Paper on Status of Taiwan Law in International Maritime Law(Taiwan's explicit and implicit acceptance of UNCLOS 1982)

I. TAIWAN ADHERENCE TO UNCLOS AND INTERNATIONAL JUSTICE SYSTEM UPTO 25 OCTOBER 1971

That Republic of China (Taiwan) demonstrates adherence to international law notably, Article 97 of UNCLOS 1982 at the present date, and actively participated in PCIJ and ICJ (International Court of Justice) till about 1971 is apparent from the record below: 1. The jurisdiction of Hague Convention of 18 October 1907, in matters concerning US- China relations was ratified by Republic of China (established 1912) on 15 September 1914. [ Article II of Treaty of Arbitration between United States of America & Republic of China, 15 September 1914; American Journal of International law, supplement, Vol. X, p. 268] 2. Republic of China was a founding member of the League of Nations on 10 January 1920 (ratified 16 July 1920), along with India & Bangladesh (through GB), Japan (withdrew 27 March 1933) and Panama. League of Nations was dissolved 18 April 1946. Statute of the Court of PCIJ was signed by Republic of China on 28 January 1921 and ratified on 13 May 1922. Articles 1 and 2 of Kellogg-Briand Pact, 27 August 1928, "the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means." Ratified by Republic of China (now at Taiwan), India &, Bangladesh, (through GB), Panama, Philippines (through USA) and Japan. One case was submitted by Republic of China to jurisdiction of PCIJ, Permanent Court of International Justice. ["Denunciation of the Treaty of 2 November 1865 between China and Belgium", PCIJ Order dated 25 May 1929, PCIJ, 1929 Series A, No 18]. From Republic of China - Chun Hui Wang was Deputy Judge of PCIJ from 30 January 1920- 6 December 1930 and Judge of PCIJ from 15 January 1931- 15 January 1936; Tien Hsi Cheng was a Judge of PCIJ from 8 October 1936- October 1945. 3. Republic of China was a founding member of the United Nations on 24 October 1945, along with India & Bangladesh (through GB), Philippines (through USA) and Panama, till passing of Resolution 2758(XXVI) of 25 October 1971, when its place was taken by PRC. Upon dissolution of PCIJ on 31 January 1946, Hsu Mo of Republic of China served as a Judge of ICJ from 1946 to 1956. Wellington Koo of Republic of China served as a Judge of ICJ from 1957 to 1964 and as its Vice President from 1964 to 1967. During this period, Articles 1, 2 & 3 of the INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO PENAL JURISDICTION IN MATTERS OF COLLISION OR OTHER INCIDENTS OF NAVIGATION BRUSSELS, 10.5.1952 were adopted by United Nations with ratification by Republic of China (Taiwan), providing a legal framework for freedom of navigation on the high seas. (based on Mare Liberum principle of freedom of the high seas since the 17th Century). In 1956, the International Law Commission, in its draft article 35, followed the approach of the 1952 Convention, stating that its position had the object of protecting ships and

their crews from the risk of penal proceedings before foreign courts in the event of collision on the high seas, since such proceedings may constitute an intolerable interference with international navigation.[Report of the International Law Commission covering the work of its eighth session (A/3159), article 35 Commentary, para. (1), II YB ILC 1956, at 253, 281]. It is also noted that during this period, Article 11 of the International Convention on the High Seas, Geneva 29 April 1958 was adopted by United Nations with ratification by Republic of China (Taiwan), reinforcing the legal framework for freedom of navigation on the high seas. Today, interpretation of “high seas” requires a consideration of four factors, the 12 nautical mile territorial waters limit, the 24 nautical mile contiguous waters limit, the 200 nautical mile ( 100/350 nautical mile alternate clause) limit for EEZ and designated archipelagic sea lanes or traditional sea lanes where archipelagic states have not yet designated sea lanes.

II. TAIWAN DOMESTIC LAW AND INTERNATIONAL LAW

A. United Nations Resolution 2758(XXVI) of 25 October 1971 terminated the membership of Republic of China (Taiwan). The legal position of United Nations Conventions post 25 October 1971 in Taiwan Law is discussed in this paper. "SHIPPING LAW 1981" was promulgated by Taiwan on 3rd June 1981. As of 30th January 2002, Article 64 of "SHIPPING LAW 1981"legislated that:

"In case provisions involving international matters are not provided in the present Law, MOTC may, by reference, undertake to adopt, promulgate and enact the relevant international conventions or agreements and the regulations, directives, standards, recommendations or programs prescribed in the annexes thereto as the provisions."

B. The promulgations on maritime law by Taiwan and related international maritime law are discussed below:

1. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, Montego Bay, 10 December1982. This law could not be ratified by Taiwan only because after 25th October 1971, Taiwan was no longer a member of the United Nations.

2. Marine Pollution Control Act of Taiwan, 2000. (Promulgated by Presidential Order on 1 November 2000.)

3. Enforcement Rules of the Marine Pollution Control Act (Issued by EPA on September 2001.)

4. According to the Marine Pollution Control Act of Taiwan, 2000, the geographic jurisdiction of the Act extends as far as the EEZ (Exclusive Economic Zone).

