Reminder on the Status of the Taiwan Strait in the Law of the Sea
The visit to Taiwan by the Speaker of the United States (US) House of representatives Nancy Pelosi on 2nd August 2022 led to a strong reaction from China, which organised major military exercises in the Taiwan Strait throughout August. China has long criticised the passage of warships from countries such as the US, the United Kingdom, France, Australia and Canada through the Strait. In the light of recent events, it seems worthwhile to take stock of the characteristics of the Taiwan Strait from the perspective of the international law of the sea.
The United Nations Convention on the Law of the Sea
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) distinguishes between several categories of straits. The Taiwan Strait comes under Article 36 of the Convention because it fulfils the criteria of this article: on the one hand, it is a strait used for international navigation, as it is an important maritime route for world trade. On the other hand, the Taiwan Strait includes a route through an exclusive economic zone (EEZ), due to its breadth (70nm at the widest point). Therefore, Article 36 specifies that the regime applying to this route falls under the provisions applicable to the EEZ.
UNCLOS grants rights to all States in the EEZ, and specifically freedom of navigation and overflight. Article 58 specifies that the foreign vessel enjoys free navigation “with due regard to the rights and duties of the coastal State”. The Convention lists exhaustively the rights of the coastal State in the EEZ; they have sovereign rights over the exploration, exploitation, conservation and management of resources. It is thus clear that the passage of warships through the Taiwan Strait does not affect the rights of the coastal State.
Article 58 further stipulates that States must abide to the laws and regulations adopted by the coastal State, and these laws must comply with the provisions of the Convention and international law. Therefore, the coastal State can only adopt laws to regulate the navigation of foreign ships, for example by establishing shipping lanes, but it cannot justify the adoption of rules that prohibit or restrict the passage, because it would exceed its powers.
China’s interpretation of UNCLOS at odds with U.S and rest of the world
China, however, does not conform to this interpretation of UNCLOS and maintains a confusion in order to claim maximum control over the Taiwan Strait. Some Chinese media close to the government mention a right of innocent passage through the EEZ, which has no existence in the Convention. Moreover, the Chinese authorities regularly complain about provocations by foreign nations, mainly the United States, when they transit their warships through the Strait by a freedom of navigation operation. The freedom of navigation that prevails in the EEZ allows for this passage, and the qualification of “provocation” has no credible legal basis, besides the fact that only China can decide what is provocative to it.
Furthermore, the practices of People’s Liberation Army (PLA) vessels are at odds with Beijing’s stance on the Taiwan Strait. The Chinese Navy indeed sent warships into foreign EEZs. During several US-led RIMPAC exercises, uninvited PLA vessels have been detected in the US EEZ, presumably in the process of gathering intelligence . In another case, a Chinese warship sailed along the coast of Australia through the EEZ, approaching Australian military bases in the area .
These activities fall within the scope of Article 58 and freedom of navigation and are not contrary to UNCLOS. However, they do not correspond to China’s own position regarding the Taiwan Strait, which should therefore be considered as an international strait subject to the sovereignty of coastal States in the parts constituting territorial sea and freedom of navigation in the parts constituting an EEZ.
