Navigation through the straits in East Asia
Keyuan Zou*
1. Introduction
There are many straits around the world providing sea lanes for global connectivity. Many straits exist in East Asia too and the famous ones include the Straits of Malacca and the Taiwan Strait.1 The basic legal regime governing the navigation through straits is centred on the 1982 United Nations Convention on the Law of the Sea (LOSC),2 which has created the transit passage for all ships and aircraft sailing through the straits used for international navigation. Transit passage means the exer- cise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone (EEZ) and another part of the high seas and an EEZ.3 However, if a strait used for international naviga- tion is a strait between a part of the high seas or an EEZ and the territorial sea of a coastal state, the regime of innocent passage provided in the LOSC should apply.4 That is why the transit passage regime is described as a regime between the freedom of navigation and innocent passage.5 This paper discusses four straits in East Asia, which carry some special
* Harris Professor of International Law, Lancashire Law School, University of Central Lancashire. 1 This paper will not deal with the Straits of Malacca as it is dealt with by another paper in this issue. 2 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397. 3 Art 38(2) of the LOSC. Text of the LOSC is available at
QIL, Zoom-in 76 (2020) 21-34
22 QIL 76 (2020) 21-34 ZOOM IN characteristics in international law in the context of the passage regime under the LOSC. They are Taiwan Strait, Korea Strait, Qiongzhou Strait, and Jeju Strait.
2. Straits passage regime
As we recall in the LOSC law-making process, the transit passage re- gime was a compromise between straits countries such as Indonesia and Malaysia and big maritime powers such as the United States and the then Soviet Union. A chapter contributed by David Caron succinctly reviewed the history of the formulation of the legal regime for straits used for in- ternational navigation through considerable debates even before the start of the United Nations Third Conference on the Law of the Sea (UNCLOS III).6 According to the LOSC, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its main- land, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an EEZ of similar convenience with respect to navigational and hydrographical characteristics. The re- quirement of continuous and expeditious transit does not preclude pas- sage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.7 On the other hand, according to Article 38 of the LOSC, when ships and aircraft enjoy their right of transit passage, they should
‘(a) proceed without delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (c) refrain from any activities other than those incident to their normal modes of continuous and expedi- tious transit unless rendered necessary by force majeure or by distress; and (d) comply with other relevant provisions of this Part.
6 See DD Caron, ‘The Great Straits Debate: The Conflict, Debate, and Compromise That Shaped the Straits Articles of the 1982 United Nations Convention on the Law of the Sea’ in DD Caron and N Oral (eds), Navigating Straits: Challenges for International Law (Brill 2014) 11-32. 7 Art 38 of the LOSC.
Navigation through the straits in East Asia 23
2. Ships in transit passage shall: (a) comply with generally accepted in- ternational regulations, procedures and practices for safety at sea, in- cluding the International Regulations for Preventing Collisions at Sea; (b) comply with generally accepted international regulations, proce- dures and practices for the prevention, reduction and control of pollu- tion from ships. 3. Aircraft in transit passage shall: (a) observe the Rules of the Air estab- lished by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation; (b) at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency’.8
States bordering straits may designate sea lanes and prescribe traffic separation schemes for navigation in straits where necessary to promote the safe passage of ships. Such States may, when circumstances require, and after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previ- ously designated or prescribed by them. Such sea lanes and traffic sepa- ration schemes shall conform to generally accepted international regula- tions. Ships in transit passage shall respect applicable sea lanes and traffic separation schemes.9 According to Article 42,
‘[…] States bordering straits may adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic, as pro- vided in Article 41; (b) the prevention, reduction and control of pollu- tion, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait; (c) with respect to fishing vessels, the prevention of fishing, in- cluding the stowage of fishing gear; (d) the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits. […] 3. States bordering straits shall give due publicity to all such laws and regulations.
8 Art 39 of the LOSC. 9 Art 41 of the LOSC.
24 QIL 76 (2020) 21-34 ZOOM IN
4. Foreign ships exercising the right of transit passage shall comply with such laws and regulations’.10
However, ‘States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or over- flight within or over the strait of which they have knowledge. There shall be no suspension of transit passage’.11 Article 45 determines that the regime of innocent passage
‘[…] shall apply in straits used for international navigation: (a) excluded from the application of the regime of transit passage under Article 38(1); or (b) between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State’.12
In addition, Article 34 of the LOSC also provides that
‘1. the regime of passage through straits used for international naviga- tion shall not in other respects affect the legal status of the waters form- ing such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil. 2. The sovereignty or jurisdiction of the States bordering the straits is exercised subject to the Convention and to other rules of international law’.13
3. Navigation in the Taiwan Strait and Korea Strait
The Taiwan Strait is located between Taiwan and the Fujian (Fukien) Province of China and constitutes a critical corridor connecting the East China Sea to the South China Sea. Actually, the Strait itself is regarded as part of the East China Sea.14 The breadth of the northern end is about
10 Art 42 of the LOSC. 11 Art 44 of the LOSC. 12 Art 45 of the LOSC. 13 Art 34 of the LOSC. 14 Z Zhaobing, ‘Taiwan Strait’ in Encyclopedia of China: Chinese Geography (in Chi- nese) (Encyclopedia of China Press 1993) 469. It is noted that ‘the most important strait’ in the East China Sea is ‘the Formosa Strait’: see RW Fairbridge, ‘East China Sea’ in RW
Navigation through the straits in East Asia 25
93 nautical miles and that of the southernmost end 116 nautical miles. It is more than 170 nautical miles long and about 60 metres in average depth.15 The Strait is within the continental shallow sea and three-quar- ters of its water is less than 60 metres in depth. The Taiwan Strait is tra- ditionally used as an important navigational waterway both for China and for the rest of the world. For China, it is a critical sea route from north to south between the East China Sea and the South China Sea, and also between Taiwan and Fujian Provinces.16 With the development of the law of the sea, the Taiwan Strait is a key concern both for Mainland China and Taiwan, in particular after the en- try into force of the LOSC. Mainland China ratified the LOSC in 1996.17 Although Taiwan is not a party to the LOSC because of its peculiar status in the international community, it declared that it would follow the new legal rules embodied in the LOSC to exercise maritime jurisdiction and manage maritime affairs, which can be illustrated respectively by its laws on the territorial sea and on the exclusive economic zone (EEZ) promul- gated in 1998.18 The Taiwan Strait is generally classified as an international strait in international law, which is defined as ‘a contraction of the sea between two territories, being of a certain limited width and connecting two seas otherwise separating at least in that particular place by the territories in question’.19 However, after the adoption of the LOSC, the international law governing international straits became more complicated,20 thus af- fecting the free navigation of foreign vessels through the Taiwan Strait.
