Is the Taiwan Strait in International Waters?
Shiyu, part of Jinmen county of Taiwan, lies just off Xiamen of China in the Taiwan Strait. (Photo: Reuters)
By Peter Kien-hong Yu

Is the Taiwan Strait in International Waters?

May. 17, 2019  |     |  0 comments


In May 2016, Tsai Ing-wen became the president and commander-in-chief of armed forces in Taiwan, which includes Jinmen/Quemoy and Mazu.


On March 31, 2019, two of China’s J-11 fighters flew across the middle line in the Taiwan Straits that since December 1954 has been serving as an imagined, unofficial airspace boundary between Taiwan and mainland China. The incursion lasted about 10 minutes, even as several Taiwan Air Force jets intercepted the fighters and issued a radio warning. Tsai said the next day that she has ordered Chinese fighters to be “forcibly expelled” the next time they cross the line.


In April 2019, she said the Taiwan Strait is in international waters. Is that 100 percent so? Not really. Let me spell out some of the major reasons and give one concrete example related to international regimes (IR), so as to challenge and falsify what Tsai had said and done, as neither 100 percent precise nor accurate.


First, the Westphalia Treaty, which has shaped basic international order to this day, was signed in October 1648, and the term, international, was first coined by Jeremy Bentham in his 1789 book, Principles of International Law, which can be defined as: of, relating to, or affecting two or more nations, countries, or states, as opposed to kingdoms and tribes. Given that the Taiwan Strait(s) existed more than 371 years ago and that there were no nation-states before 1648, the adjective, international, cannot be applied to the Taiwan Strait(s), until the mid-17th century.


Second, are there one Taiwan Strait or two straits? Some academics and experts would use the term, Taiwan Straits. For the purpose of writing this article, there is a major Taiwan Strait and a minor Taiwan Strait, the latter of which is located in between the Penghu Archipelago/Pescadores and Taiwan Island or the 20th Province in the Qing Dynasty since the late 19th century. To some academics and experts, the minor strait is another way for saying internal waters, which include waterways, such as rivers, canals, and sometimes the water within small bays. If so, this minor strait cannot be equated as international. Under the December 1982 United Nations Convention on Law of the Sea (UNCLOS), foreign vessels, military or commercial, do not enjoy right of passage within internal waters of any kind, innocent or transit.  However, a foreign ship can seek authorization from the coastal state, so as to assist to handle ship affairs related to labor conditions and crimes committed on board the ship, even if docked at a harbor or port.


Third, under UNCLOS, both sides of the Taiwan Straits can have exclusive economic zones (EEZ).  This zonal arrangement applies to fishing vessels from mainland China and Taiwan.  As such, the entire major Strait is definitely not fully international. Foreign vessels, military and commercial, can sail through this EEZ. However, first, it is doubtful that, during war, most foreign commercial vessels would choose to use the Taiwan Straits, due to the simple fact that the insurance fee for them would definitely go up. Second, we should always not rule out the following possible scenario: Patriotic fishermen from at least the Chinese mainland would voluntarily assemble themselves for the purpose of challenging the innocent or transit passage or freedom of navigation of foreign vessels and to deliberately collide with them, if and when necessary.


Fourth, there are many ghost towns and ghost cities in the world.  We can coin the terms “ghost straits” or “unused straits”, to be added to that list of abandoned places on land and at sea. In March 1996, the Taipei-based Central Election Commission conducted the very first presidential election in the Taiwan area. Eligible voters were able to directly choose their own candidate of choice for the first time in Chinese history. Tension mounted, because, at that time, nobody can 100 percent predict the election outcome. Beijing leaders, seeing that the pro-Taiwan’s independence Democratic Progressive Party also fielded their own presidential candidate, were concerned about the answer to the following question: What if more voters are for Taiwan’s de jure independence than those for the Chinese reunification? To defuse the Third Taiwan Straits crisis, more than 40 naval vessels, including two American aircraft carriers headed toward the Taiwan area. However, they did not enter into the Taiwan Straits.  Assuming that, at that time, there were no foreign commercial vessels in the major or minor strait, the Taiwan Straits effectively become national, not international. Such a scenario may surface a few days before January 11, 2020, when the 15th presidential election is scheduled to be held.


Fifth, Tsai has visited Jinmen many times. This remote island is on the western side of the middle line. In the late 1940s, the Chinese PLA did not succeed in taking over this strategic, remote island.


Tsai is proud of what she had militarily done in March and April 2019, if not earlier, not realizing that her words and deeds were dangerous. This is because she forgets that one cannot have everything, since Jinmen and Mazu are on the western side of the middle line.


Has she ever thought of this scenario: If the Chinese PLA again crosses the middle line and Tsai again said please do not fly to the eastern side of the middle line, does she imply that the J-11 fighters and other military airplanes can, for example, legitimately harass the airspace of Jinmen and Mazu? Or does Tsai mean that the Chinese PLA can have two small islets or islands in Penghu in exchange for keeping Jinmen and Mazu peaceful and tranquil?


Sixth, Tsai’s statement or theory, that is, the Taiwan Strait is international waters, can be easily falsified by the theory, IR, which can make international law in general and UNCLOS in particular, sovereignty, democracy, culture, etc. irrelevant for at least a period of time. Let me elaborate.


To most people in the East, the term “regime” is difficult to understand, while most people in the West can readily fully grasp it, because it was the latter who first coined the word. The origin and brief history of it is as follows:


n.

