Redefining the legal status of the Taiwan Strait

8    Redefining the legal status of the Taiwan Strait

Geography of the Taiwan Strait

It seems that the Taiwan Strait crisis which resulted from the missile tests launched in 1996 by mainland China in order to intimidate Taiwan is not over. The proclamation of “special state to state relations” made by Lee Teng-hui, then President of Taiwan, in July 1999 exacerbated cross-Strait relations and blocked the continuation of dialogues between the two sides. On the other hand, as described in Chapter 2, in 1998 – the UN Year of the Ocean – Taiwan promulgated its laws on the territorial sea and on the exclusive economic zone (EEZ)/continental shelf in January, while mainland China enacted its Law on the EEZ/continental shelf in June in addition to its 1992 Law on the Territorial Sea and the Contiguous Zone. Thus the basic marine legal regimes both in the mainland and in Taiwan have been formulated in accordance with the United Nations Convention on the Law of the Sea (the LOS Convention). Under such circumstances, it is necessary to redefine the legal status of the Taiwan Strait. Research on this is meaningful for at least two reasons: one relates to the tricky issue of the legal status of the Taiwan Strait itself; the other relates to the newly formulated ocean legal order based upon the LOS Convention. What is more significant is the fact that China is now a divided nation and the Taiwan Strait has become and will remain a military and strategic arena for China’s future.

The Taiwan Strait is located between China’s Fujian (Fukien) Province and Taiwan Province and constitutes a critical corridor connecting the East China Sea to the South China Sea. Actually the Strait itself is regarded as part of the East China Sea.¹ The breadth of the northern end is about 93nm and that of the southernmost end 116nm. It is more than 170nm long and about 60m in average depth.² The Strait is within the continental shallow sea and three-quarters of its water is less than 60m in depth.

The Taiwan Strait is one of the more important fishing grounds in China, and there are about 700 fish species, among which 100 species are economic. The coastal areas of the Taiwan Strait contain rich sand deposits. Recently, oil and gas has been discovered around the Taiwan Strait. For example, petroleum has been discovered in the seabed area off the western coast of Taiwan.3 In addition, the Taiwan Strait is traditionally used as an important navigational waterway both for China and for the rest of the world. For China, it is a critical sea route from north to south between the East China Sea and the South China Sea, and also between Taiwan and Fujian.⁴

Many islands and reefs are scattered in the Strait. Along the mainland coast the significant islands include the Jinmen (Kinmen or Quemoy) and Mazu (Matsu) Islands which are under the jurisdiction of the Taiwan authorities. The 12 Jinmen islands are located off the southern coast of Fujian Province, covering an area of 150.45sq km. They lie at approximately 118°24′E longitude and 24°27′N latitude, a key position in the Taiwan Strait that blocks the mouth of the Xiamen (Amoy) Bay and protects Taiwan and Penghu (Pescadores). The Jinmen Islands are 82nm west of the Penghu Islands and 150nm from Kaohsiung in southern Taiwan. The shortest distance from the main island, Jinmen, to the territory of mainland China is only 2,310m.⁵ Situated outside the mouth of the Min River, the Mazu Islands form the northern anchor of the offshore defense line commanding the Min River. The main island of the complex is Nankan, more commonly known as Mazu, from the name of the major port of the island. It is 114nm northwest of Keelung, the port city on the northern tip of Taiwan, and is the same distance north of the Jinmen Islands. Other major islands of the group are Peikan, Kaoteng, Tungyin, Hsiyin, Tungchu, and Hsichu. Nankan is the largest, with an area of 10.4sq km. Kaoteng is located only 5.5nm (9,250m) from the Chinese mainland.⁶

Along the Taiwan side, the biggest islands are the Penghu Islands, lying between 119°18′03″ and 119°42′54″E, and consisting of 64 islets situated in the Taiwan Strait. The total area of the islands is 126.86sq km. Penghu, the largest island of the archipelago, accounts for half of the total area, and is home to 70 percent of the population.⁷ In the past, they were a key stopping place for ships sailing throughout the Far East and crossing the Pacific.

