China-US war of words: Is Taiwan Strait international waters?

After mainland China's military reiterated that it would not hesitate to start a war over Taiwan, China and the US have been wrangling over the international positioning of the Taiwan Strait, and whether it is considered international waters.

This may seem like a squabble over semantics and concepts, but it is in fact Beijing showing its hand to the US, increasing the likelihood of skirmishes between China and the US in the Taiwan Strait.

On 12 June, at the Shangri-La Dialogue in Singapore, Chinese defence minister Wei Fenghe declared, "If anyone dares to split Taiwan from China, the Chinese army will definitely not hesitate to start a war no matter the cost."

That same evening, citing an unnamed source, Bloomberg reported that the mainland Chinese military delivered a statement to the American government on multiple occasions, denying the status of the Taiwan Strait as international waters, thus raising the concern of the Biden administration.

The information undoubtedly came from US official sources, and while people were questioning its authenticity, Chinese foreign ministry spokesperson Wang Wenbin clarified on 13 June, "There is no legal basis of 'international waters' in the international law of the sea."

Wang came prepared with geographic data and laws, saying, "China has sovereignty, sovereign rights and jurisdiction over the Taiwan Strait. At the same time, it respects the lawful rights of other countries in relevant waters."

He also hit back at the US for calling the Taiwan Strait "international waters", adding that the US was trying to "find a pretext for manipulating issues related to Taiwan and threatening China's sovereignty and security."

So, what are international waters? And how should the Taiwan Strait, which is 70 nautical miles at its narrowest point and 220 nautical miles at its widest, be defined?

According to the United Nations Convention on the Law of the Sea (UNCLOS), every state has the right to establish its territorial sea up to a limit of 12 nautical miles from its baselines, and foreign ships have the right of innocent passage through the territorial sea. There is also a contiguous zone, which may not extend beyond 24 nautical miles from where the territorial sea is measured, and coastal states may exercise controls to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.

Coastal states also have an exclusive economic zone (EEZ) that shall not extend beyond 200 nautical miles from where the territorial sea is measured, within which it has sovereign rights of exploring and exploiting, conserving and managing the natural resources of the seabed, waters above the seabed, and the subsoil, while other states have freedom of navigation and overflight, and the laying of submarine cables and pipelines. Beyond the EEZs are the open seas, or what the UNCLOS refers to as high seas.

Indeed, Beijing is right in saying that there is no mention of "international waters" in UNCLOS. That term is derived from The Commander's Handbook on the Law of Naval Operations, where the US defines all waters beyond territorial waters - including the contiguous zone, EEZ and high seas - as "international waters".

But whether it is the US definition of "international waters" or the EEZ in UNCLOS, the consensus is that foreign ships have freedom of navigation in those areas.

Since Beijing also claims to respect the lawful rights of other countries in relevant waters, then why butt heads with the US over one term?

A professor from the law faculty at National Taiwan University believes that Beijing is waging a cognitive warfare - denying the international nature of the Taiwan Strait is ultimately making it part of China's waters.

Is this truly the case? An article published on social media by Meng Yan, deputy director of the Ministry of National Defense's International Communication Bureau, revealed Beijing's perspective.

He pointed out that by declaring that the Taiwan Strait is not international waters, China intends to tell the world that it has jurisdiction over the Taiwan Strait, foreign ships should not freely enter the area, and sovereignty violations could happen if strict controls were not implemented.

Meng also referred to the 1986 Black Sea incident to illustrate his point. The Soviet navy was caught off guard in March 1986 when two US destroyers entered Soviet territorial waters. The Americans swiftly intercepted the Soviet radars and electronic communication devices and "vacuum up" the electromagnetic spectrum for communication signals as these coastal electronic equipment were in full operation.

Meng asserted that such situations must not happen in the Taiwan Strait and claims that US warships have already passed through the Taiwan Strait 38 times since 2019. He warned, "These muscle-flexing transits must not happen again and must be subject to our supervision. Freedom of navigation is fine, but freedom to harass is not."

In sum, while Beijing is not trying to turn the Taiwan Strait into its "internal waters", it is likely to exercise some sort of jurisdiction over it. This is in line with Wei's comment that China "will not hesitate to start a war" and also China playing the international law card against the US.

While it is unlikely that Beijing would directly intercept US warships, it could gradually boost and expand its scope of surveillance, or even fly People's Liberation Army warplanes over US warships.

In fact, China is already strengthening its interception of close-in reconnaissance by foreign warplanes. Since May, Canadian and Australian surveillance planes have been intercepted by Chinese military aircraft around the Korean Peninsula and above the South China Sea respectively.

On the Taiwan Strait issue, the mainland on one side and the US and Taiwan on the other have accused each other of attempting to unilaterally change the status quo. Taiwan refuses to acknowledge the 1992 Consensus; the mainland is sending more Chinese warplanes into Taiwan's air defence zone; while the US has been increasing its symbolic political support for Taiwan. In the end, all three parties are "slicing the salami", leaving less and less ambiguous space for interpretation, and escalating security risks.

However, while the mainland, the US and Taiwan are constantly testing the bottom line, all three parties are also treading carefully. After all, the US and both sides of the Taiwan Strait have long relied on "creative ambiguity" to maintain the balance of power and peace in the Taiwan Strait. This includes the US's sophisticated one-China principle and strategic ambiguity, as well as the 1992 Consensus.

If any party unilaterally ruins the existing ambiguity, everyone will have less room to manoeuvre. At the end of the day, nobody wants to see military friction or confrontation in the Taiwan Strait.

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