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Legal Status of the Taiwan Strait

Jun 30, 2022
  • Li Huan

    Research Fellow, China Institutes for Contemporary International Relations

There is no legal basis for “international waters” in the international law of the sea. It is false to call the Taiwan Strait international waters, Chinese Foreign Ministry spokesman Wang Wenbin said at a regular news conference on June 13 when asked by a reporter from Bloomberg. It is a fact.

Some foreign media said there are more and more disputes between China and the United States concerning the Taiwan question. Clarifying the legal status of waters in the Taiwan Strait will help China and the U.S. have a better understanding and talk about Taiwan more accurately. It will set guardrails for China-U.S. relations, especially on the Taiwan question. 

“International waters” not a legal term 

The term “international waters” used by the Bloomberg reporter is not a formal legal term in the international law of the sea, but it is used informally by some countries to refer to “high seas.” The 1982 United Nations Convention on the Law of the Sea does not give a definition, but in Part VII, titled “High Seas,” it stipulates in Article 86 that “The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” Thus, the waters covered in the law of the sea include the high seas, exclusive economic zones, territorial seas, internal waters and archipelagic waters — but not “international waters.”

Situated between the mainland and the islands of a country, the Taiwan Strait connects the East China Sea and the South China Sea. Many international ships sail there. Ned Price, spokesman for the U.S. Department of State stated: “The Taiwan Strait is an international waterway,” which again is not accurate legal language. Part III of the Convention, titled “Straits Used for International Navigation,” stipulates in Article 37: “This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”

Since the Convention only describes but does not give a clear definition of this type of strait, the Taiwan Strait may be classified as such on the basis of its geographical characteristics and functionality alone. But the regime of navigation under this part does not apply at all. According to Article 35, “Nothing in this Part affects the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas.”

As stipulated in Article 36: “This Part does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; in such routes, the other relevant Parts of this Convention, including the provisions regarding the freedoms of navigation and overflight, apply.”

These provisions exclude the application of Part III of the convention to the Taiwan Strait. The regime of navigation is to be determined in accordance with the legal status of the different waters in the Taiwan Strait. 

Composition of waters in the Taiwan Strait and the navigation regime 

Because of the special situation of Taiwan, China has so far only announced the baselines of the territorial waters of the mainland, the Xisha Islands and the Diaoyu Islands, while the baselines of the territorial waters of the remaining places, including the island of Taiwan and the Penghu Islands, have not yet been announced. Under provisions of the convention, “internal waters” means all waters on the landward side of the baseline of the territorial sea that form part of the territory of the state. The territorial sea extends to a limit of 12 nautical miles from the baseline of a coastal state. Within this zone, the airspace above the sea and the seabed and subsoil are part of the territory of the state. A coastal state exercises full sovereignty over its internal waters and the territorial sea.

The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured, but inside the zone the coastal state has control over customs, fiscal, immigration and sanitary matters. A state’s exclusive economic zone is an area beyond and adjacent to the territorial sea, extending seaward to a distance of no more than 200 nautical miles out from its coastal baseline. In the exclusive economic zone, the coastal state has sovereign rights “for the purpose of exploring and exploiting, conserving and managing the natural resources” and for “the economic exploitation and exploration of the zone,” as well as jurisdiction that includes the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment.

The Taiwan Strait is approximately 70 nautical miles at its narrowest and about 220 nautical miles at its widest. Under the convention and Chinese law, the Taiwan Strait’s waters comprise China’s internal waters, territorial sea, contiguous zone and exclusive economic zone. States have different rights and obligations over different waters, and different modes of navigation apply to different waters.

For example, ships of all states, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea (Articles 17, 18 and 19); and “[i]f any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.” (Article 30).

For another example, in the exclusive economic zone all States enjoy freedom of navigation and overflight (Article 58). Article 11 of the Chinese law that governs the exclusive economic zone and continental shelf similarly provides that, “[a]ll states shall, on the premise that they comply with international law and the laws and regulations of the People’s Republic of China, enjoy the freedom of navigation and overflight in its exclusive economic zone.” 

Who is breaking international rules? 

When the final Convention on the Law of the Sea was presented in 1982, China was one of the first signatories. To date, there are more than 160 parties, excluding the United States. While there are certainly domestic political reasons for the U.S. not joining the convention, it is essentially because of the its hegemonic mindset seeking its global maritime interests. Not being a party to the convention does not prevent the U.S. from enjoying the rights the convention provides, but it does help the country circumvent its duties.

Therefore, in the face of the convention, which provides that “[t]he high seas shall be reserved for peaceful purposes” (Article 88), and that in exclusive economic zones “States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law insofar as they are not incompatible with this Part” (Article 58). The United States can choose to ignore these provisions.

U.S. warships this year have been sailing in the Taiwan Strait about once a month on average. Of course, because a large portion of the strait falls within China’s exclusive economic zone, the U.S. has “freedom of navigation.” Because the U.S. is not a party to the convention, it can claim — without “regard to the rights and duties of the coastal State” — that this represents a U.S. “commitment to a free and open Indo-Pacific region.”

Such freedom of navigation borders on provocation by supporting Taiwan separatists and continually hollowing out and deflating the “one China” policy. For more than 70 years, if it were not for America’s constant support for advocates of Taiwan independence, the road to peaceful reunification across the Taiwan Strait would not have been so tortuous.

In accordance with the convention and Chinese law, China’s government enjoys sovereignty and jurisdiction over the waters of the Taiwan Strait, while respecting the legitimate rights of other countries in these waters. If this question is deliberately manipulated using the false claim that China is in violation of the rules of the international law of the sea, China certainly needs to clarify which is right. 

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