Navigation of Warships in the Taiwan Strait – EJIL: Talk! – Go Health Pro

For many years, the United States has been sending warships through the Taiwan Strait in a corridor it considers to be “international waters”. The transits, which are regularly announced by the US military, are intended to demonstrate US commitment to a “free and open Indo-Pacific” and to “upholding freedom of navigation for all nations as a principle”. The route through the Strait is also increasingly used by warships from other countries, including Canada, the United Kingdom, France, the Netherlands, Germany, Australia, New Zealand, and Japan.

When confirming the passage of two German navy vessels in September 2024, the German Minister of Defence said: “International waters are international waters. It is the shortest and, given the weather conditions, also the safest route. So, we’re going through.” The statement sought to convey that such transits were routine. However, it has been more than twenty years since a German warship last sailed through the Taiwan Strait, and Germany’s latest move comes at a time of rising tensions in the region.

The People’s Republic of China considers these transits as a challenge to its sovereignty and as undermining regional peace and stability. In reaction to the passage of the two German ships in September, the PRC’s embassy in Berlin declared that the Taiwan Strait was “Chinese waters” and that “there are no so-called ‘international waters’ at all”.

The Waters of the Taiwan Strait under the UN Convention on the Law of the Sea

The Taiwan Strait, which connects the East and South China Seas and which is heavily used for international navigation, is approximately 86 nm wide at its narrowest (for a more precise representation, see Lott, p. 172 f.). This implies that the Taiwan Strait comprises waters within the meaning of Art. 35 (b) of the UN Convention on the Law of the Sea (LOSC), i.e. “waters beyond the territorial seas of States bordering straits”. According to Art. 35 (b), the legal status of such waters as exclusive economic zones (EEZs) or high seas is not affected by the regime of straits under Part III of the LOSC. Moreover, LOSC Art. 36 provides that Part III does not apply if there exists through the strait a route through the high seas or through an EEZ of similar convenience with respect to navigational and hydrographical characteristics.

Hence, the innocent passage regime under Section 3 of LOSC Part II applies to those portions of the Taiwan Strait that are part of the territorial sea. Beyond these territorial sea areas on either side of the Strait there is an EEZ corridor in the middle, where Part V of the LOSC applies. Both the PRC and Taiwan have declared an EEZ. According to LOSC Art. 58 (1), all States enjoy in the EEZ the freedoms of navigation and overflight and “other internationally lawful uses of the sea related to these freedoms”.

“International Waters” and the PRC’s Position

“International waters” does not appear as a formal term in the LOSC. To clarify the legal status of the Taiwan Strait, “international waters” is used by the US Indo-Pacific Command as a descriptive term to refer to “all ocean areas not subject to the sovereignty of any nation”, which included the contiguous zone (CZ), the EEZ, and the high seas (for Taiwan’s position on the legal status of the waters in the Taiwan Strait, see here). The term “international airspace” is used by USINDOPACOM to denote the “airspace beyond national airspace and not subject to the sovereignty of any nation”, i.e. airspace over the CZ, EEZ, and high seas. Needless to say, both the terms “international waters” and “international airspace” are commonly used in international legal discourse. But the PRC strongly rejects these notions for political reasons.

The PRC’s position on the legal status of the Taiwan Strait was summarized by a Foreign Ministry spokesperson at a press conference in 2022:

Taiwan is an inalienable part of China’s territory. The Taiwan Strait ranges in width from about 70 nautical miles at its narrowest and 220 nautical miles at its widest. According to UNCLOS and Chinese laws, the waters of the Taiwan Strait, extending from both shores toward the middle of the Strait, are divided into several zones including internal waters, territorial sea, contiguous zone, and the Exclusive Economic Zone. China has sovereignty, sovereign rights and jurisdiction over the Taiwan Strait. At the same time, it respects the lawful rights of other countries in relevant waters.

There is no legal basis of “international waters” in the international law of the sea. It is a false claim when certain countries call the Taiwan Strait “international waters” in order to find a pretext for manipulating issues related to Taiwan and threatening China’s sovereignty and security. China is firmly against this.

Deconstructing the PRC’s Approach

The formulation “Chinese waters” recently used by the PRC’s embassy in Berlin is purposely vague. It does not necessarily mean waters under the sovereignty of the PRC, but could also be understood as referring to the Chinese CZ or EEZ. Equally vague on this point is the Foreign Office statement quoted above. While there is nothing wrong with talking about sovereignty, sovereign rights, and jurisdiction in relation to the categories of internal waters, territorial sea, CZ, and EEZ, the PRC consistently refrains from specifying which concept applies to which part of the Taiwan Strait.

The LOSC and general international law are fairly clear: China has full territorial sovereignty over its internal waters. In its territorial sea, China exercises sovereignty subject to the regime of innocent passage. In the CZ, the country may exercise control necessary to prevent and punish infringement of its customs, fiscal, immigration, and sanitary laws and regulations within its territory and territorial sea. And in the EEZ, it has sovereign rights and jurisdiction relating to a limited number of economic, environmental, and scientific matters (see also the assessment by Zou, p. 250 ff.).

