The U.S. – China dispute over the Taiwan Strait’s legal regime

Jun 23, 2022
TAIWAN STRAIT (Aug. 30, 2020) The Arleigh Burke-class guided missile destroyer USS Halsey (DDG 97) conducts a routine transit through the Taiwan Strait.

In the most recent flap over the legal regime governing passage of warships through the Taiwan Strait, both China and the U.S. are partially right –and partially wrong.

The media have been blaring the news that China has claimed sovereignty over the Taiwan Strait. Some paint it as an ominous warning to the U.S. and a gross violation of the ‘international order’. This misinterprets and sensationalises what China publicly said or probably meant. Indeed there may be nuances missed in translation regarding this complex issue. China said it enjoys sovereign rights and jurisdiction over the Taiwan Strait, while respecting the legitimate rights of other countries in the relevant maritime areas.” The US responded that the Strait’s waters are “international ” and that it is an ‘international waterway’. Both are partially right –and partially wrong.

More specifically, China’s Foreign Ministry spokesman Wang Wenbin said “the Strait fell within China’s territorial waters and exclusive economic zone as defined by the United Nations Convention on the Law of the Sea (UNCLOS).

U.S. State Department spokesman Ned Price said “The Taiwan Strait is an international waterway, meaning that the Taiwan Strait is an area where high seas freedoms, including freedom of navigation and over flight, are guaranteed under international law”—presumably UNCLOS which the U.S. has not ratified. This is a nuanced version of the usual US mantra that the Strait is “international waters”. Neither ‘international waters’ nor ‘international waterway appear in the foundation of the international order in the oceans, the UN Convention on the Law of the Sea (UNCLOS).

Indeed, there is no such legal entity international waters . This is an invention of the US Navy to connote to its commanders waters in which their vessels have ‘freedom of navigation’.

International waterways include straits that connect two areas of the high seas.. In such waterways all ships have a right of passage based on customary international law.

Let’s look at the specifics.The maximum width of the Taiwan Strait is about 120 nautical miles (nm). From its coastal baselines on opposite shores it is composed of 12 nm territorial seas in and over which the coastal state has sovereignty, and a further 12 nm of contiguous zones in which the coastal state has the right to prevent and punish infringements of its customs, sanitary, fiscal, and immigration regulations. The rest is Exclusive Economic Zone (EEZ) in which the coastal state –China—has sovereign rights regarding management of the resources as well as the duty to protect the environment.

There are no legal high seas in the Taiwan Strait. While China can not exercise jurisdiction over foreign warships in its EEZ that does not mean they can or should do anything they want. The issue for the U.S. is whether or not warships and warplanes have the right of freedom of navigation in the Strait. According to UNCLOS, they do. However as a non party, US rights are unclear. Nevertheless customary law supports its position. But this US position extends far beyond the Taiwan Strait. The idea that it has freedom of navigation for its warships and warplanes anywhere beyond the narrow territorial seas of coastal countries underpins its global naval hegemony. Moreover it insists that its allies like Australia support this concept..

However freedom of navigation in the EEZ is not totally ‘free’. It must be exercised under the conditions of UNCLOS and thus depends on what the US warships and warplanes are doing during their passage. Indeed, they have the obligation to pay ‘due regard’ to the rights and duties of the coastal state.

For example, if they are undertaking cyber or electronic warfare (EW) this may be viewed as a threat or use of force –not allowed by the UN Charter– let alone UNCLOS. Indeed, the U.S. officially views some cyber and EW attacks this way. Particularly relevant are active signals intelligence activities conducted from aircraft and ships, some of which are deliberately provocative, intending to generate programmed responses. Other actions may interfere with communication and computer systems. China thinks that some are not consonant with the due regard and peaceful purposes provisions of UNCLOS.

Marine scientific research in the EEZ is subject to the prior consent of the coastal state. If the warships or warplanes are deploying information collection devices—including drones—they may be subject to this prior consent regime. The U.S. may argue that it is undertaking military or hydrographic surveys and they are not subject to that regime. But UNCLOS provides that “the deployment and use of any type of scientific research installation or equipment in any area of the marine environment” requires prior consent. Since the U.S. is not a party to UNCLOS, it has little credibility or legitimacy unilaterally interpreting these provisions to its benefit.
Simple naval passage and even manoeuvres are part of the freedom of navigation in the EEZ. But China may argue that extended tests of weapons, such as laying of depth charges, launching torpedoes, live fire exercises or the covert laying of arms within an EEZ violate the duty to pay ‘due regard’ to the rights and duties of the coastal state, especially their duty to protect the environment including its fish and mammals. Moreover, the legality of military manoeuvres and missile exercises that temporarily prevent other states from using part of their EEZ is questionable.

But this is more than a legal dispute. It also raises the issue of the status of Taiwan. China’s Foreign Ministry spokesperson said “Relevant countries claim that the Taiwan Strait is in international waters with the aim to manipulate the Taiwan question and threaten China’s sovereignty.”

The US-China agreed One China Policy recognises the PRC as the sole legal government of China. But the U.S. does not support the PRC’s position that Taiwan is part of China. According to China, Taiwan is part of China and thus the entire Strait is under China’s jurisdiction. If the U.S. is implying by its insistence on the right of passage of its warships and warplanes that Taiwan is not part of China and has separate jurisdiction and regimes governing its claimed portion of the Strait that allow such passage, then it is challenging China’s sovereignty claim to Taiwan. At the least it is provoking and trying to intimidate (‘deter’) China.

Although the U.S. has a legal right to such passage, exercising it is a political decision. Its warships and warplanes could use the Bashi Channel between Taiwan and the Philippines as its allies have done.

In 2021 when the U.K. sent the Queen Elizabeth aircraft carrier strike group through the South China Sea, it announced it would not sail through the Taiwan Strait. Unlike the U.S. which seems to enjoy provoking China—it chose not to do so.
Also last year, when Germany deployed the frigate Bayern through the South China Sea, it pledged that it would not enter the Taiwan Strait.

In short, China is right that the Taiwan Strait is not ‘international waters’. But warships and warplanes have the right to pass through it provided they pay ‘due regard’ to China’s rights and duties. The questions are “do they do so’ and if so, should they do so even if it is ‘legal’?

A shorter edited version of this piece appeared in the South China Morning Post.

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