The previous chapter debated discriminatory navigational restrictions in the Strait of Hormuz which is characterised by a long rivalry between great maritime powers. Such geopolitical tensions are also commonplace in the Taiwan Strait which is crossed by heavy ship traffic. This includes most of the oil tankers that embark on their voyage from the Persian Gulf via the Strait of Hormuz to the Asian markets. Breaches of the applicable navigational regime and coastal State’s restrictions to the passage of foreign ships in the Taiwan Strait are discussed next.
9.1 Legal and Geographical Characteristics of the Taiwan Strait
The Taiwan Strait connects the South China Sea with the East China Sea and the ports located in China’s southern coast (e.g., Hong Kong) with ports in China’s eastern coast (e.g., Shanghai). Thus, much of international navigation heading to or from Central and Northern China, Japan, South Korea, North Korea, and Eastern Russia crosses the Taiwan Strait. Reportedly, on average, 483 ships of over 300 gt passed through the Taiwan Strait each day in 2015–2017.1
The number of ships of over 300 gt crossing the Taiwan Strait daily is more than double that of the Strait of Malacca (in 2017, respectively close to 500 in the Taiwan Strait and 230 in the Strait of Malacca) and approximately ten times more than that of the Suez Canal (see Figure 2).2 In total numbers, more than 1000 ships cross the Taiwan Strait each day; this includes the busy ferry traffic between Taiwan and mainland China (over 2 million passengers cross the strait annually).3
Traffic density in the straits of Taiwan and Malacca, the Suez Canal, and the Baltic Straits in 2017
Note: The number for the Taiwan Strait is an educated guess based on the fact that according to the Chinese data, on average, 483 ships of over 300 gt passed through the Taiwan Strait each day in 2015–2017, and in total numbers, more than 1000 ships cross the Taiwan Strait each day. Chai, Xue, op. cit., 2. 台湾海峡首艘千吨级海事巡航救助船开工建造, op. cit. Calculations in respect of the Malacca Strait and the Suez Canal are based on the following sources:
suez canal traffic statistics: annual report 2017, op. cit., 2. the data in relation to the baltic straits is collected from the helcom map and data service, available
The approximately 170-nm-long Taiwan Strait is located between mainland China and Taiwan Island. At its narrowest, the Taiwan Strait is approximately 72 nm wide in its southern part (between Taiwanese Bird Island and
The Luzon Strait is in respect of the Taiwan Strait an alternative sea route for ships heading to or from East China Sea or the Philippine Sea. The Luzon Strait is located between Taiwan and the Philippines and is at its narrowest point approximately 100 km (or 54 nm) wide. Hence, it includes an approximately 30-nm-wide eez in and over which ships and aircraft are entitled to the freedom of navigation and overflight. Consequently, Article 35(b) of losc also applies to the Luzon Strait.
9.2 Navigation in the Taiwan Strait in the Light of Recent Developments in China’s Legislation
Against the backdrop of increased military tensions between China and Taiwan, the United States and the United Kingdom have increased their naval presence in and near the Taiwan Strait.6 The United States has frequently conducted Freedom of Navigation operations in the Taiwan Strait. In addition, warships of many other States have recently transited that waterway. For example, the United Kingdom’s and Canada’s warships transited the Taiwan Strait in autumn 2021.7 Such transits by foreign warships are usually considered by China as constituting a threat to regional peace and security.
Presumably partly as a reaction to the above-listed recent transits by the warships of the United States, UK, and Canada, China and Russia conducted a joint naval exercise in November 2021, in the course of which their flotilla of ten warships transited the Japanese Straits of Tsugaru and Osumi Strait that border Japan’s main island.8 Both the Tsugaru Strait and Osumi Strait fall under the
Foreign ships are entitled under international law to the normal navigation regimes of innocent passage and freedom of navigation when navigating through the territorial sea or eez in the Taiwan Strait. However, China has imposed under its domestic legal acts certain limitations to the passage of foreign warships through its maritime area. Article 6(2) of China’s Law on the Territorial Sea and the Contiguous Zone stipulates that for entering China’s territorial sea, foreign warships are required to obtain a permission from China’s Government.11 China’s permit-based right of innocent passage in respect of foreign warships is not compatible with Article 17 of losc.12 On the opposite coast of the Taiwan Strait, Taiwan restricts the right of innocent passage by requiring foreign warships to submit a prior notification when navigating through its territorial sea.13
By revising its Maritime Traffic Safety Law in 2021, China has now also enacted a prior notification requirement in respect of the following types of foreign ships entering or leaving China’s territorial sea: submersibles; nuclear-powered ships; ships carrying radioactive materials or other toxic and hazardous materials; other vessels that may endanger China’s maritime traffic safety.14 The imposition of the prior notification requirement in respect of a broad range of foreign ships is complemented with other navigational restrictions
Article 30 of China’s revised Maritime Traffic Safety Law enables to establish compulsory pilotage in respect of foreign ships also in maritime areas that fall outside the limits of China’s sovereign territory, but are subject to its jurisdiction, e.g., China’s eez wherein compulsory pilotage would be incompatible with the freedom of navigation.17 The same controversy characterises Article 44 that, in combination with Article 2 of the revised Maritime Traffic Safety Law, potentially allows for the suspension of the passage of foreign ships also in maritime areas outside China’s territorial sea.
