US only has itself to blame for dangerous incidents in Taiwan Strait, South China Sea

Military incidents do not stem from misunderstandings and miscommunications, but are rooted in deeper differences regarding the international order and strategic interests
The US may be abusing its rights under international law, creating rights where none exist and flagrantly challenging China’s core interests

Mark J. Valencia

Published: 1:00am, 25 Jun 2023

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A major purpose of US Secretary of State Antony Blinken’s visit to China was, in his words, to re-establish communications to reduce “misunderstandings and miscommunications”, to prevent or manage incidents between the two militaries. The near collision of Chinese and US warships in the Taiwan Strait earlier this month is a prime example.

However, Blinken did not manage to re-establish the most crucial link – military-to-military communications. Moreover, even if better military-to-military communications are reestablished, dangerous incidents will still occur. This is because they do not stem from misunderstandings and miscommunications, but are rooted in deeper differences regarding the international order and strategic interests.

The two powers are locked in an intensifying struggle for political and military dominance in the region and beyond. The June 3 incident resulted from a clash between the US demonstration of its theoretical right under international law versus China’s perceived right to protect its security.

Put another way, this incident and others like it have resulted from a conflict between the use of a “right” to gain an advantage over a potential enemy versus a country’s right to defend itself.

The incident highlighted each side’s position and willingness to back it up with force. The Chinese destroyer changed course and signalled to the US warship that it should move or there would be a collision. A US statement described the Chinese warship’s manoeuvre as illegal, unprofessional and unsafe.

National Security Council spokesman John Kirby said the close encounter is “part and parcel of an increasing level of aggressiveness” by China’s military. In response, Defence Minister Li Shangfu said that “we must prevent attempts that try to use those freedom of navigation, that innocent passage, to exercise hegemony of navigation”.

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Chinese fighter jet almost collides with US military plane over South China Sea

Consider Washington’s reaction if China were to undertake such activities in US waters. While it may not object legally, given the strained relations it would surely be seen as an unfriendly act. The US would be likely to monitor the activities closely.

As Kirby also said, “air and maritime intercepts happen all the time”. The difference, according to Kirby, is “when we do it, when we feel like we need to do it, it’s done professionally, and it’s done in accordance with the rules of the road”. So this is a matter of interpretation of “professionally”, the relevant international law and the “rules of the road”.

Washington and Beijing have long sparred over US maritime and air probes aimed at China. The June incident came on the heels of what the US called an unsafe and unprofessional intercept of one of its intelligence collection planes over the South China Sea.

The US calls the Taiwan Strait “an international waterway, meaning that the Taiwan Strait is an area where high seas freedoms, including freedom of navigation and over flight, are guaranteed under international law”. But the term “international waters” does not appear in the foundation of the international order in the oceans, the UN Convention on the Law of the Sea (UNCLOS). Rather, it is an invention of the US Navy to suggest there are waters in which they have “freedom of navigation”.

There are also no legal high seas in the Taiwan Strait. There are territorial seas and contiguous zones. Beyond the territorial sea is an exclusive economic zone in which the coastal state has sovereignty over the resources therein and a responsibility to protect the environment.

The issue for the US is whether its vessels have the right of passage. That depends on what US warships and warplanes are doing during that passage. Under UNCLOS, they must pay due regard to the rights and duties of the coastal state.

For example, if a warship or warplane is undertaking cyber or electronic exercises, this could be viewed as a threat or use of force. Particularly relevant is active signals intelligence collection conducted from aircraft and ships. Still others could interfere with communication and computer systems. China’s position is that such activities are not consonant with the due regard and peaceful purposes provisions of UNCLOS.

Marine scientific research in another country’s exclusive economic zone is subject to the prior consent of the coastal state. If a US warship or warplane is deploying information collection devices, they could be subject to this prior consent regime.

The dispute also raises the issue of the status of Taiwan. If Taiwan is part of China, then the entire strait is under Beijing’s jurisdiction. The US “one China” policy recognises the mainland government as the sole legal government of China, but it only acknowledges, rather than endorses, the mainland’s position that Taiwan is part of China.

If the act of US ships passing through the strait is meant to imply that Taiwan has separate jurisdiction and regimes governing its claimed portion of the strait, this challenges Beijing’s sovereignty claim to Taiwan.

US warships and warplanes would have the theoretical right to pass through the Taiwan Strait even after Taiwan reunification, provided they paid due regard to China’s rights. Otherwise, they could be seen to be abusing a right for purposes other than that for which it is intended.

But just because the US theoretically can, does not mean it should. This is a political question, not a legal one. The US knows these probes and passages anger China. It should expect an angry response, especially given China’s view that the US is not paying due regard to its rights.

The US has repeatedly demonstrated the right for its warships to pass through the Taiwan Strait. This amply protects its legal right to do so. It needs to consider when enough is enough, though, and whether it wants to risk a dangerous clash to keep demonstrating this right.

Mark J. Valencia is a non-resident senior research fellow at the Huayang Institute for Maritime Cooperation and Ocean Governance