In the developments of marine law, the Taiwan Strait is a key concern both for the mainland and Taiwan, in particular after the entry into force of the LOS Convention. Mainland China ratified the Convention in 1996.⁸ Although Taiwan is not a party to the LOS Convention because of its peculiar status in the world community, it declared that it would follow the new legal rules embodied in the LOS Convention to exercise maritime jurisdiction and manage maritime affairs, which can be illustrated by its laws on the territorial sea and on the EEZ promulgated in 1998.

Historical and political implications

Historically the Taiwan Strait has been a battlefield. For example, in 1661, Zheng Chenggong (Koxinga) led his army across the Strait to recover the Taiwan Islands from the Dutch colonists.9 In 1949, the Nationalist Government retreated to Taiwan from this strait. In Chinese history 1949 was critical because, from this year on, China was divided with two governments: the Nationalist Government in Taiwan continued to use the name of the Republic of China (ROC)¹⁰ while the Communist Government in the mainland established the People’s Republic of China (PRC). As a result, there are two de facto jurisdictions existing within the Strait. The divided status of China has also made the situation in the Taiwan Strait complex and uncertain.

In terms of administrative zoning, there are two coastal provinces adjacent to the Taiwan Strait: Fujian Province and Taiwan Province. Taiwan Province is under the control of the ROC while the Fujian Province is part of the PRC except for some coastal islands. The ROC Government administers only two counties in Fukien Province: Kinmen County, which encompasses Kinmen, and Lienchiang County, which encompasses Matsu. In July 1956, the ROC military assumed full administrative responsibility for these two counties. Military administration lasted until 7 August 1992, when Lee Teng-hui promulgated the Statute for the Security and Guidance of Kinmen, Matsu, and the Pratas and Spratly Areas. The return of local autonomy to Kinmen County and Lienchiang County is part of the ROC’s recent constitutional reforms. The residents of these counties now have the same rights and freedoms as all people in Taiwan. However, the Self-Governance Law for Provinces and Counties, passed in July 1994, does not apply to the Fujian Provincial Government because of the small area under its jurisdiction.¹¹ Since these islands are close to the mainland coast, their administration is a difficult task for the ROC. On the other hand, such contiguity produces strategic significance for the defense of Taiwan and Penghu.

During the 1950s, the situation in the Taiwan Strait was rather intense. The communist regime in the mainland pledged to “liberate” Taiwan. In order to deter the expansion of communism from mainland China to Taiwan and Southeast Asia, the United States was determined to protect Taiwan from being occupied by the PRC. It sent the 7th Fleet to the Taiwan Strait to “neutralize” the Strait.¹² Further, the United States concluded a mutual defense treaty with the Nationalist Government in Taiwan.¹³ Accordingly, the United States promised to protect Taiwan; in return, the Nationalist Government should not launch a military attack against the mainland without the consent of the United States. Since then a state of peace based on military confrontation has existed in the Taiwan Strait.

In 1987, Taiwan abolished its marshal law and permitted its people to visit the mainland. Four years later, the Period of National Mobilization for Suppression of the Communist Rebellion was terminated. Taiwan adopted in 1993 the Guidelines of National Reunification, seeking the reunification of China by peaceful means and based upon democracy and freedom. For that purpose, Taiwan has no longer regarded itself as the sole representation of the whole of China and has recognized the division of China and the existence of the Communist Government in the mainland as an unfriendly regime.14 Meanwhile mainland China exerted its endeavors to unify the country also by peaceful means and based upon the principle of “one country, two systems”. However, the mainland has not given up use of force to reach the goal of unification in certain extreme cases. For example, if Taiwan should declare independence, mainland China may use force to reunify the country. As the White Paper on China’s National Defense states, “[t]he Chinese government seeks to achieve the reunification of the country by peaceful means, but will not commit itself not to resort to force”.¹⁵ Thus there is no doubt that the political situation across the Taiwan Strait has a direct impact upon the Strait itself as well as the activities therein.

From the above background, we can see that the study of the Taiwan Strait has to focus on the two main lines: one is based upon the law of the sea; and the other is on cross-Strait relations. Useful research must therefore reflect these two main threads.

