I Making the Choice in High School
Fifty-five years ago in Taiwan, high school students were required in their second year to choose the academic area they wanted to pursue in college after passing the yearly college entrance examination. They had two choices: science, engineering and medicine on the one hand, or humanities, social sciences, law, and business on the other. In their third year of high school, they had to further specify the college departments they wanted to enter after they passed the college entrance exam following their graduation from high school.
I first decided to study law in 1966 to pursue my dream of making my country a free and democratic one under the rule of law. My father, who was a public administration major in college, advised me to follow the footsteps of the world-renowned Chinese diplomat Wellington Ku (顧維鈞 1888–1985) as my role model and to become an international lawyer, a diplomat, and a judge in the International Court of Justice in the Hague.
II Studying International Law in College and Visiting the United States as Taiwan’s Student Leader
I passed the college entrance exam in 1968 with good marks and got into my first-choice college – the law department of National Taiwan University, the
Meanwhile, in my third year in the law department, I passed a competition and was invited by the U.S. Department of State to join their International Visitors Program for student leaders from the Asia-Pacific region. I went to the U.S. in January 1971 for a trip of 70 days, including a three-day orientation program in Honolulu, Hawaii, a homestay of three weeks with an American family in the San Francisco Bay Area and campus stays at the University of Chicago, Harvard, Georgetown, U.T. Austin and several others. This was really an eye-opening trip for someone like me who had never gone abroad before. I watched student anti-Vietnam war demonstrations on the campus of Stanford University and a mass gathering in San Francisco’s Portsmouth Square of Taiwanese and Hong Kong students demonstrating their support for defending the disputed Diaoyutai Islands in the East China Sea. Japan, Taiwan, and Mainland China all claim sovereignty over the islands.
The dispute involved East Asian history, marine geology, offshore oil and gas development, economic interests, and international law. This encounter prompted me to study these issues when I took advanced law courses in New York University and Harvard three years later. I went home in late March 1971, just in time to join the local “Defend Diaoyutai Islands Movement” then unfolding on many university campuses in Taiwan and in front of the Japanese and U.S. embassies in Taipei City.
III Studying at NYU and Harvard Law Schools
I served my two-year military service after college in the Republic of China (ROC) Marine Corps and Navy from 1972 to 1974, then went to New York University (NYU) Law School to get my LL.M. degree in international law. I graduated in 1976 and continued my advanced study at Harvard Law School, where I got my S.J.D. degree in 1981. At NYU, I took public international law with Professor Tom Franck, Air Law and International Economic Law with Professor Andreas F. Lowenfeld, International Arbitration with Professor Martin Domke, Accounting for Lawyers with an accountant/lawyer practicing in New York City, and European common market law also with a practicing attorney in New York City.
When I got my LL.M. in international law from NYU, I unexpectedly received a letter of congratulations on March 1, 1976, from Associate Dean George Zeitlin whom I did not know, for “your outstanding academic record and quality of your performance.” My stay at NYU Law School was thus an enjoyable and memorable academic experience, as I got an advanced law degree. It was
At Harvard Law School I took Law of the Sea with Professor Louis B. Sohn, China and International Law with Professor Jerome A. Cohen, International Trade Law with Professor Harold J. Berman, Conflict of Laws with Professor Donald T. Trautman, and Agreements on International Investment in Third-world Minerals with Professor Sam Stern. My S.J.D. dissertation was entitled “Trouble over Oily Waters: legal problems of seabed boundaries and foreign investment in the East China Sea.” Professor Louis Sohn was my thesis supervisor, and I got my doctoral thesis approved in March 1981 by the graduate committee.
My thesis was published in 1984 by the University of Maryland Law School with a foreword by Professor Louis B. Sohn who was known as the “father of the modern law of the sea.” He wrote, “Dr. Ying-jeou Ma was one of my most diligent students, and this book is an excellent example of his ability to master the complex problems of boundary delimitation in the East China Sea and to collect the widely scattered and not easily obtainable documentation on this subject.” A Chinese version was published in 1986 in Taiwan entitled《從新海洋法論釣魚台列嶼與東海劃界問題》 (The Diaoyutai Islands and the Seabed Delimitation in the East China Sea under the new law of the sea).
