When I was teaching in Lesotho in southern Africa during the 1980s, I taught a class on comparative foreign policy. The course included trips to the US embassy, the Soviet embassy, the British embassy and the newly established Chinese embassy. The students could ask the ambassadors and staff questions about foreign policy, and would then write a report as their final term paper.
The Chinese ambassador felt that the US-style education I delivered was unique and invited me to go to China to teach.
At the time, China was planning to open up to the world, and it needed professors versed in public international law to cultivate domestic talent. All of the professors who after World War II studied in the West and returned to China had disappeared during the Cultural Revolution, so China had to rely on foreign experts.
It just so happened that Washington was at the time keen to send members of the US Peace Corps to China, and the UN was planning to set up an office in Xian. International organizations wanting to regulate nuclear weapons were having difficulty finding people to go to China to lobby for it to join the Treaty on the Non-Proliferation of Nuclear Weapons.
China did not sign the treaty, nor did India. With India refusing to sign, Pakistan did not either. Without Pakistan, Israel and France also refused. These countries had by that time developed nuclear weapons, and there was a rapid proliferation of nuclear warheads throughout the world.
I stepped up to the plate and went to China to accept a position as a professor for public international law, doing a job that nobody else was willing to do. Within my curriculum, I taught graduate students about Taiwan’s political status and legal standing without interference from the Chinese Communist Party (CCP).
According to the theory and practice of international law, Taiwan is a country. It is a de facto and de jure independent and sovereign nation. It is only because the international community is afraid of offending China, the most populous country in the world, that so few countries recognize Taiwan as a nation, hindering the nation from freely developing relations on the international stage.
At the Shangri-La Dialogue security summit in Singapore last month, Chinese Minister of National Defense General Wei Fenghe (魏鳳和) said that Taiwan is a “part of China.”
Later, Chinese Ministry of Foreign Affairs spokesman Wang Wenbin (汪文斌) said that the Taiwan Strait was “not international waters” and rejected the idea that other countries should enjoy freedom of navigation through the Strait or have the right of innocent passage.
The questions this raises are: Does China consider the Strait to be an internal waterway? What legal basis would such a claim have?
This is a perfect example of how the CCP has no regard for the law.
According to traditional international law of the sea, a strait is a waterway that connects two areas of international waters, through which foreign vessels, commercial shipping and military ships have a right of “innocent passage.”
The conclusion of the Corfu Channel case heard by the International Court of Justice from 1947 to 1949 stated that a strait is an open route in international waters through which every country has a right of innocent passage. This definition was adopted in the Convention on the Territorial Sea and Contiguous Zone of 1958, an international treaty that entered into force in 1964.
Even if only one part of a strait opens into international waters and the other part is internal waters, commercial shipping can still pass through it, in wartime and in peacetime.
Beyond Taiwan’s and China’s coastal waters, defined as a zone of 3 nautical miles (5.56km) from their respective shores, the Taiwan Strait has also historically been considered high seas, through which ships of any country have a right of innocent passage.
In 1895, when Imperial Japan defeated the Qing Dynasty, the two sides signed the Treaty of Shimonoseki calling on Beijing to recognize the independence of Korea, and to cede Formosa (today’s Taiwan), the Pescadores (today’s Penghu County) and China’s Liaodong Peninsula to Japan.
The Liaodong Peninsula was so vast and vital to all parties concerned that Russia, France and Germany forced Japan to return it to the Qing emperor. When Japan asked Beijing for Formosa as compensation, the Western powers, again, pressured Japan to accept that the Taiwan Strait would remain international waters. Japan agreed to the condition and Beijing ceded Formosa to Japan.
As a result, the Taiwan Strait has been considered and utilized as high seas since 1895, granting all states and ships the right of innocent passage. China cannot just ignore such historical facts.
On the question of whom a strait that separates two countries belongs to, if it is less than 11.1km wide, a median line is to be drawn and the countries can regard their half as their internal waters.
Expert opinion is divided on what happens when the strait is wider than 11.1km. Some believe that the countries on either side, again, should draw a median line and each can regard the waters on its side as its territorial waters.
However, the majority of experts agree that the seas beyond the 5.56km zone of either country is to be considered international waters.
This means that the seas beyond Taiwan’s and China’s 5.56km zones in the 160km-wide Taiwan Strait have traditionally been considered international waters, through which the ships of any country have the right of innocent passage.
The CCP continuously flouts the law and takes for itself whatever it wants. It has always declared that Taiwan is part of its territory, so why not claim that the Taiwan Strait belongs to it, too?
Except it cannot do that.
There is one simple, reasonable solution to this problem. The US should recognize Taiwan as an independent, sovereign nation, and other countries would naturally follow suit, with no need to fear China. What have major countries and blocs such as the US, the EU Japan and Australia to fear?
If they did this, the Taiwan Strait would officially be considered a waterway separating two countries. With the exception of the 5.56km zones on either side, the Strait would be international waters, and China would have no basis on which it could claim that it is not, regardless of the threat of its nuclear armory.
The ships of countries throughout the world, whether commercial or military vessels, in wartime or peacetime, would have the right of innocent passage, and the legal dispute would be solved.
Now we just need to see whether the US has the courage to recognize Taiwan.
Hsieh Shu-yuan is an independent researcher and a professor of public international law living in Hawaii.
Translated by Paul Cooper
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