5. The term EEZ is found defined only in UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, Montego Bay, 10 December1982, (UNCLOS) Articles 46 to 75 in Parts IV & V of UNCLOS 1982. These articles clarify that if an archipelagic state does

not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation.

6. Even though Taiwan has technically not ratified UNCLOS 1982, in terms of substantive international law, the notification of EEZ, a term used only in UNCLOS, 1982 under the Marine Pollution Control Act of Taiwan, 2000 provides in conjunction with Article 64 of Taiwan "SHIPPING LAW 1981", a strong legal framework of Taiwan's acceptance of UNCLOS 1982. (For implicit acceptance see III C below)

7. On 5 August 2004, the EPA issued a circular giving effect to the compulsory insurance or guarantee provisions of the Act from 1st July 2005. The amounts of liability insurance coverage or guarantee required in accordance with the Act are as follows:

(a) Oil tankers over 150 gt:- oil tankers between 150 gt and 5,000 gt: SDR 4,510,000- oil tankers above 5,000 gt: for each ton in excess of 5,000, an addition of SDR 631 per ton, subject to a maximum of SDR 89,770,000. (b) Other vessels over 400 gt or chemical tankers over 150 gt: SDR 400 per ton, or SDR 350,000, whichever is greater.

(c) Fishing vessels or salvage vessels: SDR 200 per ton.

III. EFFECT OF NON PROMULGATION OF INTERNATIONAL CONVENTIONS UNDER ARTICLE 64 OF TAIWAN SHIPPING LAW 1981

A. INTERNATIONAL LAWS AND CONVENTIONS

1. The law creating processes are:

(a) International law in unorganised international societies (international customary law).

(b) General principles of law recognised by civilized nations.

(c) Treaties. 2. One of the 7 fundamental principles of international customary law is:"Freedom of the High Seas" which has been formalised in Article 11 etc of UNCLOS 1958 / Articles 34, 35, 36, 86, 87, 92, 94, 97 etc of UNCLOS 1982, derived from Articles 1, 2 & 3 of the 1952 Convention [ Brussels, 10 May 1952, 439 UNTS 233; UKTS No. 47 (1960). Cmd. 1128] 3. Another of the 7 fundamental principles of international customary law is:"International Responsibility" which has two major propositions:(a) Breach constitutes an international tort.(b) Commission of an international tort involves the duty to make reparation.

4. Interaction of the rules governing the fundamental principles of international customary law:

(a) Protection of nationals abroad; this rule has behind it the authority of the PCIJ, Permanent Court of International Justice & a host of international tribunals.

(b) Freedom of Commerce & Navigation. In 1956, the International Law Commission, in its draft article 35, followed the approach of the 1952 Convention, stating that its position had the object of protecting ships and their crews from the risk of penal proceedings before foreign courts in the event of collision on the high seas, since such proceedings may constitute an intolerable interference with international navigation.[Report of the International Law Commission covering the work of its eighth session (A/3159), article 35 Commentary, para. (1), II YB ILC 1956, at 253, 281]

B. DENUNCIATION OF AN INTERNATIONAL CONVENTION

1. A nation may denunciate its ratification of an international convention through an instrument of denunciation. Taiwan has not denunciated either the Brussels Convention on Navigation 1952 or the Geneva Convention on Freedom of Navigation on the High Seas 1958, both of which are ratified by Republic of China (Taiwan).

2. In 1998, Yang Ming Marine Transport Corp., a Taiwan Government part owned Corporation filed an appeal against Admiralty action in rem in the Queen’s Bench Division, England in a case involving the "Ming Galaxy" (The “Herceg Novi” and “Ming Galaxy”, Court of Appeal 17, 18 June; 16 July 1998 [1998] 2 Lloyd’s Rep. 454.)

HELD"The International Maritime Organisation is not a legislature. It may commend the 1976 Convention to the international community. But if by doing so it were found to have enacted an international consensus, that would be to deprive sovereign states to a large extent of their right to stay with some other regime."

COMMENTARYThis Appeals Court ruling affects only those conventions such as the Limitation Convention 1976 (LLMC 1976) that are signed between a limited number of nations and which are only “commended” by the International Maritime Organisation. It has no effect on duly ratified United Nations Conventions such as Articles 1, 2 & 3 of the INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO PENAL JURISDICTION IN MATTERS OF COLLISION OR OTHER INCIDENTS OF NAVIGATION BRUSSELS, 10.5.1952, Article 11 of the International Convention on the High Seas, Geneva 29 April 1958 and Articles 86, 87, 97 of UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, Montego Bay, 10 December 1982.

