinping,  could also lessen the chance for conflict by placing more authority in its Ministry of Foreign Affairs (MOFA), a branch of government that has traditionally been weak in the PRC,  to coordinate actions in the region, and lessen the chances of conflict escalation.  The Association of Southeast Asian  Nations (ASEAN), would also be wise to put aside territorial disputes, and refute the Chinese notion of EEZ interpretation in the form of a united front.  This is a tall task, however, as China has successfully used its economic leverage against some member states (ie. Cambodia) in order to lower the chances of a unified front against it regarding maritime law and territorial claims. Finally, the United States can increase its diplomatic  visibility in the region, by continuing to support the UNCLOS interpretation of maritime navigation, as well as increasing its military presence in the region.  An American presence in the region is vital for maintaining the continued  period of prosperity and security that East Asia has known and grown with since the end of the Second World War. Surely such conditions  should trump claims over small shoals and rocks.....shouldn't it?