Taiwan Strait dispute: "International waters" is just a term concocted by the United States to maintain its maritime hegemony

【Text/Tian Shichen】

Chinese Foreign Ministry spokesman Wang Wenbin said at a regular news conference on June 13 that there is no such thing as "international waters" in international law and his refusal to characterize the Taiwan Strait as "international waters" has attracted the attention and protests of the United States and Taiwan authorities. The US State Department insists that the Taiwan Strait is "international waters" and that freedom of navigation on the high seas, including navigation and overflight, is guaranteed by international law in this water.

In addition to the diplomatic disputes, wang Wenbin was quoted in media reports as describing China's position as a claim to sovereignty over the entire Taiwan Strait. Compounding the problem is the ignorant advocacy of some social media accounts in Chinese mainland of the strait as an inland sea, a view that has not been recognized in any official Chinese policy.

Does the 1982 United Nations Convention on the Law of the Sea (UNCLOS) be recognized as the "Charter of the Seas" governing all ocean activities? If not, why does the United States insist on using the term not only in the Taiwan Strait, but also in waters beyond its territorial waters? How should the legal status of the Taiwan Strait be defined? These are issues that need to be resolved so that we can fully understand the different interpretations and applications of the law of the sea by the parties to the dispute.

Search through the full text of the United Nations Convention on the Law of the Sea and you'll find that there is no legal definition or relevant provision for "international waters," but the term is no stranger to the U.S. Navy or maritime lawyers. The U.S. Navy's U.S. Maritime Operations Act Commander's Manual, first published in 1900 and republished in March 2022 after several updates, clearly states that "for operational purposes, international waters include all marine areas that are not under the sovereign jurisdiction of any coastal State."

It is clear that "international waters" is more of a military term than a legal term. It is not surprising that it is neither a legal term nor any relevant provision in the United Nations Convention on the Law of the Sea. This fact also supports Wang Wenbin's statement that "'international waters' have no legal basis in the international law of the sea". This begs the question, why does the United States use this term instead of being consistent with the United Nations Convention on the Law of the Sea?

This is not just because the United States is not a party to the United Nations Convention on the Law of the Sea, the answer given by the U.S. Naval Commander's Manual: "All waters outside the territorial seas are international waters, in which the international community enjoys freedom of navigation and overflight on the high seas." International waters include, inter alia, contiguous zones, exclusive economic zones and the high seas". For operational purposes, the United States has reclassified the contiguous zone and the exclusive economic zone as an area equivalent to the high seas, claiming freedom of navigation and overflight without being bound by the legal obligations required by the zone. More critically, these freedoms include activities in the Eyes of the United States, from normal passages to military exercises.

In this way, the United States can freely conduct military activities without any legal obligations in the contiguous and exclusive economic zones of coastal states. Hence the term "international waters", and this hegemony depends to a large extent on the mobility of its warships on the world's oceans.

Another fallacy is that U.S. warships navigating the Taiwan Strait are implementing Freedom of Navigation Program Operations (FONOPs) to challenge China's "excessive maritime claims" in the Taiwan Strait. The U.S. Freedom of Navigation Program began under the Carter administration in 1979, and its annual report is freely available on the U.S. Department of Defense website. But combing through the documents, you won't find any specific record to support "China's excessive maritime claims in the Taiwan Strait."

Finally, what exactly is the legal status of the Taiwan Strait? Is it a strait that allows international navigation or an inland sea (as some social media users have mistakenly claimed)? Similarly, we return to the United Nations Convention on the Law of the Sea, which specifies the legal regime of straits used for international navigation.

According to the United Nations Convention on the Law of the Sea, there are two categories of "straits used for international navigation". The first category is straits that completely overlap with the territorial sea of one or more coastal States and are governed by transit passage regimes, as are the Straits of Hormuz, Malacca, Gibraltar, Bab el-Babel, etc. The second category is straits that do not fully overlap with the territorial waters of the littoral States, in which there is a channel for facilitating international navigation across the high seas or the exclusive economic zone, and these straits are also subject to the provisions of freedom of navigation and overflight on the high seas, such as the Taiwan Strait and the Miyako Strait.

However, the United Nations Convention on the Law of the Sea also provides that the exercise of such freedoms and rights is subject to relevant obligations, including applicable laws and regulations of coastal States under international law. In the case of the Taiwan Strait, for example, there is a passage through the exclusive economic zone, and the waters of the strait are divided into several areas, including internal waters, territorial waters and contiguous zones. In this case, the system of innocent passage applies in the territorial seas of the Taiwan Strait, while the freedom of navigation and overflight on the high seas applies by analogy in the exclusive economic zone corridors.

This is also why Wang Wenbin pointed out that "China enjoys sovereignty, sovereign rights and jurisdiction over the Taiwan Strait." In effect, he said that China enjoys sovereignty over China's internal waters and territorial waters on both sides of the Taiwan Strait, and sovereign rights and jurisdiction over parts of the exclusive economic zone. However, some media outlets have mistakenly or deliberately reported China's statement as China's claim to sovereignty over the entire Taiwan Strait.