In addition, China limits the use of high seas freedoms in its eez by subjecting military surveying to the requirement of a prior permission. China’s imposition of this requirement is due to its considerations of national security interests. China considers that military surveying falls under the scope of marine scientific research and thus requires the coastal State’s prior permission.18 The legal regime of marine scientific research and its relation to seabed surveying in an eez by foreign vessels is examined below in the example of an Estonian-Russian 2005 incident in the Viro Strait.19
In January 2021, China adopted its new Coast Guard Law, which was discussed in greater detail above (see Chapter 5.3 of Part 2). Similar to the above-discussed China’s Maritime Traffic Safety Law, Article 3 of the 2021 Coast Guard Law mandates the Chinese Coast Guard to operate in the waters under China’s jurisdiction, while leaving its spatial extent undefined. Thus, Liu, Xu, and Chang maintain that ‘the determination of China’s jurisdictional waters should be based on China’s 1998 Exclusive Economic Zone and Continental Shelf Act and 1992 Territorial Sea and Contiguous Zone Act, which specifically
9.3 Geopolitical Tensions in the Taiwan Strait and Intrusions of Taiwan’s Air Defence Identification Zone
China and most other States, including the United States, do not recognise Taiwan as an independent State. Under the “one China” policy, Beijing strives to establish control over the self-ruling Taiwan. At the same time, the United States has committed itself to defend Taiwan against a Chinese invasion.23
In addition to Taiwan Island, Taipei governs some distant groups of islands/rocks (Mazu Islands and Kinmen Islands), some of which are located at a sight distance from mainland China (e.g., Gaodeng Island is located 9 km from mainland China and Kinmen Islands are situated a couple of km east of China’s Xiamen city).24 Taiwan also controls Taiping Dao (a.k.a. Itu Aba) that is the largest feature among the Spratly Islands located in the middle of the South China Sea and that both China and Taiwan consider as an island under Article 121(1) of losc.25 In the South China Sea arbitration, the Annex vii Arbitral Tribunal did not agree with this position and decided that Taiping Dao (Itu Aba) nor any other feature in the Spratly Islands, including Zhongzhou Reef that is also controlled by Taiwan, is capable of sustaining an economic life of its own.26 Thus, the features in the Spratly Islands constitute rocks that do
The Taiwan Strait and the South China Sea.
source: wikimedia commons, ‘south china sea claims and boundary agreements 2012’.
An adiz is defined as a “[s]pecial designated airspace of defined dimensions within which aircraft are required to comply with special identification and/or reporting procedures additional to those related to the provision of air traffic services”.31 It is used for facilitating the use of measures against the violations of sovereign airspace.32 Numerous States have established adizs without much controversy, even though they lack a clear legal framework under international law.33 Legally speaking, the identification and reporting requirements in an adiz outside the sovereign airspace of the relevant State are not mandatory. Hence, the operations of Chinese military aircraft in Taiwan’s adiz might be considered as provocative, but they are not violating international law as long as they do not amount to a breach of sovereign airspace and a threat or use of force under Article 2(4) of the UN Charter.
Often an adiz does not overlap with the outer limits of the relevant State’s own airspace. For example, Taiwan’s adiz was created in the 1950s with the assistance of the United States military and covers not only the airspace above Taiwan Island, but extends north-westward to cover the Taiwan Strait and also significant parts of foreign airspace above mainland China mostly in Fujian province near Taiwan-controlled Mazu Islands and Kinmen Islands.34 There
The voluntary identification and reporting requirements within an adiz provide additional safeguards against such intrusions of civil or military aircraft into the coastal State’s airspace that might jeopardise its national security. Foreign military aircraft rarely comply with the voluntary identification and reporting requirements when crossing an adiz.36 By contrast, civil aircraft normally comply with the voluntary identification and reporting requirements that apply when crossing an adiz.37
T Chai, H Xue, ‘A study on ship collision conflict prediction in the Taiwan Strait using the EMD-based LSSVM method’ (2021) 16(5) PLoS one, 2.
See the respective figures for the Strait of Singapore in M Hand, ‘Malacca Straits VLCC traffic doubles in a decade as shipping traffic hits all time high in 2017’, SeaTrade Maritime News (19 February 2018). For the Suez Canal, see Suez Canal Traffic Statistics: Annual Report 2017, Suez Canal Authority 2018, 2. See also Anonymous, ’Egypt’s Suez Canal blocked by huge container ship’, bbc News (24 March 2021).
台湾海峡首艘千吨级海事巡航救助船开工建造 (‘Construction of the first 1,000-ton maritime cruise rescue ship in the Taiwan Strait starts’), Xinhua (24 May 2019).
See Exclusive Economic Zone and Continental Shelf Act, adopted 26 June 1998, entered into force 26 June 1998; Order by the Chairman of the People’s Republic of China No. 6 (on the same act) of 26 June 1998. Both accessible at China, ‘Legislation’, Division for Ocean Affairs and the Law of the Sea, available
The same conclusion is reached in K Zou, ‘Redefining the Legal Status of the Taiwan Strait’ (2000) 15(2) The International Journal of Marine and Coastal Law, 252. See also Kraska and Pedrozo, op. cit., 224–225.
