MARK VALENCIA
Last Friday, a US Navy Poseidon P-8A intelligence, surveillance and reconnaissance aircraft flew through the Taiwan Strait. This seemingly routine event was anything but.
Indeed, it appears to have been the latest US gambit in its dispute with China over the legal regime governing such passages – and thus their conflicting views of the relevant “international order.”
In an unusual “in your face” statement, the US Indo-Pacific Command proclaimed that the flight was a demonstration of the United States’ “commitment to a free and open Indo-Pacific.” It said the plane transited the Taiwan Strait in “international airspace” and that “the United States will continue to fly, sail and operate anywhere international law allows including within the Taiwan Strait” (emphasis added).
The flight and statement were apparently in response to China’s assertion that it had jurisdiction over the Strait. China responded to the US action expressing “firm opposition to the US’s deliberate act to disrupt the regional situation and undermine peace and security across the Strait.” It added that its military was on “high alert at all times to resolutely safeguard national sovereignty.”
What’s the beef?
The US maintains, “The Taiwan Strait is an international waterway, meaning that the Taiwan Strait is an area where high-seas freedoms, including freedom of navigation and overflight, are guaranteed under international law.”
China’s Foreign Ministry said China “has sovereignty, sovereign rights and jurisdiction over the Taiwan Strait” and says it is “a false claim when certain countries call the Taiwan Strait ‘international waters.'”
So who is right?
The foundation of the international order in the oceans, the UN Convention on the Law of the Sea, does not mention “international waters” or “international waterways.” Moreover the US is not a party to UNCLOS and thus has little credibility or legitimacy in interpreting any of its provisions to its advantage.
China is correct in terms of the jurisdictional status of the Strait. There is no such legal entity as international waters. This is a creation of the US Navy to connote to its commanders waters in which they have “freedom of navigation.”
The actual legal regimes governing the Strait are “territorial sea,” “contiguous zone” and “exclusive economic zone” (EEZ).
From its opposite coastal baselines situated a maximum of 120 nautical miles from each other, the Taiwan Strait is composed of 12nm territorial seas in and over which the coastal state has sovereignty, a further 12nm of contiguous zones in which the coastal state has the right to prevent and punish infringements of its customs, sanitary, fiscal, and immigration regulations.
Because the Strait is not more than 200nm wide, the rest is EEZ in which the coastal state –China – has sovereign rights regarding management of the resources and the environment. There are no high seas in the Strait.
The issue for the US is whether or not foreign warships and warplanes have the right of “freedom of navigation.” According to UNCLOS, normal passage of warships and warplanes through the Taiwan Strait is legal. However, as a non-party to UNCLOS, its rights are unclear. Nevertheless, customary law supports such passage.
However, according to UNCLOS it depends on what the US warships and warplanes are doing during their passage. They have the obligation to pay “due regard” to the rights and duties of the coastal state.
Let’s take the example of the Poseidon P-8A. It is designed for anti-submarine warfare, anti-surface warfare, and intelligence, surveillance and reconnaissance. It is armed with torpedoes and Harpoon anti-ship missiles. It can drop and monitor sonobuoys, and operate in conjunction with other assets, including drones.
If it or a warship or warplane is 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 US views some cyber and EW attacks this way. It has agreed to a new clause in the ANZUS (Australia, New Zealand, United States) Security Treaty that gives “cyberattacks the same weight” as missile or bomb attacks or physical invasions. So if the cyber and EW activities of a warplane or warship in the EEZ constitute an “attack,” then that is illegal.
Particularly relevant are active SIGINT (signals intelligence) activities conducted from aircraft and ships, some of which are deliberately provocative, intending to generate programmed responses. Other SIGINT activities intercept naval radar and emitters, enabling them to locate, identify and track (and thus plan electronic or missile attacks against) surface ships and submarines.
Still others may interfere with communication and computer systems, including those regarding drones. China thinks that some such activities are not consonant with the due regard and peaceful purposes provisions of UNCLOS.
Marine scientific research in an EEZ is subject to the prior consent of the coastal state. If the warship or warplane is deploying information collection devices – including drones – they may be subject to this prior-consent regime.
The US may argue that it is undertaking military or hydrographic surveys and they are not subject to the prior-consent regime. But UNCLOS provides that “the deployment and use of any type of scientific research equipment” shall be subject to the consent regime.
Simple naval passage and even maneuvers are part of the freedom of navigation. 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 maneuvers and missile exercises that temporarily prevent other states from using part of their EEZ remains unresolved.
The Convention provides that in cases where it does not specifically attribute rights or jurisdiction to the coastal or other states within an EEZ, any dispute between states parties should be resolved on the basis of equity, and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.
So the question may become: Which is more equitable or more valuable to the international community, the right to spy, “prepare the battlefield” and intimidate (gunboat diplomacy), or the right to ban such activities in one’s EEZ?
The sovereignty question
Aside from the legal and military issues, the dispute impinges on political issues. Indeed, it raises the issue of the status of Taiwan. If Taiwan is part of China as the “one-China policy” stipulates, then the entire Strait is under China’s jurisdiction. The one-China policy recognizes the People’s Republic of China as the sole legal government of China, but only acknowledges, and does not endorse, the PRC position that Taiwan is part of China.
If the US is implying by its statements and actions that Taiwan is not part of China and has separate jurisdiction and regimes governing its claimed portion of the Strait, then this challenges China’s sovereignty claim to Taiwan.
Although China cannot exercise jurisdiction over foreign warships and warplanes, that does not mean the US should purposely provoke it with its actions. Indeed, just because a country can do something, it does not necessarily mean it should do it.
Consider the US reaction if China were repeatedly to undertake such activities in the US EEZ off its west or east coast or in the Gulf of Mexico. While it may not legally object, it surely would consider this provocative, monitor them closely, even harass the assets undertaking the activities and plan “countermeasures” in the event of an attack.
In short, China is right that the Taiwan Strait is not “international waters.” But foreign warships and warplanes have the right to pass through it – provided they pay “due regard” to China’s rights and duties.
What will be the next US move in this game of legal chicken? The next phase of this “dispute” may focus on conflicting interpretations of “due regard.” Will the US send warships or warplanes through the Strait that in China’s view do not pay “due regard”? If so, like the US, China may demonstrate its legal position with action.
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