The Chinese exploration vessel Fen Dou No. 4 has finally departed from Taiwanese territorial waters.
It cannot be denied that any activity of Chinese vessels within Taiwan's territorial waters is unavoidably sensitive, and any actions must therefore be reasonable and show restraint. Due to the complexity of this matter, involving both domestic and international factors, it is necessary to take a hard look at international marine regulations both in order to ensure domestic and international support and to avoid weakening our juridical position.
Under international law, there are three possible reasons for the activities of Chinese exploration vessels. They may conduct scientific research, explore the seafloor looking for resources or minerals, or engage in military exploration. Vessels may engage in one or several of these activities, but regardless of the situation, international law grants Taiwan the right to take appropriate measures.
First, if China claims it is conducting scientific research, the UN Convention on the Law of the Sea as well as relevant laws in Taiwan clearly stipulate that marine scientific research shall be conducted only with the express consent of and under the condition set forth by the coastal state. Beijing clearly did not ask Taipei's permission to engage in scientific research, and has therefore undertaken illegal scientific research activities in Taiwan's exclusive economic zone.
Second, if China claims to be exploring the seafloor looking for resources or minerals, Taiwan holds jurisdiction because it has "sovereign rights" to exploration activities within its exclusive economic zone. Without obtaining Taipei's consent, Beijing is engaging in illegal exploration.
Third, even if China is gathering military intelligence, international law stipulates that marine military activities in an exclusive economic zone are part of maritime freedom, and no coastal state has the right to intervene. Likewise, official vessels gathering military intelligence could be classified as exploring other states' naval or other military activities.
Because of the unclear definition of "military activities," gathering marine military intelligence in territorial waters controlled by another state still falls under the heading "marine military activities." However, if a vessel is not a military vessel or a vessel of similar character, and claims to be engaging in scientific research, while actually gathering military intelligence, then international law says that since that kind of activity is not conducted by a military organization, and the coastal state has the right to deny that the activity is a military activity.
If scientific research vessels are gathering military intelligence in the territorial waters of coastal countries, then their actions can be defined as espionage, and international law does not allow scientific research ships or fishing boats to carry out espionage directed at coastal nations. Coastal nations have the right to take necessary measures against this kind of vessel. Japan has fired on and sank North Korean spy ships entering Japan's exclusive economic maritime zone. Sweden and Norway used to issue strongly-worded statements, vowing to take all necessary measures after discovering that unidentified submarines were gathering intelligence in their territorial waters. This then became customary practice.
Whether from the perspective of international or domestic law, Taiwan has the right to take "necessary measures" against intruding scientific research ships. Such measures can range from simple warnings or demanding that the intruding vessel leave to forcing them out or detaining them. If a targeted ship reacts with hostility, Taipei can adopt corresponding measures, including the use of force. This right is not affected or restricted by the fact that a Chinese ship enjoys sovereign immunity while carrying out public missions.
Legally speaking, there is certainly ample reason to take active action, but is true also from a policy perspective? Looking at numerous similar cases in the past few years, we see that China in 1999 began utilizing these so-called scientific research ships to constantly test Taiwan's limits. In less than one month, between the end of April and mid-May this year, the Chinese vessles Tanbao and Fen Dou No. 4 twice invaded Taiwanese waters.
Rarely have Chinese ships left Taiwan's territorial waters as a result of Taiwan's soft approach, and they have instead completed their missions unhunrriedly, disregarding Taiwan's sovereign rights to self defense.
With regards to the protection of Taiwan's maritime rights, I believe that there is still room for improvement. Even if Taipei cannot react as fiercely as Tokyo when dealing with a North Korean spy vessel, it should at least follow the example of Sweden and Norway and issue strongly-worded statements that if Chinese scientific research ships engage in unauthorized activities in Taiwanese waters the government will take decisive and appropriate action.
Weak responses allowing Chinese vessels to leave when they please will cause the public question the government's determination and capability to protect the nation's territorial waters. More important, if Taipei gives an inch, Beijing will take a mile and these activities will become more and more frequent.
Chiang Huang-chih is an associate professor in National Taiwan University's College of Law.
Translated by Lin Ya-ti and Daniel Cheng
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