Author: Tian Shichen, President of Jingshi Think Tank and Director of the Research Center of International Military Operations Law, Special Expert of China Forum;

Translator: Yi Wushuang, PhD candidate at King's College, Research Assistant at the Schmitage Think Tank.

【Original link: https://www.scmp.com/comment/opinion/world/article/3182228/taiwan-strait-dispute-international-waters-merely-us】

Taiwan Strait dispute: ‘international waters’ is merely a US concoction to maintain its maritime hegemony

By reclassifying all waters seaward of territorial seas as international waters, the US can claim all the high seas freedoms while avoiding any of the obligations due to coastal states

In this sense, the term serves as a panacea for Washington, allowing it to maintain the mobility of its warships in the world’s oceans

Chinese foreign ministry spokesman Wang Wenbin’s assertion that there is no such thing as “international waters” in international law and rejection of the Taiwan Strait as international waters have raised concerns and led to an outcry in both the United States and Taiwan.

The US State Department insists the Taiwan Strait is international waters where high seas freedoms, including of navigation and overflight, are guaranteed under international law. Taiwanese foreign ministry spokeswoman Joanne Ou also rejected Beijing’s claim, to stand firmly with the US.

Beyond the official disputes, there are media reports that cite Wang’s statement as describing China’s position as claiming sovereignty over the entire Taiwan Strait. Social media accounts in mainland China also ignorantly advocate treating the entire strait as an internal sea, which is not acknowledged in any official Chinese policy.

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is considered the “constitution of the oceans” governing all maritime activity. Does it have any regulations on “international waters”?

If not, why does the US persist in using this term, not only with regard to the Taiwan Strait but also in other areas beyond territorial seas? And, what is the legal status of the Taiwan Strait? These are questions that need to be addressed to understand the different interpretations and applications of the law of the sea between the disputing parties.

Search the full text of UNCLOS and you will find no provision for “international waters”. However, this term is not new to the US navy or marine lawyers.

The Commander’s Handbook on the Law of Naval Operations, published by the US Navy, states: “For operational purposes, international waters include all ocean areas not subject to the sovereignty of a coastal state.”

Clearly, “international waters” is an operational, rather than legal, term. Since it is not a legal term, it’s not surprising that there are no provisions for it in UNCLOS.

This supports Wang’s statement that: “There is no legal basis of ‘international waters’ in the international law of the sea.” And it invites the question of why the US started using the term instead of keeping in line with UNCLOS.

It is not simply because the US is not a party to UNCLOS. The answer lies in the same US Navy handbook, which asserts that: “All waters seaward of the territorial sea are international waters in which the high seas freedoms of navigation and overflight are preserved to the international community. International waters include contiguous zones, EEZs [exclusive economic zones] and high seas.”

By reclassifying contiguous zones and EEZs alike as equivalent to the high seas for operational purposes, the US claims freedom of navigation and overflight without being tied down by the obligations demanded.

The key point is that these freedoms, in the eyes of the US, include activities ranging from normal passage to military exercises.

So the US will carry out military activities in the contiguous zones and EEZs of coastal states without paying attention to its obligations. It is in this sense that the term “international waters” serves as a panacea for Washington, allowing it to maintain its maritime hegemony, which relies heavily on the mobility of its warships in the world’s oceans.

Another incorrect view is to regard the US sailing of its warships through the Taiwan Strait as carrying out freedom of navigation operations (FONOPs) to challenge “excessive maritime claims” by China.

The US freedom of navigation programme started in 1979 under the Carter administration and its annual reports are freely available on the US defence department’s website. Comb through these and you will find no specific record of challenging excessive Chinese maritime claims in the Taiwan Strait.

Finally, what exactly is the legal status of the Taiwan Strait? Is it a strait used for international navigation or an internal sea (as wrongly advocated by some social media users)? Again, we have to come back to UNCLOS, where the legal regime of straits used for international navigation is specifically regulated.

Accordingly, there are two types of strait used for international navigation between one part of the high seas or an EEZ and another part of the high seas or an EEZ.

The first type are straits that are completely overlapped by the territorial seas of a coastal state or states and which are subject to the legal regime of transit passage. The Strait of Malacca is one example of this.

The second type are straits not completely overlapped by territorial seas, with a route through the high seas or an EEZ suitable for international navigation, and which are subject to high seas freedom of navigation and overflight. The Taiwan Strait and Miyako Strait are two examples.

Still, UNCLOS stipulates that the exercise of such freedom and rights is subject to obligations, including under the applicable laws and regulations of the coastal states. Take the Taiwan Strait, for example. There is an EEZ corridor through it, and the waters are divided into several zones including internal waters, territorial sea and contiguous zones.

The principle of innocent passage applies to the designated territorial sea in the Taiwan Strait, while the high seas freedoms, of navigation and overflight, apply to the EEZ. That is why Wang said that, “China has sovereignty, sovereign rights and jurisdiction over the Taiwan Strait.”

He meant that China has sovereignty over the internal waters and territorial seas in the strait, and sovereign rights and jurisdiction over the EEZ part. However, some media mistakenly or deliberately cited his statement as saying that China claims sovereignty over the entire Taiwan Strait.

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