IV Working for President Chiang Ching-Kuo
I went back to Taiwan in September 1981 after a six-month assistantship with Cole and Deitz, a Wall Street law firm with over 50 lawyers, and began to work for President Chiang Ching-kuo (1910–1988) of the ROC on Taiwan as his secretary and English interpreter. I also taught part-time at National Chengchi University College of Law in Taipei as an adjunct associate professor. The courses I taught were law of the sea, international trade law, public international law, and private international law (conflict of laws).
V Joining the Government Cabinet: Learning to Deal with Mainland China
In 1988, I was appointed Chairman of the Research, Development, and Evaluation Commission (RDEC), a government thinktank and, at the same time, the Executive Secretary of the newly established Mainland Affairs Commission in
The German experience of “Eine Deutschland, zwei Staaten” (One Germany, Two States), when the Federal Republic of Germany (FRG, or West Germany) and the German Democratic Republic (GDR, or East Germany) concluded the Grundlagenvertrag (Basis of Relations Agreement) of 1972, gave me fresh inspiration to deal with cross-strait relations. However, we in Taiwan did not follow the German model by setting up anything akin to Bundesministerium für innerdeutsche Beziehungen (Federal Ministry of Intra-German Relations). Instead, we established a Mainland Affairs Council to coordinate cross-strait policy among different ministries in the Executive Yuan (cabinet), with vice ministers of these ministries sitting as members of the Mainland Affairs Council which met once a month. Although neither the PRC nor the ROC regard cross-strait relations as de jure international relations to which international law should apply, my background in public international law and international economic law still greatly helped in handling cross-strait relations de facto.
VI As Justice Minster: Incorporating International Human Rights Conventions into Domestic Law
When I was appointed Minister of Justice, besides focusing on fighting narcotics, corruption, the underworld, and election vote-buying (election fraud), I engaged myself in incorporating important international conventions regarding human rights in general, women’s rights, children’s rights, and rights of the disabled into our domestic law system which our country has not been able to join in the past due to our expulsion from the United Nations in October 1971 under the General Assembly Resolution 2758. They included the 1966
VII As President: Applying International Law to Benefit my Country and People
During my tenure as president of the ROC from 2008 to 2016, the application of international law was required or relevant in the signing of the following six occasions:
The 2010 Cross-Strait Economic Cooperation Framework Agreement (ECFA),
The 2010 Taiwan-Singapore Economic Cooperation Agreement; and
The 2011 Taiwan-New Zealand Economic Partnership Agreement;
The 2013 Taiwan-Japan Fisheries Agreement:
The 2015 Taiwan-Philippines Agreement Concerning the Facilitation of Cooperation on Law Enforcement in Fishery Matters; and
The issue of prior notification requirement for innocent passage by American warships
The first occasion was the signing of the 2010 Economic Cooperation Framework Agreement between the People of the Taiwan Area and the People of the Mainland Area (ECFA). This is in fact a big free trade agreement (FTA). Ever since President Chiang Ching-kuo (1910–1988) of the ROC decided in July 1987 to lift the 38-year-old martial law in Taiwan and allow the people on either side of the Taiwan Strait to visit their relatives on the other side, interchanges between Taiwan and mainland China for travel, study, trade, and investment increased dramatically. The need to have many bilateral agreements to cover cross-strait ties in almost all walks of life became quite urgent. After I was inaugurated president of the ROC in May 2008, the two sides of the Taiwan Straits immediately began to negotiate air and sea transportation agreements followed by cross-strait trade, investment, financial supervision, and cooperation in agricultural, medical, judicial, nuclear, and a number of other governmental functions. During my eight-year presidency, an unprecedented number of 23 bilateral agreements between Taiwan and mainland China were concluded, covering almost all walks of life. They were not “international” agreements as such but were certainly “cross-strait” agreements, so the basic concept of treaty law was frequently referenced.
The second and the third occasions were the 2010 Taiwan-Singapore Economic Cooperation Agreement and the 2011 Taiwan-New Zealand Economic Partnership Agreement. The two agreements were concluded right after the completion of ECFA with the Chinese mainland and were stimulated by the success of the ECFA. The two agreements were high-quality FTAs, meaning tariffs and other non-tariff barriers were kept as low as possible. And the three agreements together have combined to raise the FTA coverage of Taiwan’s total exports by a factor of 69 (from slightly more than 1 percent to nearly 10 percent.)
