By MA YING-JEOU, the former president of the Republic of China (Taiwan)
July 26, 2016 1:14 p.m. ET, the Wall Street Journal
Earlier this month, a tribunal at The Hague ruled in favor of the Philippines in its case challenging the legitimacy of mainland China’s claims in the South China Sea. In the process, it also downgraded the legal status of Taiping Island (also known as Itu Aba) to a rock, despite the fact that Taiping is the largest naturally formed island in the Spratly group and the only one among the Spratlys that has fresh water.
For Taiwan, the verdict is unfair and patently unreasonable. First, it lacks due process of law. The Republic of China (Taiwan) government has effectively ruled Taiping Island for the past 70 years. Yet when the tribunal was discussing Taiping Island’s status, Taiwan was neither invited to participate nor consulted.
The Chinese (Taiwan) International Law Society, a top academic nongovernmental organization, filed a 400-page amicus brief detailing scientific evidence of Taiping Island’s “earlier, natural condition” prior to the “onset of significant human modification.” That evidence showed ample fresh water, rich agricultural production and a history of human habitation by more than 200 residents since the 1950s.
However, the society’s request for observer or witness status and its open invitation for the arbitrators or Philippine officials to visit Taiping Island were flatly rejected. The single-party award was therefore based on insufficient, outdated and inaccurate information.
The award’s logic is also unreasonable. Article 121 of the United Nations Convention on the Law of the Sea (Unclos) provides that “rocks” that cannot “sustain human habitation or economic life of their own” are not entitled to an exclusive economic zone or continental shelf. The tribunal now modifies that standard, ruling that the land feature must have an “objective capacity which can sustain a stable community of people,” an extra requirement not contained in the original language of Unclos. It also adds that this capacity does not include official personnel.
Are official personnel not human beings under Article 121 of Unclos? The tribunal did not explain. It also ruled that economic activity should not be “dependent on outside resources.” Is there any island or city in the world today that is completely self-sufficient and independent of outside resources? The tribunal did not explain that either. Singapore, for instance, imports large quantities of water, food and energy. Should it therefore not be entitled to have an exclusive economic zone or continental shelf?
The people of Taiwan are furious. The National Legislature passed a bipartisan resolution condemning the award and have asked President Tsai Ing-wen to visit Taiping Island and reiterate Taiwan’s sovereign and maritime claims. Both President Tsai and I have rejected the unfair award, rendered without Taiwan’s participation.
In fact, from December to May, I invited, as president of the ROC (Taiwan), more than 150 dignitaries to visit Taiping Island. The invitees all witnessed its favorable natural conditions, unique to the Spratlys, including its capacity to produce 65 tons of fresh water every day, sufficient to supply 1,500 people. The island can sustain human habitation by about 200 people and its own economic life.
I have made every possible effort to provide the tribunal with new and accurate information about Taiping Island. I visited the island on Jan. 28, held international press conferences in January and March, gave interviews to CNN and the Straits Times, and published an op-ed in these pages, all to help the tribunal understand the fact that Taiping is an island, not a rock. My efforts in the past seven months drew attention from international media, generating 430 news reports about Taiwan’s claims.
Nevertheless, the ruling shows the tribunal’s disregard for these efforts. I believe that the tribunal members’ absence from the on-site survey of Taiping Island, which would have been permitted under Unclos, was a key factor that led them to believe the one-sided story offered by representatives of the Philippines.
A remote ruling that lacks evidence from on-site investigation and testimony from eyewitnesses cannot be convincing—not for Taiwan nor for any other country whose island stakes are potentially threatened.
Instead, this ruling produces more problems than answers for claimants in the South China Sea. It creates an obstacle rather than a path leading to a peaceful resolution.