Sunday, January 27, 2013



US Group Visits Taiwan Base Amid Submarine Deal Speculation

This morning, Sunday January 27, 2012 we learned the following facts:
A delegation , led by Edward Royce , Chairman of the U.S. House Committee on Foreign Affairs, arrived in Taiwan on Saturday as part of a larger visit to East Asia. While in Taiwan the delegation will meet with government officials to discuss U.S.-Taiwan relations, trade, and apparently a long simmering deal on the construction of some conventional submarines. The United States is still the leading arms supplier to Taiwan. Back in 2001, then President George W. Bush approved the sale of eight conventional submarines to Taiwan. Unfortunately the U.S. has not built non nuclear propelled submarines in over 40 years. European sources have so far refused to fill the order for fear of damaging their relations with China. Taiwan's military wants the subs and now appears willing to pay the U.S. yards learning curve. U.S. yards would love to have a modern conventional sub model for the export market. At the moment China has only two fully functional and aging submarines.

USS GROWLER  SSG-577, one of the last U.S. built diesel electric submarines


First Some Condensed History:
 Last week we reported in these spaces a second water cannon fight between Coast Guard vessels belonging  to Taiwan and Japan inside what is so far still recognized as Japanese territorial waters. In this latest incident Coast Guard like ships (the mainland divides its Coast guard functions among several agencies) of mainland China were detected near by and apparently honored a request from the Taiwanese Coast Guard to stay out of the situation so as to "not complicate it". China claims the disputed Senaku / Diautu Islands as part of the Chinese province of Taiwan. Taiwan does not officially recognize mainland sovereignty over their island. The United States virtually alone has defended Taiwan's right to peaceful self determination by defense in the UN and world media, Congressional statute making a commitment to defense,  and by arms sales and gifts.  Taiwan and the mainland did not send representatives to the Pacific Peace Treaty negotiations in the early 1950s due to the on going Communist Revolution. This revolution eventually caused the nationalist government of China to retreat to the virtual island fortress of Taiwan. For decades afterwards Taiwan claimed to be the legitimate government over the mainland and sat in China's seat on the UN Security Council. After the famous "Ping Pong Diplomacy" events of the Nixon administration the Communist government of China came out of isolation and began to be seen by the international community as the legitimate government of China and the mainland displaced Taiwan for the UN Security Council seat.  There after China began to refer to Taiwan as a "break away province" and threatened "reunification" by military force. Until recently the mainland simply didn't have the naval power to do the job. Now that they do, there seems to be a relative calm between the two governments, and growing cooperation. 

Some Legal Analysis:

 Now China presses a claim that the Peace Treaty parties were obligated to follow agreements in an earlier allied agreement and force Japan to return all territory taken by Japan during World War I and II. Japan clearly administered the disputed islands before WW II. The islands apparently have never been inhabited and their pre-WW I history is bit murky  Nearly three quarters of a century of effective administration by Japan and specific mention of the islands as part of Japanese territory in international instruments gives Japan a solid legal case. The failure to protest by either China or Taiwan until oil was suspected in the area also helps Japan's case. In the U.S. / Japan Defense Treaty the U.S. agreed to defend the "Japanese Homeland" and the islands are clearly described in that document as part of southern Japan.  

 China/Taiwan on the other hand have the modern day international legal opinion that territory acquired by conquest is not endowed with inalienable sovereignty vested in the conqueror working for them. If they can demonstrate in an international tribunal that the islands were in fact acquired by Japan during WW I by conquest they may indeed have a legal case. Even in international law there is something like a "doctrine of latches" where cases may be judged stale and dismissed, so their quarter of a century without protest works against them, and there is little history to indicate actual invasion and occupation of the islands by Japan. China/ Taiwan also have a problem of "standing" in trying to bring a case to court. Their standing is affected by the unsettled sovereignty issue between them. However that could be resolved with an agreement between them that stops well short of reunification. Since China claims the islands as part of the Province of Taiwan, Taiwan could contract with the mainland to serve as its agent in filing suite in an international tribunal and as negotiator win or lose in subsequent exclusive economic zone (EEZ)  negotiations with Japan. During our own civil war Great Britain and others recognized the "belligerency of the South", that was far short of recognizing sovereignty. But it held forth the potential of recognition in the future and gave the Southern Army and Navy the protection of "combatant" status  under the international law of the day.
No doubt this international recognition had a lot to do with Northern treatment of Confederate captive soldiers as POWS vice simply hanging them as traitors. This recognition also had a lot to do with why Confederate President Jefferson Davis and Army head Gen. Robert E. Lee were not summarily hanged at the end of the civil war. Taiwan and China are locked in a sort of cold civil war. They don't have to settle all issues to resolve a particular issue of mutual interest. Each in fact may use the quasi -independence of Taiwan to advantage acting as agents of each other.