B Taiwan-Japan Fisheries Agreement
This agreement covered an area of 70,000 square kilometers of sea around the disputed Diaoyutai Islands located in the East China Sea. The area is nearly twice the size of Taiwan (36,000 square kilometers), and has been a traditional fishing ground for Taiwanese fishermen mostly from the northeastern part of the island since time immemorial. Taiwanese fishermen are now free to operate without interference from the Japanese coast guard ships which previously used to seize and fine them. A permanent Taiwan-Japan Fishery Committee was also set up by the Agreement to oversee the implementation of the Agreement and solve fishery disputes that may arise in the future. This agreement had been negotiated previously between Taiwan and Japan for over 20 years without any success.
The conclusion of the tricky but needed agreement during my presidency greatly reduced the size of the troublesome Diaoyutai Islands dispute, leaving the territorial dispute for future negotiations. The agreement was overwhelmingly welcomed by Taiwan fishermen and applauded by the U.S., the ASEAN countries, and even the European Union, and many other countries worldwide. The only party that was displeased by the agreement was the fish because their catch increased threefold. They have been few fishery disputes any more between Taiwan and Japan since 2013.
C Taiwan-Philippines Agreement Concerning the Facilitation of Cooperation on Law Enforcement in Fishery Matters
The agreement was the result of a shooting incident on May 9, 2013, during which a Philippines gunboat chased a Taiwanese fishing boat for two hours and its sailors opened fire with automatic weapons at the Taiwanese fishing boat for the latter’s alleged illegal fishing in the Filipino waters, killing one fisherman on board and seriously damaging the new fishing boat, which had to be towed back to Taiwan. Taiwan protested and demanded an apology, compensation for damages, criminal action against the eight Filipino sailors, and
In addition, Taipei and Manila signed an agreement on promoting cooperation in law enforcement on fishery matters in the South China Sea, an unprecedented move. The Agreement has seven articles covering the avoidance of violence or unnecessary use of force in law enforcement, the establishment of an emergency notification system (activated within one hour after the occurrence of a similar incident), and the establishment of a prompt release system after the detention of sailors (no more than 3 days). Again, disputes of this kind have troubled Taiwan – Philippines relations for over 40 years. This is also the first time ever that Taiwanese fishermen were able to recover substantial damages from the perpetrators. In the trial court, they were all found guilty and sentenced to eight years of imprisonment. They were all discharged from their government service. They all appealed. Since then, no incident of this sort has occurred between Taiwan and the Philippines in the South China Sea.
D Dispute with the U.S. on Innocent Passage of an American Warship in Taiwan’s Territorial Sea
The regime of innocent passage of ships through the territorial sea of a coastal state is provided for in Article 17 of the 1982 United Nations Convention on the Law of the Sea. This article does not distinguish between commercial and government ships including warships. It was therefore taken for granted by the U.S. that there is no distinction between military and non-military ships in regard to the innocent passage in a territorial sea. The ROC’s 1998 Act on the Territorial Sea and the Contiguous Zone provides in Paragraph 3 of Article 7 that foreign military and government ships shall notify the coastal authorities in advance before entering the ROC’s territorial sea.
Similar requirements of prior notification are required by roughly 42 countries around the world. Mainland China and Vietnam even require foreign military or government vessels to obtain prior authorization instead of providing only notification before they enter the territorial sea of these countries. The U.S. called both such requirements “excessive claims” and stated that it would not impose such a requirement on warships or government ships of any state desiring to enter U.S. territorial sea. This dispute has not been resolved yet.
Another undertaking that I have had in the last 20 years is that I have doubled as the editor-in-chief of the Chinese (Taiwan) Yearbook of International Law and Affairs1 while I worked in various government positions such as cabinet minister, Taipei City Mayor, and President of the country. I have enjoyed volunteering for this role for a simple reason: keeping myself abreast of the development of international law and with the young scholars working in the Chinese (Taiwan) Society of International Law. Of course, the untiring support of my deputy, Professor Chun-i Chen, has been indispensable and priceless.
In conclusion, I would say that I made an absolutely correct decision more than 50 years ago to study international law when I was young, and what I learned has greatly helped me during my career to solve many age-old, difficult problems in the process of serving my country and my people.
Former President of the Republic of China on Taiwan (2008–2016); Editor-in-chief of the Chinese (Taiwan) Yearbook of International Law and Affairs.
See Ying-jeou Ma, Chun-i Chen & Pasha L. Hsieh, “The Chinese (Taiwan) Yearbook of International Law and Affairs: Contributing to the Grotian Moment in Asia”, 2019 Neth. Y.B. Int’l L. 99.
