On Jan. 3, one of Taiwan’s undersea cables was damaged about 7 nautical miles (13km) north of New Taipei City’s Yehliu (野柳). The Coast Guard Administration (CGA) identified the Cameroonian-flagged freighter the Shunxing-39 (順興39號) as being nearby at the time of the incident based on an analysis of satellite data and the ship’s automatic identification system signal. Coast guards dispatched to investigate were unable to board the vessel, owned by a Hong Kong company, due to rough weather. Even though the CGA ordered the ship to return to waters off the Port of Keelung, it did not have the authority to enforce the order after the vessel refused to comply, and the Shunxing-39 was able to leave the area.
Compare this incident with the case of the Chinese bulk carrier Yi Peng 3 (伊鵬3號), which is suspected of having dragged its anchor to damage undersea cables in the Baltic Sea in November last year. Based on these events, and the frequency of suspected incidents of sabotage involving undersea cables around Taiwan, it is likely that these episodes are part of “gray zone” tactics or “hybrid warfare.”
However, protecting Taiwan’s undersea cables involves serious legal challenges, and therefore must be handled with caution.
Under international law, the place where the cable was damaged on Jan. 3 is within Taiwan’s territorial waters, so Taiwan has jurisdiction over the ship. However, it is difficult to determine which ship damaged a cable before it leaves Taiwan’s waters. The responsible vessel is often identified by tracing back with the help of identification and tracking systems, but that is all that happened after the damage was discovered. With the suspected ship no longer being within Taiwan’s territorial waters, whether the right of hot pursuit can be asserted at that point is questionable.
Although the UN Convention on the Law of the Sea (UNCLOS) recognizes countries’ need to protect undersea cables, it does not grant them universal jurisdiction as it does over piracy.
Article 10 of the 1884 Convention for the Protection of Submarine Cables grants a belligerent warship the right of visit — to board a neutral merchant ship — but only so far as to verify the vessel’s nationality.
The 1982 UNCLOS stipulates that states should adopt laws and regulations to punish ships flying the flag of that state or persons subject to its jurisdiction should they contravene the convention. That means a state does not have the executive jurisdiction outside its territorial waters to investigate the sabotage of its undersea cables.
This is also the reason why the coast guards of Germany and Sweden, and the Royal Danish Navy were ultimately left powerless despite their joint efforts to monitor and confront the Yi Peng 3.
In terms of domestic law, the CGA can apply Article 4, Paragraph 4 of the Coast Guard Act (海岸巡防法) to the Jan. 3 incident, but that power is limited to ordering vessels to stop sailing or return to port.
Under the principle of legal reservation, forcibly bringing the suspected vessels back to a Taiwanese port would undoubtedly leave frontline law enforcement officers under legal risk based on the Coast Guard Act.
There are loopholes in Taiwan’s legal system allowing innocent passage. Although the Act on the Territorial Sea and the Contiguous Zone of the Republic of China (中華民國領海及鄰接區法) and the Regulations on the Administration of Innocent Passage of Foreign Vessels through the Territorial Sea of the Republic of China (外國船舶無害通過中華民國領海管理辦法) cover some aspects of innocent passage, these provisions focus only on prohibiting the vessels that exercise the right of innocent passage from engaging in certain behavior, and require notification and permission. Taiwan lacks the regulations on law enforcement, supervision and necessary measures that are truly needed.
This is why many substandard flag of convenience vessels — ships registered in a country other than their country of ownership, which sometimes operate in unsafe conditions — are often seen in Taiwan’s territorial waters, giving suspicious ships the opportunities to blatantly damage undersea cables.
In terms of domestic systems, the maritime security system and management can be divided into three aspects to counter China’s maritime “gray zone” operations: beyond territorial waters, territorial waters and internal waters, and ports.
However, based on Taiwan’s current judicial administrative organization, the three aspects are mainly under the authorities of the Ministry of Transportation and Communications and the Ocean Affairs Council.
In terms of maritime security, the agencies have overlapping or complementary authority and responsibility, but due to a lack of communication and collaboration between them, maritime security and management are dealt with inconsistently.
Of particular concern is the ministry’s recent strategy of outsourcing or privatizing port and maritime transportation management.
From an economic perspective, that is fair, but the implementation of such a strategy ignores the principle that security management should be the exclusive province of state power, which in turn leads to the bizarre situation in which commercial benefit takes precedence over national security.
To prevent the new type of “gray zone” warfare that uses flag of convenience ships to cut undersea cables, the government must pay close attention to the development of the Yi Peng 3 incident in Europe, and how EU countries interpret and apply the laws on international undersea cable protection.
Moreover, as the undersea cables around Taiwan also affect the interests of Japan, the US and European countries, Taiwan must work closely with these countries to further jointly protect undersea cables. The government also needs to address deficiencies in the legal system, and promote the legal integration of agencies to cope with the increasingly severe situation.
Chiang Huang-chih is a professor of international law at National Taiwan University.
Translated by Lin Lee-kai
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