Legal status before and after UNCLOS III

The Taiwan Strait is generally classified as an international strait in international law, which is defined as

a contraction of the sea between two territories, being of a certain limited width and connecting two seas otherwise separating at least in that particular place the territories in question.¹⁶

It seems that, before the LOS Convention, such definition applied to all international straits, though we have to admit that the definition was rather general and inaccurate. However, after the adoption of the LOS Convention in 1982, the definition of international straits becomes narrower and divided: narrower because, under the LOS Convention, the definition of straits used for international navigation only refers to those straits within the territorial seas of the coastal states; divided because, after the LOS Convention, it seems that there are two definitions for international straits: one is the strait used for international navigation, and the other is the remaining kind of strait.

The LOS Convention defines the “strait used for international navigation” as a strait connecting one part of the high seas or an EEZ with another part of the high seas or an EEZ (Art. 37). There are two criteria: one geographical and one functional. The geographical criterion is that the strait connects one part of the high seas or an EEZ with another part of the high seas or an EEZ; and the functional one is that the strait is used for international navigation.¹⁷ In addition, such straits must be within the ter ritorial seas of the coastal states. Foreign ships and aircraft can enjoy the right of transit passage through these straits. Transit passage means the exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an EEZ and another part of the high seas and an EEZ (Art. 38). However, if a strait used for international navigation is a strait between a part of the high seas or an EEZ and the territorial sea of a coastal state, the regime of innocent passage provided in the LOS Convention should apply (Art. 45). The typical examples of such straits are the Straits of Malacca and Singapore.

The Straits of Malacca and Singapore are situated between Sumatra and the Malayan peninsula and serve as a major international route linking the Indian Ocean and the South China Sea. The Strait of Malacca is 500 miles long and varies in width from 220 miles to 10 miles.18 The Strait of Singapore is just an extension of the Strait of Malacca. That is why they are always mentioned together. In the early 1970s, the straits’ coastal states attempted to extend their territorial sea to 12nm and to tighten up the control of the navigation through the Straits since the whole Straits lay within their respective territorial seas after the maritime extension. In the tripartite Joint Statement issued on 16 November 1971, Indonesia and Malaysia (but not Singapore) agreed that the Straits of Malacca and Singapore were not international straits while fully recognizing their use for international shipping in accordance with the principle of innocent passage.¹⁹ The maritime powers, such as the United States and the former Soviet Union strongly opposed this position and insisted on the international character of the Strait of Malacca and Singapore for free navigation of foreign vessels. Largely as a result of this confrontation, the compromise model of transit passage regime was reached in UNCLOS III and incorporated into the LOS Convention. Thus, for straits like the Straits of Malacca and Singapore, the transit passage regime applies.

We now turn to examine whether the stipulations governing the straits used for international navigation contained in the LOS Convention can apply to the Taiwan Strait. The geographical features described in the first section of this chapter demonstrate that the Taiwan Strait is not the strait fully within the territorial seas of the coastal states. Under such geographical circumstances, the LOS Convention expressly provides that the regime governing the straits used for international navigation should not apply to such straits as the Taiwan Strait:

Nothing in this Part affects: (a) any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such; (b) the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or (c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits (Art. 35).

On the other hand, it may be noted that other regimes established in the LOS Convention can apply to the Taiwan Strait. After the LOS Convention, the legal status of the Taiwan Strait has been changed from a strait embodying high seas waters to a strait only with waters within national jurisdiction of China. The waters within the Strait may be divided into several sea zones in accordance with the LOS Convention, i.e. the internal waters, territorial sea, and EEZ/continental shelf. Because of the different status of the maritime zones, the navigational routes within the Strait have different legal governing provisions. In the case of internal waters, China, the only coastal state to the Taiwan Strait, has full sovereignty and jurisdiction over such part in the Strait. PRC publicized part of its straight baselines in May 1996 together with its ratification of the LOS Convention. The publicized baselines include the mainland coast along the Taiwan Strait (points 19-24).20 If there is a navigational route inside the publicized baselines, then PRC has full control over the passage of foreign vessels. Similarly, along the other side of the Taiwan Strait, there should be a certain belt of waters which can be enclosed into the internal waters of Taiwan when the baselines have been determined. On 31 December 1998, the ROC authorities publicized part of its baselines, including those encircling the Taiwan Island and Penghu Islands in the Taiwan Strait.²¹