M Martina, I Ali, ‘U.S. warship transits Taiwan Strait after Chinese assault drills’, Reuters (28 August 2021). F Gardner, ‘China warns UK as carrier strike group approaches’, bbc News (30 July 2021). L Xuanzun, ‘US warships’ Taiwan Straits transit, S.China Sea drill futile to contain China: observers’, Global Times (29 July 2021).
R Woo, B Blanchard, I Ali, ‘China condemns U.S., Canada for sending warships through Taiwan Strait’, Reuters (17 October 2021).
B Lendon, ‘Why Russian and Chinese warships teaming up to circle Japan is a big deal’, cnn News (25 October 2021).
Enforcement Order of the Law on the Territorial Sea and the Contiguous Zone (Cabinet Order No. 210 of 1977, as amended by Cabinet Order No. 383 of 1993, and Cabinet Order No. 206 of 1996), Annexed Schedule 2 (with reference to articles 3 and 4). RW Smith et al., Limits in the Seas, No. 120. Straight Baseline and Territorial Sea Claims: Japan (US Department of State, Washington D.C., 1998), 13–15. Kraska and Pedrozo, op. cit., 227.
See supra Chapter 2.1 of Part 1.
Law on the Territorial Sea and the Contiguous Zone, adopted 25 February 1992, entered into force 25 February 1992.
See further, e.g., Zou 2000, op. cit., 254.
Law on the Territorial Sea and the Contiguous Zone of the Republic of China, adopted 21 January 1998, entered into force 21 January 1998, Art 7(5).
Maritime Traffic Safety Law of the People’s Republic of China, adopted 2 September 1983 (revised 29 April 2021, entered into force 1 September 2021), Art 54.
Ibid., Art 2.
R Pedrozo, ‘China’s Revised Maritime Traffic Safety Law’ (2021) 97 International Law Studies, 957.
Ibid., 960.
See Pedrozo 2009, op. cit., 101–110. See also C Rahman, M Tsamenyi, ‘A Strategic Perspective on Security and Naval Issues in the South China Sea’, in NA Hu, TL McDorman (eds), Maritime Issues in the South China Sea: Troubled Waters or A Sea of Opportunity (Routledge, New York, 2013), 47–48. See also Article 9 of China’s Exclusive Economic Zone and Continental Shelf Act.
See infra Chapter 12 of Part 4.
C-H Liu, Z Xu, Y-C Chang, ‘Coast Guard Law of the People’s Republic of China and Its Implications in International Law’ (2021) 36(3) The International Journal of Marine and Coastal Law, 494.
S Sakamoto, ‘China’s New Coast Guard Law and Implications for Maritime Security in the East and South China Seas’, Lawfare (16 February 2021).
American Institute in Taiwan, ‘U.S.-Taiwan Coast Guard Working Group Advances Joint Maritime Cooperation Goals’, Press Release, 11 August 2021.
K Liptak, ’Biden vows to protect Taiwan in event of Chinese attack’, cnn News (22 October 2021).
Navionics ChartViewer, op. cit.
Ibid. South China Sea Arbitration, Award of 12 July 2016, op. cit., paras. 467–468. For its geographical characteristics, see Ibid., para 401. See the map of the island, in Ibid., p. 125.
South China Sea arbitral award, op. cit., paras. 626, 632.
Navionics ChartViewer, op. cit.
MJ Mazarr, N Beauchamp-Mustafaga, TR Heath, D Eaton, ‘What Deters and Why? The State of Deterrence in Korea and the Taiwan Strait’, rand, 2021, 47.
B Blanchard, ‘Taiwan reports largest incursion yet by Chinese air force’, Reuters (15 June 2021). Anonymous, ‘Taiwan says 19 Chinese warplanes entered air defence zone’, bbc News (6 September 2021). S McDonell, ‘China-Taiwan military tensions ‘worst in 40 years’’, bbc News (6 October 2021). C Buckley, SL Myers, ‘‘Starting a Fire’: U.S. and China Enter Dangerous Territory Over Taiwan’, The New York Times (9 October 2021).
Y Lee, D Lague, B Blanchard, ‘China launches ‘gray-zone’ warfare to subdue Taiwan’, Reuters (10 December 2020). YL Tian, Y Lee, ‘China holds assault drills near Taiwan after ‘provocations’, Reuters (17 August 2021).
Annex 15 to the Convention on International Civil Aviation (16th ed.), International Civil Aviation Organization, Montréal 2018, Chapter 1, 1–2.
Ishii, op. cit., 169.
J Su, ‘The Practice of States on Air Defense Identification Zones: Geographical Scope, Object of Identification, and Identification Measures’ (2020) 18(4) Chinese Journal of International Law, 812–813. On the various adizs, see Ibid., 814–825.
Ibid., 816.
Ishii, op. cit., 169–170.
Su, op. cit., 826–827.
Ibid., 830–832.