  We think a lot of this may be going on even now and it is certainly visible in the territorial dispute with Japan. It is not hard to imagine the Taiwan issue being eventually resolved to the satisfaction of both sides with some sort of "common wealth"arrangement. Even if Taiwan/ China would lose an international court case over the actual rocks and uninhabited islands; under international law Japan is not automatically entitled to an EEZ of 200 miles or even a territorial sea of 12 miles in such confined waters. In such an area in as close proximity to several potential sovereigns as these islands are, seaward limits of territorial seas, customs enforcement zones, and EEZ have to be negotiated and ultimately resolved by international instrument. So even if China / Taiwan should lose sovereignty over the actual rocks they could continue the litigation to carve out quite an expansion of their currently uncontested EEZ to Japan's loss. Unfortunately it is clear by their actions that if China were to gain sovereignty over the actual rocks they would use them as a bench mark to push their EEZ without benefit of negotiation to the southern beach of Japan's main islands and demand concessions in the same manner as they are now demanding such from Japan, the Philippines, and Vietnam. China is in thug state mode, and it appears Taiwan is aiding and abetting such behavior. In this violable situation Taiwan now asks us for submarines.

OPINION: The only Ethical U.S. Position"

(1) Unless and until the China or Taiwan wins an international court case over the sovereignty of the actual islets and rocks all nations are bound by existing international law to respect Japans sovereignty over the dry land portion and between island waters of the region.

(2) The United States is obligated by treaty to defend Japan's sovereignty over the actual land areas and inter islet seas of the region unless or until the provisions of the treaty are declared illegal by a competent international tribunal.

(3) The United States is by treaty obligated to defend a reasonable territorial sea around these islands. At the time of the treaty territorial seas were accepted to be of three miles in distance from shorelines but that was often subject to negotiation in narrow seas. Japan has in recent years administered a territorial sea around these islands of about 12 miles which is in keeping with the general provisions of the updated International Convention on the Law of the Sea, but does not reflect negotiations that would be considered normal if China weren't acting in thug state mode. The United States is clearly obligated to at least defend the territorial sea limits at the time of the treaty.

4. It would be the height of foolishness to provide Taiwan with submarines now while it is cooperating with China in thug state behavior toward Japan where we have serious military defensive treaty obligations. At the moment it looks more likely that such submarines would be used against our ally Japan or even our own Navy in the ongoing  Senaku / Diautu dispute than in defense of Taiwan's supposedly threatened right of self determination.

 We might add that if China over steps or miscalculates in the dangerous game that they are playing and forces us to respond in any way to under go expenses in defense of Japan, we should suspend debt payments to China, no one expects a nation to fund the belligerence of another toward their own interests. When the U.S. says it doesn't have a horse in this race we mean only that we are neutral on the issue of sovereignty over any of the disputed islands of the China seas as settled by peaceful international negotiation or litigation. But we have defense treaty obligations in the area and long standing and reliable allies that we owe. We have no choice when claims and actions impinge on the modern limits of the territorial seas of our allies but to respond in defense of our allies. The dragon is playing way too close to the beach and is endangering the peace of the region and the world.  The world shouldn't be passing judgement on the exact bounds of territorial seas, customs enforcement zones and EEZs in the area just yet, but thug state behavior should be roundly condemned. We should be leading the chorus not selling a dragon pup submarines right now.


No comments:

Post a Comment