Have you ever gotten into an argument with a tankie over Taiwan Strait transits? Have you heard someone, maybe a Chinese official, say that the strait is Chinese territory? Have you then tried to understand how the various maritime borders that line the strait actually work, and failed miserably to penetrate the legal language of UNCLOS, the international treaty that governs them?
If the answer to the above is “yes,” then this article is not only for you. It is in some sense a love letter to you and the no doubt slightly obsessive interest you have in Taiwan and the geopolitics that quite literally surrounds it.
In September of this year, two German navy vessels sailed down the Taiwan Strait, on their way from South Korea to the Philippines. In recent years, it has become almost normal for European countries’ navies to do this when in the region, although for Germany specifically this was the first time in 22 years that they had done so. Of course, the U.S. Navy does so multiple times a year.
Predictably, the People’s Republic of China criticized and complained. Subjectively, we can say that they probably complained a bit louder because there had been something of a norm that Germany didn’t do these transits. There is also a wrinkle here that German naval officers had “trailed” the possibility some weeks before, which gave the P.R.C. ample warning.
After the transit, the Chinese ambassador in Berlin also criticised the German navy, saying that the strait is “not international waters.” This echoes comments made by Chinese Ministry of Foreign Affairs spokesperson Wang Wenbin (汪文斌) in 2022, when he stated that “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.” The U.S. and Taiwan have both argued that the middle of the strait is international waters, after Bloomberg reported that China was saying it is not in private, shortly before Wang Wenbin’s remarks.
Christian Schaller, a researcher specializing in International Law at the German Institute for International and Security Affairs, argued in an article published after the German transit that the way China talks about its sovereignty in the strait is “purposely vague.” I agree. I think there is at least partly an intent to create confusion among observers who are not legally literate, by invoking a sense of a Chinese sovereignty claim without specifying it in ways that international law experts would immediately shoot down. It must be noted that this is not always the case. P.R.C officials can be quite clear that ships in the strait have a right to be there.
When discussing strait transits on social media, it is common to encounter P.R.C.-aligned voices (tankies) arguing that because of UNCLOS and the Chinese claim, it is illegal or illegitimate for other countries to sail their military vessels in the strait. If you are not a legal scholar, it can be hard to confidently identify and pick apart the relevant sections of UNCLOS. I myself have struggled with this for years, which is the genesis of this article.
So, I asked some legal scholars to do that picking apart for me.
Firstly though, some basic material.
Donald Rothwell is a professor of international law at Australia National University focusing on maritime law. He told me that UNCLOS is like the “constitution of the sea.” UNCLOS stands for United Nations Convention on the Law of the Sea. It was conceived in the 1970s and signed in 1982. It lays down an entire legal code that specifies how much sea states can claim as their territory, and how they can operate in and out of their own and others’ territory, including how they can sail through straits that are the territory of another state. It also governs things like maritime pollution.
Distances in UNCLOS are measured in nautical miles. One nautical mile is 1.85 kilometres or 1.15 miles.
There are three types of waters that concern us when thinking about whether something is “Chinese waters.” These are the territorial sea, the contiguous zone and the exclusive economic zone, often abbreviated to EEZ.
The territorial sea is the water that is between zero and 12 nautical miles off your coast or your “baseline,” which is a line that states can draw around a heavily indented or islanded piece of coast. Territorial sea, as the name suggests, is the sovereign territory of a state. Other countries’ navies can only enter this area under what is called “innocent passage.”
Innocent passage is governed by Part II, Section 3 of UNCLOS and effectively means that ships cannot carry out activities during their passage, including military activities like collecting information, flying aircraft or firing weapons. Submarines must surface under innocent passage. Chi-Ting Tsai (蔡季廷), an associate professor in international law at National Taiwan University who has advised the Taiwanese government on maritime law issues, explained that there is substantial disagreement between countries, including the U.S., China and Taiwan, on whether innocent passage is assumed or needs to be granted.
