Basic marine laws of mainland China and Taiwan: comparisons and regional implications

2    Basic marine laws of mainland China and Taiwan

Comparisons and regional implications

Introduction

The UN Year of the Ocean – 1998 – is significant for China, including both Taiwan and the mainland, in respect of the marine legislation. Early in January that year Taiwan promulgated its Law on the Territorial Sea and the Contiguous Zone and the Law on the Exclusive Economic Zone (EEZ) and the Continental Shelf,¹ while in June the mainland also promulgated its Law on EEZ and the Continental Shelf² which is another major marine legislation after its 1992 Law on the Territorial Sea and the Contiguous Zone.³ Thus an interesting phenomenon occurred: two governments of China promulgated two sets of basic marine laws applicable to the same geographical areas. Since such laws are of strong extraterritorial nature, a comparison is necessary in the context of international law. Also, since China is now a divided nation, the above laws of the same nature certainly carry political, economic, and strategic ramifications. This chapter attempts to review and assess these laws to see how they were formulated and to what extent they can be implemented in practice; what kind of difficulties the two governments of China face to implement these laws and whether there is a possibility to coordinate, or even unify, these laws in the future for the interest of the whole of China. It should be pointed out that China referred hereto is a “greater China” including the mainland and Taiwan. Despite the consensus, the interpretation of “one China” by the mainland and Taiwan may be different. To Beijing, “one China” means “the People’s Republic of China” with Taiwan to become a “Special Administrative Region” after unification. Taipei, on the other hand, considers “one China” to mean the Republic of China founded in 1912 and with de jure sovereignty over all of China. The ROC, however, currently has jurisdiction over Taiwan, Penghu, Kinmen, and Matsu. Taiwan is part of China, and the Chinese mainland is part of China as well.⁴ An alternative name for the mainland is the People’s Republic of China (PRC) and for Taiwan the Republic of China (ROC), which will be occasionally used throughout this chapter when necessary.

The seas adjacent to China are the Yellow Sea, the East China Sea, and the South China Sea. The Yellow Sea is about 380,000sq km, 44m of depth on average with a maximum depth of 140m. Within the Yellow Sea there is Bohai, which is an internal sea of China. The East China Sea is a wider shallow sea with an average depth of 370m and 770,000sq km in size. The South China Sea is bounded on the north by mainland China, on the east by the Philippine archipelago, on the south by Kalimantan, and on the west by the Malay peninsular and Vietnam. The area of the South China Sea is about 3.5 million sq km with an average depth of 1,212m and a maximum depth of 5,559m.5 One common characteristic of the above seas is their semi-enclosed nature as is defined in the 1982 United Nations Convention on the Law of the Sea (the LOS Convention). The coastal lines along the mainland are more than 18,000km in length, and the coastal lines around islands are 14,000km in length. There are about 6,000 islands in these seas.⁶ Natural resources including fisheries and petroleum are abundant.

Actual jurisdictional maritime zones of mainland China and Taiwan

According to the LOS Convention, a coastal state is entitled to have full sovereignty over its internal waters and territorial sea, except that foreign vessels enjoy innocent passage in the territorial sea, and a coastal state has sovereign rights over the EEZ and the continental shelf. For the purpose of realizing these rights granted by international law, a coastal state may enact domestic laws and regulations to govern the above sea areas and human activities therein. Because of the differences in nature between the territorial sea and the EEZ/continental shelf, coastal states usually treat them separately in legislation, which can be seen in the two sets of the laws promulgated by PRC and ROC.

The PRC Law on the Territorial Sea provides that it is applicable to all the land territory of China including the mainland and its coastal islands, Taiwan and the islands appertaining thereto, all the islands in the South China Sea (Art. 2). On the other hand, the corresponding Taiwanese Law has no such detailed listing, only mentioning that ROC’s sovereignty extends to cover the territorial sea, airspace above it, and the seabed and subsoil thereof (Art. 2). Since both sides across the Taiwan Strait have claimed their governance over the whole of China, in theory both laws on the territorial sea apply to the entire territorial sea of China. In reality, what each of the sides controls is different: for the mainland, the actual jurisdiction area is the territorial seas of the mainland and its coastal islands and some of the South China Sea islands, particularly the Paracel Islands. For Taiwan, it is Taiwan Island, the Penghu Islands (the Pescadores), Jinmen (Quemoy or Kinmen), Mazu (Matsu), and some islands in the South China Sea, particularly the Pratas Islands. It is obvious that the laws of both sides only apply to the respective territorial sea areas within their actual jurisdiction.

