On June 13, China’s foreign affairs spokesman Wang Wenbin was asked about a Bloomberg News report that added to tensions with the United States over the island of Taiwan.
The story a day earlier said, “Chinese military officials in recent months have repeatedly asserted that the Taiwan Strait isn’t international waters during meetings with U.S. counterparts, according to a person familiar with the situation.”
The strait is a strip of ocean between mainland China and the island republic that China claims as its own. It matters because the United States routinely sails warships through the channel, which narrows to 100 miles, to reinforce that the waterway is open to navigation under maritime law.
In regard to the Bloomberg report, Wang first reiterated China’s orthodox territorial claims over Taiwan, the island, then claimed there’s no legal basis for the U.S. position on the strait.
“It is a false claim when certain countries call the Taiwan Strait ‘international waters’ in order to find a pretext for manipulating issues related to Taiwan and threatening China’s sovereignty and security,” he said.
Wang is wrong. International law backs up the right of foreign ships to pass through the strait. And China over the years has sent mixed signals on the matter. Recently, however, China has been more aggressive toward Taiwan, even repeatedly flying warplanes toward the island.
In 2017, Liu Zhenmin, then China’s vice foreign minister, justified the passage of a Chinese Navy ship through the strait as a matter of normal affairs, saying: “[T]he Taiwan Strait is an international waterway shared by the mainland and Taiwan.”
The comment came after the CNS Liaoning, China’s first aircraft carrier, steamed through the strait, a move that prompted Taiwan to “scramble jets and navy ships to closely follow the battle group and monitor the situation,” the state-owned China Daily newspaper reported.
Two years later, when a French warship navigated the strait, China initially accused France of “illegally entering Chinese waters.” That language was later removed from the official transcript, according to Bonnie Glaser, then director of China Power Project at the Washington, D.C., think tank Center for Strategic and International Studies (CSIS).
“Beijing has expressed irritation previously when the U.S. sent warships through the Taiwan Strait, a key international waterway, but has not described such passages as illegal,” The Financial Times reported at the time.
Now, observers say that Beijing’s dismissal of the term “international waters,” and its claim of “sovereignty, sovereign rights and jurisdiction,” signals a change in policy.
“Beijing seems to be making explicit what was only implicit in recent years: that it doesn't believe there is a right to normal transit through the strait,” Greg Poling, director of CSIS’ Asia Maritime Transparency Initiative, said on Twitter.
At his news conference, Wang cited the United Nations Convention on the Law of the Sea (UNCLOS) to assert that the strait is divided into different zones, “including internal waters, territorial sea, contiguous zone, and the Exclusive Economic Zone.”
But that’s not all UNCLOS, known as the law of the sea, has to say; it also backs U.S. and Taiwanese claims that the strait is open.
The convention, a treaty that dates to 1982 and took force in 1994, grants every coastal state “the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles,” measured from the state’s coastal low-water mark. States may also claim an “exclusive economic zone” (EEZ) stretching another 200 nautical miles.
However, Article 17 of the law states that even within a nation’s territorial sea, “ships of all States, whether coastal or land-locked, enjoy the right of innocent passage.”
According to Article 56 of the law, within EEZs states have “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources.”
But Article 58 lays out “rights and duties of other States” within the EEZs. It says that all nations enjoy the freedoms of the high seas, including “navigation and overflight.”
The Taiwan Strait is about 220 nautical miles at its widest, so much of the strait falls within the EEZ of China and Taiwan. Although UNCLOS does not use the term “international waters,” it is customary shorthand for waters that lie beyond the territorial sea of any state.
Experts say China is all wet.
“This seems to be about restrictions on foreign activity through the EEZ, [w]hich is, of course, also illegal,” Greg Poling, director of the Asia Maritime Transparency Initiative at CSIS, said on Twitter. “[International] law provides no right for China to restrict foreign transit or military activities in it.”
“China enjoys limited economic-related sovereign rights & jurisdiction in the portion of the Taiwan Strait that is its EEZ,” added Jonathan Odom, Military Professor of International Law at the Marshall Center for Security Studies.
“China may not restrict foreign military activities and transits in those waters or in the airspace above them.”