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Maritime laws apply to economic trade zones

Differences in opinion over the so-called dividing line in the Taiwan Strait exist because Taiwanese law does not cover it. Minister of National Defense Wu Shih-wen (伍世文) recently said a US warship made an "innocent passage" (無害通過) through the Taiwan Strait. His remarks evoked criticism from professor Hu Nein-tsu (胡念祖) of Sun Yat Sen University.

Hu argued that the dividing line in the Taiwan Strait is situated in Taiwan's exclusive economic zone, and is not considered international waters. Hu was right when he said that foreign vessels navigating through this region should comply with Taiwanese law. If Taiwan's exclusive economic zone is the area within 200 nautical miles of Taiwan's coast, then the Taiwan Strait is contained within its economic zone. It is noteworthy that foreign ships have navigated through the Taiwan Strait for the past one thousand years. Even after the signing of the Convention on the Law of the Sea (海洋公約法) in 1982, the Taiwan Strait was still regarded worldwide as an international body of water. Neither Beijing nor Taipei has laid exclusive claim to it.

If we define the east side of the dividing line as part of our exclusive economic zone, are foreign vessels free to navigate it? Article 90 of the UN Convention on the Law of the Sea says that every nation, whether coastal or land-locked, has the right to sail ships flying its national flag in international waters. Article 95 also says warships in international waters enjoy complete immunity from any state's jurisdiction other than its native state. In other words, foreign vessels in exclusive economic zones are subject the laws of high seas.

In addition, Articles 37 and 38 stipulate that all ships and aircraft enjoy the right of passage through straits used for international navigation between one part of the high seas or an exclusive economic zone and another parts of the high seas or exclusive economic zone. These two articles are applicable to the Taiwan Strait.

According to Taiwan's regulations on international navigation in these zones, "innocent passage" applies only to our territorial waters. There are no provisions on the passage of foreign vessels in the exclusive economic zone. This is because regulations on international high seas navigation are applicable to the exclusive economic zone. As a result, Taiwan's law on the Continental Shelf and Exclusive Economic Zones (經濟海域及大陸礁層法) only prohibits the illegal discharge of pollution (Article 11) and authorizes the government to chase, board and inspect ships violating our law (Article 16).

The passage between Taiwan and China's 12-nautical-mile territorial waters is 50 nautical miles wide. It has been a passage for international navigation for a long time. If the passage is regarded as an international strait and exclusive economic zone, foreign ships (including warships) enjoy the right of passage. If the Strait is placed under Taiwan and China's jurisdiction, international passage would become prohibited, or require Taiwanese and Chinese permission. Given the circumstances between the two nations, regional conflict in these waters would become inevitable. In light of how Indonesia, Singapore, and Malaysia handled disputes over the Strait of Malacca (麻六甲海峽) and how Indonesia handled international passage in the Strait of Lombok (龍目海峽), we know that straits shared by many countries should be open to free passage in order to avoid disputes.

In short, unless war breaks out between China and Taiwan, the Taiwan Strait should remain an international strait in peace time.

Chen Hurng-yu is a Research Fellow at the Institute of International Relations, National Chengchi University.
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