"system of government or rule," 1792, from French régime, from Old French regimen (14c.), from Latin regimen "rule, guidance, government, means of guidance, rudder," from regere (see regal).  Earlier "course of diet, exercise," late 15c. In French, l'ancien régime refers to the system of government before the revolution of 1789.


To beginners, IR may well be even more difficult to understand, because it is more abstract and convoluted than the term “regime”. To this day, the Northeast Asians in their respective languages do not have a standard translation for it. They may also wrongly think that IR only exist in the international society or international community. No, IR can be formulated in our office and bathroom at home, should a regime-related issue, such as hygiene for every user, surface on the question of whether or not to wash one’s hands after touching a dirty personal computer or toilet seat with germs and bacteria.


To this day, some academics and experts still regard the term, IR, as unclear, with no authoritative ruling on what that is, lacking consensus on its interpretation, both state practice and international jurisprudence are of only limited utility, etc.  Indeed, what they said is closer to reality than what non-experts can understand and realize. This is because each regime is fragile and can easily break up, be derailed, shattered, and return to square one, depending on the unit of analysis, be it a country, an international organization, or each individual. Imagine, if we were talking about each person on earth, the hygiene regime as noted above can easily break up, when just one of the 7.5 billion people failed to wash his or her hands after going to the toilet.


To Steven D. Krasner, who treated each regime as an intervening variable, he defined the term as follows: “International regimes are defined as principles, norms, rules, and decision-making procedures around which actor expectations converge in a given-issue area,” which could refer to space at sea, air space, outer space, and cyber space. To be sure, this definition, however popular, is definitely not closer to reality than mine, because each regime often needs to be formed, maintained, and sustained from square one, when a regime-related issue surfaces here and there, including Moon and Mars. In other words, merely testing the four criteria/core elements/features (as opposed to my 15 criteria/core elements/features) to see whether they operate 100 percent at each point in time is not enough (see the figure below, meaning, in the simplest sense, the 15 criteria/core elements/features, each shown with a “+” sign, can yield collective 100 percent common good).


Source: Peter Kien-hong Yu, International Governance and Regimes (London: Routledge, 2012).



To me, when a second human being appeared in the world, a regime would flash respectively in the mind and heart of the first person and the second person, regarding a certain issue in a given area. They (and other family members and strangers later on), under the shadow of the future, would, inter alia, cooperate and coordinate, with each other, so as to bring about 100 percent common good under a specific regime-related issue in the community-centered arrangement at a specific area. As noted above, when 12 nation-states were first created in 1648, we have to start using the term “diplomatic regime”. We can also coin a new term, intercelestial regime, when at least one or two earthlings, depending on the circumstances, chose not to come back to our planet. As such, my December 2008 definition, while treating each regime as an independent variable, is as follows: A set (or sets) of at least 15 criteria/core elements/features (including those four as mentioned by Krasner) in the context of (fragmented) issue-area, (fragmented) issue-areas, and issue-regimes. In other words, mechanism(s), which embrace devices, such as the Global Positioning System (GPS) and Automatic Identification System (AIS), and institutions, which should be understood at a lower level in terms of practices such as complying with norms and organizations in such cases as which vessel is 100 percent responsible for countering terrorism at sea, and measure(s) such as training captains and crew members to strictly comply with legally binding normative instruments, such as the Code for Unplanned Encounters at Sea (CUES), are needed to shore up each regime, which would come and go in an area. So, IR, mechanism(s), and measure(s) constitute the complete picture or one component must not do without the other two components.


A multilateral treaty related to ports, rivers, and artificial canals may well be the very first one to use the significant, innovative term “regime”. This author came across the following legal document, which was registered in League of Nations Treaty Series in October 1921 and which is still in force today: The April 1921 Barcelona Convention and Statute on the Regime of Navigable Waterways of International Concern. In short, IR have become more important than ever in a world of international and global governance, because IR (as compared to international law and others as pointed out in the above-mentioned figure) are the best tool, and, if 100 percent operational, we would not see, for example, power struggles (see the figure above).


Has Tsai ever thought of the following statement: The Taiwan Strait(s) are global, not merely international, waters, when we formulate and maintain or even sustain a garbage-retrieve regime (GR) in the Taiwan Straits, which, ironically, can bring about a closer, warmer relationship between, for instance, Taipei and Beijing leaders? Tsai thought by reminding the world that the Taiwan Strait is international, the Taiwan area can be safer, as if the middle line can serve as a Great Wall of China/ChangCheng at sea. Ironically, it is just the opposite, because IR transcend both national and international borders. Such is the paradox.


When the major strait is littered with toxic wastes, dangerous radioactive materials, a sleek of oil, etc., the GR would inevitably surface in our mind and heart. All of us in our globe would, for example, cooperate and coordinate, so as to clean up the dire strait(s). Needless to say, the experience drawn from the major strait must be globalized to other straits in the world, so as to fully match what each regime demands. In the process, we would see the spirit of one for all and all for one, to wit, no power struggles, unless one or more parties want the GR to fail.


In sum, Tsai is a politician, not a stateswoman. If she were playing a role of an academic, she is also not objective. Her statement to the effect that the Taiwan Strait is international is only partially true. What she said was especially illogical, if we apply the IR theory to counter her statement and, worse still, for having failed to comply with the ROC Constitution that Taiwan (Straits) are part of China, just as mainland China is part of China. This domestic, legislative arrangement is certainly not international.



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