What is more complex in the applicability of the laws on the territorial sea as well as the laws on the EEZ is the difficulty resulting from cross-Strait relations. The mainland has long claimed that Taiwan is a province of China and the Taiwan government is a local authority. PRC has firmly opposed the ideas of “two Chinas”, “one China, one Taiwan”, or “one country, two governments”.7 Therefore, PRC does not recognize the validity of the Taiwanese laws such as the territorial sea law or the EEZ law. Despite such claims, the mainland faces a dilemma in that its law, though applicable on paper, cannot apply in reality to the water areas under Taiwan’s jurisdiction. For these waters, the Taiwanese laws apply and they are de facto valid vis-à-vis the mainland law applying to the water areas under the mainland’s jurisdiction. Taiwan’s attitude is somewhat different from that of the mainland. In 1991 Taiwan terminated the Period of National Mobilization for Suppression of the Communist Rebellion and the communist regime in the mainland has since been no longer regarded as a rebellion but as an unfriendly regime in control of the mainland. Such a step is regarded as a tacit abandonment of Taiwan’s claim to be the government of the entire China.⁸

The relationship between the mainland and Taiwan is not international but intranational. Such a characteristic has also been reflected in their marine laws. The PRC law on the territorial sea is proclaimed to apply to Taiwan and its adjacent islands. Though there is no such proclamation in PRC’s EEZ law, it is assumed that the EEZ law is also applicable to Taiwan and its adjacent islands since the EEZ is an extension of the territorial sea of a coastal state. PRC treats, as a government policy, the Taiwanese residents as its nationals so that the Taiwanese can come and go across the mainland border without a visa. However, ROC regards the mainlanders as Chinese, but treats them differently from the Taiwanese. In 1992, ROC adopted the Statute Governing the Relations between the People of the Taiwan Area and the Mainland Area. It has since become a basic law to regulate, inter alia, the entry and exit of the mainlanders to Taiwan Island and other areas under ROC’s control, including the water areas. ROC designated prohibited and/or restricted water areas around Taiwan Island, the Penghu Islands, Jinmen, Matsu, Dongyin, Wuqiu, the Pratas Islands, and Taipin Island in the South China Sea. The mainland vessels are not allowed to enter these areas.⁹ The ROC territorial sea law, accordingly, provides that the mainland vessels should comply with it when passing through the territorial sea of ROC in addition to the Relations Statute (Art. 7). The term “ROC” used to govern relations between the mainland and Taiwan is confusing because politically the ROC is not Taiwan only. It should be more appropriate to use the term “Taiwan Area” instead of “ROC” in its law. It is acknowledged that the name “ROC” here is closer to the “Taiwan Area” defined in the Statute Governing the Relations between the People in the Taiwan Area and the Mainland Area.10 This is also a dilemma the ROC government faces in the context of cross-Strait relations.

Territorial sea and contiguous zone

The LOS Convention has established the territorial sea regime including the criteria for baselines, breadth of the territorial sea, innocent passage, and other governance matters. One identical aspect in the laws of the territorial sea of both the mainland and Taiwan is the breadth of the territorial sea: both provide 12nm.¹¹ While there are other similarities in the two laws, there are at least two major departures from each other.

First, the mainland law has continued to insist on its innocent passage regime for foreign warships, i.e. the requirement of prior permission, which was first set forth in the 1958 Declaration on the Territorial Sea.¹² Innocent passage means a passage through the territorial sea of a coastal state without creating any prejudicial impact upon the peace, good order or security of the coastal state.¹³ Article 6 of the PRC law provides that foreign ships for non-military purposes enjoy the right of innocent passage but foreign ships for military purposes are subject to approval by the Chinese government before entering China’s territorial sea. This requirement is not consistent with the LOS Convention, which provides that ships including warships have the right of innocent passage (Art. 17). During UNCLOS III, PRC used every occasion to oppose the adoption of this provision, but its efforts went to no avail. In 1996 when PRC ratified the LOS Convention, it made a statement to the effect that the provision on innocent passage in the LOS Convention should not affect the right of the coastal state to regulate the passage of foreign warships in its territorial sea.¹⁴ Since PRC has fully realized that its prior permission requirement is in conflict with the LOS Convention, and since PRC ratified that Convention and has to bear the treaty obligation to bring its relevant domestic law in line with the Convention, PRC thus hinted in the same statement that only prior notification may be enough for foreign warships passing through China’s territorial sea. This may require a change of domestic law. Moreover, there is a problem in practice in implementing the two different rules: prior notification and prior permission. It is not clear whether PRC will harmonize its law with the LOS Convention soon.¹⁵

In ROC’s law, however, the requirement for the innocent passage for foreign warships is different from that found in the PRC law. The ROC law provides that foreign vessels for military purposes or public services should give a prior notification when passing through ROC’s territorial sea (Art. 7). Prior to 1998, Taiwanese authorities required foreign warships to obtain permission before passing through the territorial sea, thus the legislation represents a significant change of its former position.¹⁶ The prior notification requirement seems not consistent with the LOS Convention either, though it is softer than the prior permission requirement. However, since Taiwan is not a signatory to that Convention, it has no obligation to comply with the Convention unless the rule of innocent passage for warships is or becomes part of customary international law.

The second major departure in the ROC law from the PRC law is concerning the baselines of the territorial sea. PRC has determined to use the method of straight baselines for the entire territorial sea of China,17