China Claims To Own The Taiwan Strait. That’s Illegal.

With the U.S. and Taiwan in trade talks this week, tensions have been rising across the Taiwan Strait. Like a Jedi and a Sith pacing before a duel, the U.S. and Chinese militaries have been engaging in “routine” operations in the Strait. As the U.S. and Taiwan announced growing trade ties in early June, China carried out “multi-service joint combat readiness patrols” near Taiwan. After a top Chinese General traded barbs with U.S. Secretary of Defense Lloyd Austin at the Shangri-La dialogue in Singapore, China’s Foreign Ministry declared on June 13 that the Taiwan Strait is not international waters, but “are China’s internal waters, territorial sea, contiguous zone and exclusive economic zone in that order.” The U.S. State Department responded that the Strait is an “international waterway,” and sent an anti-submarine aircraft over the Strait to prove its point. China promptly sent 29 fighter jets into Taiwan’s airspace on June 22. The Taiwan Strait, indeed, contains international waters. China’s claim to the contrary can harm world trade, freedom of navigation, and the rule of law.

The Taiwan Strait is a strategic body of water that provides security to Taiwan and critical mobility for international trade and freedom of navigation to the international community. It connects the South and East China Seas, making it a key route for transit and trade between East and Southeast Asia. The Strait is about 86 nautical miles wide at its narrowest point, comparable to the distance between Key West and Cuba.

Under the United Nations Convention on the Law of the Sea (UNCLOS), to which China is a party, China enjoys a 12 nautical mile territorial sea off of its coasts. China does not consider Taiwan to be a sovereign state, and therefore claims the 12 nautical miles off of Taiwan’s coast as its territorial sea as well. However, regardless of the status of Taiwan as a country, the Taiwan Strait still contains a corridor of international waters and airspace beyond the territorial sea of any state. Within this corridor of international waters and airspace, all states and their vessels enjoy freedoms of navigation and overflight and all internationally lawful uses of the sea and air.

While China may have limited rights and jurisdiction in the parts of the Strait that comprise its contiguous zone (CZ) and exclusive economic zone (EEZ), it does not have sovereignty over these areas. CZs and EEZs are international waters in which high seas freedoms of navigation and oversight apply. The area above these international waters is commonly known as “international airspace” and is similarly not subject to any nation’s sovereignty. Under UNCLOS, even within China’s 12 nautical mile territorial sea, other nations may exercise “innocent passage” without China’s permission, meaning that they can engage in activities that do not harm “the peace, good order, or security” of a coastal state, as defined in the treaty. Aircraft do not have an analogous right to overflight of the territorial sea.

In claiming that the Taiwan Strait is not international waters, China is again engaging in legal warfare, or lawfare. China’s position that the Taiwan Strait is not international waters threatens freedom of navigation throughout the South and East China Seas. Approximately one-third of the world’s trade transits through the South China Sea, over almost all of which China illegally claims sovereignty. China’s false claims of sovereignty over features in the South and East China Sea have led to its military and paramilitary maritime militia encroaching on its neighbors’ sovereignty, harassing their personnel, and illegally fishing from their waters. To defend its claims, China uses lawfare by advancing incorrect interpretations of international law in order to justify its claims to its neighbors’ territory and maritime rights. Although many of China’s legal claims to features in the South China Sea were invalidated in a lawsuit with The Philippines, decided in 2016, China’s false claims of sovereignty over its neighbors’ land and waters continue—and China’s aggression against Taiwan has only worsened.

China’s claim that the Taiwan Strait is not international waters is part of a pattern of attempts to assert increasing control over its neighboring seas using lawfare. Besides its erroneous interpretations of UNCLOS, China has enacted a revised Maritime Traffic Safety Law and a Coast Guard Law asserting “jurisdiction” over waters beyond UNCLOS-prescribed boundaries, authorizing its Coast Guard to use force there, and illegally obstructing passage of foreign vessels there. China “closes” parts of the South China Sea for parts of each summer to assert its sovereignty, on the pretense of protecting fish stocks. China also uses its “domestic” fishing fleet rather than its distant-water fishing fleet within the South China Sea, since it claims those waters as its own, and illegally plunders fish from its neighbors’ seas and harms their economies and livelihoods.

International law affords rights and freedoms to all states to share our oceans, our most precious shared resource, and provides powerful rules for protecting the seas. The U.S., its allies, and all those who support free trade and navigation must counter China’s lawfare and rebuff China’s continued attempts to undermine the rule of law.