The EEZ extends out from 12 to 200 nautical miles. Again, the name reveals the purpose. States control economic activity in this area and can enforce that. However, they can’t enforce much else, and the navies of other states have freedom of navigation within an EEZ.
This freedom of navigation is the crux of the disagreement over the phrase “international waters.” The U.S. appears to fear that by using it China intends to establish a new norm that restricts this freedom of navigation. Nonetheless, the U.S. does not consider that its Taiwan Strait transits are Freedom of Navigation Operations (FONOPS).
The contiguous zone extends from 12 to 24 nautical miles, making it a part of the EEZ. In this region states can enforce more of their laws, particularly those pertaining to illegal activity in the territorial sea. Customs law is usually given as the example here. Again, navies of other states have freedom of navigation here according to UNCLOS.
To reiterate, by UNCLOS any navy vessel can sail in the EEZ of another state, including their contiguous zone.
Part III, Section 2 of UNCLOS discusses the concept of transit passage. In situations where a strait is less than 24 nautical miles wide at its narrowest point, there would be no region of EEZ in the middle of the strait and ships would have to enter the territorial sea on either side. Instead of utilizing innocent passage, Article 38 allows transit passage under this circumstance. Ships utilizing transit passage face most of the same restrictions as innocent passage, but there are important exceptions. Aircraft can use transit passage but not innocent passage. Submarines do not need to surface during transit passage. And coastal states can suspend innocent passage but not transit passage.
Article 38 effectively states that if a ship could reasonably go around a strait instead of through it, without travelling extra distance or through worse sea conditions, it cannot claim transit passage in that strait.
It is the misreading of these parts and articles that lead people to claim UNCLOS does not allow for foreign naval vessels to sail down the Taiwan Strait. People may assume that conditions automatically apply since it is a strait, and they may assume that since Taiwan is an island, ships can “go around.”
But, and this is very much the raison d’etre of this piece, because the Taiwan Strait is substantially wider than 24 nautical miles, and wider in fact than 48 nautical miles, there is no cause to apply these articles. Both experts I spoke to confirmed this. There isn’t even a term to describe this kind of transit. It’s just … “normal.” According to Donald Rothwell, there is a legal definition of a strait and a “common sense” geographical definition. The two are not the same.
Next time you find yourself in a discussion of this nature, you now have more confidence to state how UNCLOS is correctly applied and declare that foreign vessels are not prohibited from transiting the Taiwan Strait and do not need to utilize transit or innocent passage to do so. Congratulations!
There is, unfortunately, a rather large postscript.
You may have read about Taiwan’s restricted and prohibited waters, in the context of Kinmen and Matsu. These are comparable to the contiguous zone and the territorial sea, respectively. Chi-Ting Tsai explained to me that actually the waters around Taiwan’s main island are also designated as restricted and prohibited. This really matters, because Taiwan defines restricted and prohibited waters in its 1992 Act Governing Relations between the People of the Taiwan Area and the Mainland Area. This law gave Taiwan’s Ministry of National Defense the power to designate these zones. The law also specifies that the restricted waters can only be entered by Chinese ships with prior permission.
This actually makes the restricted waters fundamentally different in character to the contiguous zone that they overlay, where there is no such “restriction.” Obviously, Taiwan is not a signatory of UNCLOS, which may be one reason why this designation receives little international challenge. China, at least around Taiwan’s main island, doesn’t send its naval vessels into the restricted waters/contiguous zone when holding drills, although the maps it releases show the drills taking place in those regions. It is the threat from China, of course, that led to Taiwan implementing this extra regime.
This still doesn’t impact the current situation of strait transits by other countries’ navies. Nor would it matter, we can note in passing, if the P.R.C. controlled Taiwan. The middle of the strait would still be an EEZ. And while the PRC protests the transit of other countries’ navies through their EEZ, Taiwan welcomes it. Nonetheless, it is more than a little ironic that an article about whether China is trying to make excessive maritime claims in the strait must end by acknowledging that Taiwan has to a limited extent already done so.
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