The problem lies in the PRC’s interpretation of these concepts and the way it seeks to impose this interpretation on other States. Five examples may demonstrate how the PRC “distorts” core provisions of the LOSC through its national legislation and practice.

First, the PRC has declared straight baselines along almost the entire Chinese mainland coast, including straight baseline segments in the Taiwan Strait of up to 83.6 nm. These straight baselines increase the portion of China’s internal waters and shift its territorial sea further into the Strait. According to the US Department of State (p.7), the coastline in this area could be characterized as being deeply indented and fringed with islands. However, it is questionable whether the selection of certain base points along the Taiwan Strait is in accordance with LOSC Art. 7 (1) and (3) as regards their location.

Second, Art. 6 (2) of the 1992 PRC Law on the Territorial Sea and the Contiguous Zone stipulates that, to enter the territorial sea of the PRC, foreign military ships must obtain permission from the PRC Government. Such requirement finds no basis in Section 3 of Part II of the LOSC. As Germany declared upon accession to the LOSC in 1994: “None of the provisions of the Convention, which in so far reflect existing international law, can be regarded as entitling the coastal State to make the innocent passage of any specific category of foreign ships dependent on prior consent or notification.”

Third, according to Art. 13 of the same Law, the PRC has the authority to exercise powers within its CZ for the purpose of preventing or punishing also infringement of its security laws and regulations. Such an extension of CZ control to security matters is not in line with LOSC Art. 33.

Fourth, the 1998 PRC EEZ and Continental Shelf Act provides in Art. 11 that any State shall enjoy the freedoms of navigation and overflight and other legal and practical marine benefits associated with these freedoms in the EEZ of the PRC under the condition that it observes international law and the laws and regulations of the PRC. LOSC Art. 58 (1) does not contain an obligation to respect national legislation. It merely stipulates that States enjoy these freedoms “subject to the relevant provisions of this Convention”. And in Art. 58 (1) it is clarified that the other internationally lawful uses of the sea must be exercised in a manner “compatible with the other provisions of this Convention”. LOSC Art. 58 (3) obliges States, when exercising their rights in the EEZ, to comply with the laws and regulations adopted by the coastal State in accordance with the provisions of the LOSC and other rules of international law in so far as they are not incompatible with Part V. Art. 58 (3) refers to laws and regulations adopted by the coastal State on the basis of its sovereign rights and jurisdiction under Art. 56 (1). According to Proelss (Art. 58 MN 24), if a coastal State enacted measures not covered by the scope of its sovereign rights and jurisdiction in the EEZ, other States were not bound by them. Moreover, Part V of the LOSC provides only for limited enforcement jurisdiction, as in Art. 73, which serves to protect the resource-related rights of the coastal State in the EEZ. In contrast, Art. 11 of the PRC EEZ and Continental Shelf Act seems to open the door to law enforcement in all kinds of situations.

Finally, pursuant to Art. 8 of the 1992 PRC Surveying and Mapping Law (as amended in 2002 and 2017), foreign organizations and individuals that wish to conduct surveying and mapping in the territorial air, land, or waters of the PRC, or in other maritime areas under its jurisdiction shall be subject to approval by the competent PRC authorities, and shall observe the provisions of relevant laws and administrative regulations of the PRC. Art. 8 applies to military surveying and mapping as well. The provision reflects the PRC’s overly broad interpretation of the concept of marine scientific research (MSR), which is intended to bring under its MSR-related jurisdiction in the EZZ – pursuant to LOSC Art. 56 (1) (b) (ii) in conjunction with Part XIII of the LOSC – a wide range of activities, including hydrographic and military surveys.

Conclusion

The PRC is convinced that, as a sovereign State, it enjoys considerable discretion in the application of national laws and regulations in maritime areas under its jurisdiction. Notably, Chinese authorities do not define the concept “maritime areas under the jurisdiction of the PRC” – a formulation also used in the 2021 Coast Guard Law and the revised Maritime Traffic Safety Law (for a critical assessment, see here, here, and here). This illustrates how the PRC exploits and stretches the international law of the sea to advance national security interests. As Kardon (p. 187 ff.) points out, the PRC’s domestic law on these matters is deliberately vague in order to give the Chinese authorities as much room for manoeuvre as possible. Based on this broad legislation, the PRC has intensified its law enforcement activities in the Taiwan Strait.

After all, it needs to be stressed that military activities can be carried out in another State’s EEZ as internationally lawful uses of the sea in accordance with LOSC Art. 58 (1). Coastal States do not enjoy sovereignty in the EEZ, and the matters over which coastal States have jurisdiction in that zone are set out exhaustively in Part V of the LOSC. This Part does not give coastal States jurisdiction over foreign military activities in the EEZ. Germany made clear when acceding the LOSC that coastal States did not enjoy residual rights in the EEZ. In particular, in Germany’s view, “the rights and jurisdiction of the coastal State in such zone do not include the rights to obtain notification of military exercises or manoeuvres or to authorize them”. The bottom line is that the PRC has no authority under the international law of the sea to restrict in any way navigation of foreign warships in the Taiwan Strait’s EEZ corridor.

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