C. OTHER RELEVANT ISSUES AND CASES

1. TAIWAN STAND ON ARTICLE 97 OF UNCLOS 1982 IN CANADA 1996. On 24 May 1996, Canadian Police arrested seven Taiwanese (Republic of China) officers after some initial resistance, from the Taiwanese registered Maersk Dubai owned by Yang Ming Marine Transport Corp., a Taiwan Government part owned Corporation, in a sorrowful saga involving the US, Canada, Romania, Philippines and Republic of China (Taiwan). On the insistence of a Taiwanese trade representative, Leonard Chao, posted in Canada the flag state / crew nationality principle of the law of the sea was upheld as contained in Articles 1, 2 & 3 of the 1952 Convention, Article 11 of the International Convention on the High Seas 1958 and Articles 86, 87, 97 of UNCLOS 1982. [Romania v Cheng, (March 6, 1997) No. 128423 (N.S.S.C.) ]

2. International Group of P&I Clubs provides an effective voice for the members of the individual clubs to speak collectively on important industry issues, for example on international conventions and legislation affecting shipowners liabilities and related insurance matters. It carries out this function in relation to, and liaises with inter-governmental bodies such as IMO, UNCITRAL and OECD. INTERNATIONAL CONVENTION ON ARREST OF SHIPS, 1999 was finalised at the IMO Conference held at Geneva from 1 to 12 March 1999 with participation which included Panama and International Group of P&I Clubs as an observer in the special category of Non-governmental Organisations. A partly Taiwan Government owned member of one of the individual clubs, UK P&I Club, is the Yang Ming Marine Transport Corp., (ID: 2898), a Taiwan Government part owned Corporation.

3. Panama and a few other nations which are members of the United Nations maintain diplomatic relations with Taiwan. Panama and Taiwan signed a Free Trade Agreement (FTA) in 2003, which took effect from January 2004.

4. The issue of non-consideration of Taiwan’s request for UN membership has been agitated in a 2007 Government Information Office, Taiwan, ROC article, "The Practical Imperative of UN Membership for Taiwan" it was postulated that “Exclusion of Taiwan from the UN hinders the development of Taiwan’s maritime shipping and fishing industries. ..... Taiwan upholds its moral obligation to assist ships in distress in its area of responsibility and engage in maritime rescues. Despite this, Taiwan-registered vessels are not accorded equitable and reciprocal treatment in the world community. Moreover, whether in cases of emergencies or disputes, the government of Taiwan is prevented from extending direct assistance to its nationals and other governments, having to commission NGOs to act in its stead.”( http://www.gio.gov.tw/unfortaiwan/inun01e.htm ).

5. India maintains trade and economic ties with Taiwan through the Indian Taipei Association, Taipei, Taiwan. Similarly Taiwan has reciprocal arrangements and maintains trade and economic ties with India through the Taipei Economic and Cultural Center in New Delhi.

IV. CONCLUSION

A. In view of II.B.6, III.C.1 and III.C.4 above, Taiwan is de facto and de jure subject to Article 301 of UNCLOS 1982 which states “Peaceful uses of the seas - In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.”

B. In view of IV.A above, the interception and forcing into a port of its jurisdiction, by threat to use military force (gunpoint diplomacy), of an unarmed merchant vessel of any flag State or/and its Master/crew of any nationality, by an armed vessel of Taiwan ROC on the high seas is de facto and de jure violation of Article 301 of UNCLOS 1982 read with Articles 34, 35, 36, 46 to 75, 86, 87, 92, 94, 97 of UNCLOS 1982.

C. Recommendations for MT Tosa incident of 17 April 2009:

1. Prohibition of use of force or threat of use of force by any State, whether or not a member of the United Nations, is now an integral part of customary international law , namely Article 2(4) of the Charter of the United Nations.

2. Taiwan was one of the original signatories of the Charter of the United Nations. Article 2(6) imposes on non-member states the regime of Article 2(4).

3. First principle of Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, Annex to Resolution 2625 (XXV), on 24 October 1970, states "The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations."

4. Article 301 of UNCLOS 1982 states "Peaceful uses of the seas - In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations."

5. It is thus clear that prohibition on use of force is binding on Taiwan even if it never had been a member of the United Nations. All nation states, member or non-member are bound by Article 301 of UNCLOS 1982 as it refers to "States Parties" and not "Members." The same applies to the first principle of Principles of International Law Concerning Friendly Relations and Co-operation among States, 24 October 1970, passed unanimously by UN General Assembly, which then included Taiwan.

6. Article 2(6) of the Charter of the United Nations states "The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security." which includes Article 2(4), "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

7. Hence the use of force or threat to use force upon MT Tosa (Panama Flag) under command of her Indian Master, Capt Glen Aroza, by CG 119 of Taiwan on 17 April 2009 on the "high seas" between 1300 hours 17 April 2009 and 1200 hours 18 April 2009 (GMT+9) at 24 09 00 N 122 26 00 E on the high seas, falls foul of Article 2(6) of the Charter of the United Nations. Breach of customary international law if established in this incident constitutes an international tort. Commission of an international tort involves the duty to make reparation. A proper investigation is required to establish the facts prior to a satisfactory resolution of this unpalatable incident.

(Sarvadaman Oberoi, Mobile: +919818768349 Email: manioberoi@gmail.com)

On the internet: http://www.slideshare.net/manioberoi/paper-on-status-of-taiwan-law-in-international-maritime-law

Free to copy for distribution mentioning source 8th July 2009.