China’s Taiwan Strait Provocations Need a U.S. Response

Tension has been mounting of late in the Taiwan Strait. China has launched a “multi-domain campaign” against the Taiwan government in an attempt to pressure pro-independence President Tsai Ing-wen to accept the 1992 “One China” consensus. China’s measures range from dispatching bombers, fighter jets, and warships to circle around the island, conducting live-fire military exercises in waters close to Taiwan, squeezing Taiwan’s diplomatic space by cutting off its diplomatic ties, limiting its access to international organizations, and various economic measures.

The United States, due to its commitment to the defense of Taiwan, has called on China to curb its aggression and avoid military action. The increased measures by China could potentially upset the status quo that has been in place for almost 70 years and maintained by U.S. support. As the U.S. call has ostensibly gone unheeded, its Defense Department was reportedly considering sending warships to calm the troubled waters in the Taiwan Strait.

Sending the warships that way, while well intended, could potentially intensify the situation rather than calming it. In contrast, a freedom of navigation operation by the U.S. Navy in the Taiwan Strait might promote the U.S. agenda without generating unwanted consequences. This seems counterintuitive, but acting to contest the rule of law at sea with Beijing—instead of directly challenging it over its aggression toward Taiwan—could serve U.S. purposes without provoking a confrontation.

China’s interpretation of the United Nations Convention on the Law of the Sea (UNCLOS) differs sharply from that of the United States, which bears directly on the Taiwan Strait. The strait is about 90 miles wide. Mainland China and Taiwan each have 12 nautical miles of territorial waters from their coastal lines respectively. Between these two banks are 65 nautical miles of waters claimed by the two sides as exclusive economic zones, special areas created by the UNCLOS. The 65-nautical mile zones in the Taiwan Strait would stand even if China and Taiwan were to be unified.

The United States has traditionally used the term “international waters (and spaces)” for all the ocean areas outside of coastal nations’ 12-nautical-mile territorial zones and insisted on unfettered freedom of navigation for all countries on these “commons,” including military activities. The 65-nautical-mile waters in the Taiwan Strait are no exceptions.

China, however, argues that “international waters” is not a legal concept in the Law of the Sea; rather there are only the 200-nautical-mile exclusive economic zones and the high seas beyond that. China also insists that while the high seas are truly free to all, the economic zones are not, particularly to military activities.

The UNCLOS is ambivalent on this issue. While it grants nations with such zones sovereignty over subsurface (marine) resources, but not the waters themselves (i.e., exclusive economic zones are not territorial water zones), and cautions nations to exercise courtesy in the zones, it nevertheless allows signatory member nations to hold reservations on the issue of foreign military activities there.

About 10 percent of UNCLOS members (Bangladesh, Brazil, Burma, China, Ecuador, India, Iran, Kenya, Malaysia, Maldives, Mauritius, North Korea, Pakistan, Portugal, Thailand, Uruguay, and Venezuela) hold such reservations, which require foreign military activities to be “innocent” and “permissible.” But China has by far the most trouble with the United States over the military activities in its exclusive economic zones. China has long held that U.S. freedom of navigation operations and military reconnaissance activities along its zones are hostile acts, violating the UNCLOS, and should be halted. From China’s perspective, the United States claims to be ensuring that other countries are abiding by UNCLOS rules, but it constantly bends the rules in its favor to justify U.S. actions, even though the U.S. Senate has not ratified the UNCLOS itself. China blames this hypocrisy for propagating frustration and misunderstandings between the United States and China.

The United States, however, has repeatedly informed China that its reservations to UNCLOS are an exception rather than the rule, and America has no legal obligation to comply. As the then-commander of U.S. Pacific Command, Adm. Timothy Keating, put it during his official visit to China in 2008, “We don’t need China’s permission to go through the Taiwan Strait. It’s international waters. We will exercise our free right of passage whenever and wherever we choose, as we have done repeatedly in the past and we’ll do in the future.”

In addition, the United States has also suggested to China that, as its own interests expand globally, accepting the U.S. position would work out in its favor. The United States, as another  commander of the U.S. Pacific Command,  Adm. Samuel Locklear, noted, welcomes the Chinese Navy to sail in the international waters outside the 12-nautical-mile territorial zones off the U.S. coasts and conduct appropriate military activities.

U.S. warships have sailed through the Taiwan Strait from time to time. However, in the context of U.S.-China contentions, each such trip is a test of will and capability between the two nations, especially when an aircraft carrier battle group is involved. To avoid escalating tension and promote mutual understanding, a U.S. warship freedom of navigation operation in the Taiwan Strait, even with an aircraft carrier strike group, may be an ideal course of action to take.

Conducting such a manuever in the Taiwan Strait challenges China’s interpretation of the UNCLOS while avoiding a direct show of force. The United States should make clear to China that while there is no excessive maritime claim in the Taiwan Strait, foreign military activity in these specially zoned waters is an unnecessary point of contention, and a U.S. operation there is a professional way to settle this issue.

For better or worse, the United States has maintained the status quo in the Taiwan Strait for close to 70 years and prevented China from taking military action against Taiwan—although Chinese leaders have repeatedly said they will do so if peaceful means of reunification fails. That gives Taiwan the space to develop peacefully and democratically, and the United States the chance to maintain peace in the region.

China’s ambitious buildup of naval power is directed at eventually breaking this status quo. Conducting a U.S. freedom of navigation operation through the Taiwan Strait now and making it a regular operation in the future can offset tensions, reinforce the U.S. commitment to the current norms, and nurture a pattern of long-term peaceful military interaction between the United States and China.

The views expressed in this article are those of the authors but do not necessarily reflect the position of the U.S. Army War College, the Department of Defense, or the U.S. government.