In fact, it appears to have been the latest US venture in its dispute with China over the legal regime governing such passages – and thus their conflicting views on 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 US “commitment to a free and open Indo-Pacific.” It said the plane passed the Taiwan Strait in “international airspace” and that “the United States will continue to fly, sail and operate wherever international law allows including in the Taiwan Strait”(Emphasis added).
The escape and the statement were apparently in response to China’s claim that it had jurisdiction over the strait. China responded to US action, expressing “firm opposition to US deliberate action 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 secure national sovereignty.”
What is beef?
USA maintains“The Taiwan Strait is an international waterway, which means that the Taiwan Strait is an area where freedom at sea, including freedom of navigation and overflight, is guaranteed under international law.”
Chinese Ministry of Foreign Affairs 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 basis of international order in the oceans, the UN Convention on the Law of the Sea, does not mention “international waters” or “international waterways.” Moreover, the United States is not a party to UNCLOS and therefore has little credibility or legitimacy in interpreting any of its provisions in its favor.
China is right about the Strait’s jurisdictional status. There is no such legal entity as international waters. This is a creation of the U.S. Navy to connote its commander waters, where they have “freedom of navigation.”
The actual legal regimes governing the strait are “territorial waters”, “cohesive zone” and “exclusive economic zone” (EEZ).
From its opposite coastal baselines located a maximum of 120 nautical miles apart, the Taiwan Strait consists of 12nm of territorial waters in and above which the coastal State has sovereigntyadditional 12nm contiguous zones where the coastal State has the right to prevent and punish violations of its customs, sanitary, tax and immigration regulations.
Because the strait is no more than 200nm wide, the rest is EEZ, in which the coastal state – China – has sovereign rights on the management of resources and the environment. There is no open sea in the strait.
The question for the United States is whether foreign warships and warships have the right to “freedom of navigation.” According to UNCLOS, normal passage of warships and warships through the Strait of Taiwan is legal. But as a non-party to UNCLOS, its rights are unclear. Nevertheless, the custom supports such a passage.
But according to UNCLOS, it depends on what the American warships and warships do during their passage. They have a duty to take “due account” of the rights and duties of the coastal State.
Let’s take the example of Poseidon P-8A. It is designed for anti-submarine warfare, anti-surface warfareand intelligence, surveillance and reconnaissance. It is armed with torpedo and Harpoon anti-ship missiles. It can fall and monitor sono buoysand works with other assets, including drones.
If it or a warship or warship carries out cyber or electronic warfare (EW), this can be seen as a threat or use of force – not permitted by the UN Charter, let alone UNCLOS.
In fact, the United States sees some cyber and EW attacks this way. It has agreed to a new clause in the ANZUS (Australia, New Zealand, USA) security treaty that gives “cyber attacks the same weight” as missile or bomb attacks or physical invasions. So if the cyber and EW activities of a warship or warship in the EEZ constitute an “attack”, then it is illegal.
Particularly relevant are active SIGINT activities (signal intelligence) carried out by aircraft and ships, some of which are deliberately provocative, for the purpose of generating programmed responses. Other SIGINT activities capture fleet radar and transmitters, enabling them to locate, identify and track (and thus plan electronic or missile attacks on) surface ships and submarines.
Still others may interfere with communications and computer systems, including those relating to drones. China considers that some such activities are not in line with UNCLOS ‘rules on respect and peaceful purposes.
Marine science research in an EEZ is subject to the prior consent of the coastal State. If the warship or warship installs information gathering units – including drones – they may be subject to this prior consent.
The United States can claim that it conducts military or hydrographic surveys and that it is not subject to the prior consent system. But UNCLOS provides that “dissemination and use of any kind of scientific research equipment” is subject to the consent scheme.
Simple fleet passage and even maneuvers are part of the freedom of navigation. However, China may argue that extended testing of weapons, such as the deployment of deep-sea explosions, the firing of torpedoes, live-fire drills or the disguised deployment of weapons within an EEZ, violates the duty to take “due account” of coastal rights and obligations of the state, in particular 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 unclear.
The Convention provides that in cases where it does not specifically confer coastal or other states within an EEZ rights or jurisdiction, any dispute between the States Parties shall be settled on the basis of fairness and in the light of all relevant circumstances, taking into account the interests involved. respective significance for the parties as well as for the international community as a whole.
So the question may be: What is fairer 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 question of sovereignty
Apart from the legal and military issues, the dispute touches on political issues. It actually raises the question of Taiwan’s status. If Taiwan is part of China, as the “one-China policy” prescribes, then the entire Strait is under China’s jurisdiction. The one-China policy recognizes the People’s Republic of China as the only legitimate government in China, but only recognizes and does not support China’s position that Taiwan is part of China.
If the United States, with its statements and actions, suggests that Taiwan is not part of China and has separate jurisdiction and regimes that control its alleged part of the Strait, then this challenges China’s sovereignty claim to Taiwan.
Although China cannot exercise jurisdiction over foreign warships and warships, that does not mean that the United States must deliberately provoke it with its actions. In fact, just because a country can do something does not necessarily mean it has to do it.
Consider the US response if China were to repeatedly carry out 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 would certainly consider this provocative, monitor them closely, even harass the assets carrying out 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 warships have the right to pass through it – provided they take “due account” of China’s rights and duties.
What will be the next American feature in this game with legal chicken? The next phase of this “dispute” may focus on conflicting interpretations of “due consideration”. Will the United States send warships or warships through the strait that, in China’s view, does not take “proper account”? If so, China, like the United States, can demonstrate its legal position with action.
Some parts of this piece appeared in South China Morning Post.