Fairbridge (ed) The Encyclopedia of Oceanography (Van Nostrand Reinhold Company 1966) 239. 15 Committee of the China Natural Resources Series, China Natural Resources Series: Ocean (China Environmental Science Press 1995) (in Chinese) 45. 16 ibid. 17 See People’s Daily (in Chinese) (16 May 1996). 18 The Law on the Territorial Sea and the Contiguous Zone, and Law on the Exclu- sive Economic Zone and the Continental Shelf, both promulgated on 21 January 1998 of which the English versions may be found in Office of Oceans Affairs Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State, Limits in the Seas (no.127): Taiwan’s Maritime Claims (15 November 2005) 20-24, 26-33
26 QIL 76 (2020) 21-34 ZOOM IN
In addition, the definition of international straits became narrower and divided: narrower because, under the LOSC, the definition of straits used for international navigation only refers to those straits within the territo- rial seas of the coastal states; divided because, after the LOSC, it seems that there are two definitions for international straits: one is the strait used for international navigation, and the other is the remaining kind of strait.21 The LOSC defines the ‘strait used for international navigation’ as a strait connecting one part of the high seas or an EEZ with another part of the high seas or an EEZ.22 There are two criteria: one geographical and one functional. The geographical criterion is that the strait connects one part of the high seas or an EEZ with another part of the high seas or an EEZ; and the functional one is that the strait is used for international navigation.23 The geographical features of the Taiwan Strait indicate that it is not a strait fully within the territorial seas of the coastal states. Under such geographical circumstances, the LOSC expressly provides that the re- gime governing the straits used for international navigation should not apply to such straits as the Taiwan Strait:
‘Nothing in this Part affects: (a) any areas of internal waters within a strait, except where the establishment of a straight baseline in accord- ance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such; (b) the legal status of the waters beyond the territorial seas of states bor- dering straits as exclusive economic zones or high seas; or (c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits’.24
suspendable innocent passage. Convention on the Territorial Sea and the Contiguous Zone (adopted 29 April 1958, entered into force 10 September 1964) 516 UNTS 205. 21 Z Keyuan, ‘Redefining the Legal Status of the Taiwan Strait’ (2000) 15 Intl J Ma- rine and Coastal L 250. 22 Art 37 of the LOSC. 23 See SN Nandan, S Rosenne (eds), United Nations Convention on the Law of the Sea 1982: A Commentary vol II (Martinus Nijhoff 1993) 317. 24 Art 35 of the LOSC.
Navigation through the straits in East Asia 27
The Taiwan Strait is thus within the second category according to the above stipulations. Accordingly, foreign ships can enjoy the right of in- nocent passage in the territorial sea and the freedom of navigation in the EEZ within the Taiwan Strait. However, the Taiwanese Law on the Ter- ritorial Sea provides that
‘[i]n the part of the Taiwan Straits not part of the territorial sea of the Republic of China used for international navigation, the Government of the Republic of China may enact laws and regulations relating to the transit passage of foreign vessels and aircraft, in respect of any or all of the following: 22. The maintenance of navigation safety and the regula- tion of maritime traffic; 23. The prevention, reduction and control of pollution of the environment; 24. The prohibition of fishing; 25. The prevention and punishment of loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of the Republic of China’.25
While there is little controversy in regard to the navigational rights of foreign ships through China’s EEZ, the right of innocent passage of for- eign military vessels through China’s territorial sea still remains an issue in practice. The 1992 Law on the Territorial Sea and the Contiguous Zone of China stipulates that non-military foreign vessels can enjoy the right of innocent passage through the Chinese territorial sea, while the passage of foreign military vessels through China’s territorial sea is sub- ject to the prior approval of the Chinese authorities.26 As for Taiwan, its 1998 Law on the Territorial Sea and Contiguous Zone provides for a prior notification procedure.27 The Korea Strait (also known as Tsushima Strait) is located between South Korea and Japan, consisting of the Eastern Channel, situated be- tween the Japanese mainland of Honsu and Kyushu in the east and the Japanese islands of Tsushima in the west, and the Western Channel, sit- uated between Tsushima in the east and the south-eastern coast of the Korean Peninsula in the west. The two waterways of less than 100 nauti- cal miles total width connect the Sea of Japan to the north-east with the
25 Art 13 of that Law. 26 Art 6 of that Law. English text is available at
28 QIL 76 (2020) 21-34 ZOOM IN
East China Sea to the south-east.28 The Korea Strait has been an interna- tional strait for a long time and all foreign vessels have the right to pass through the strait freely. The principal users of the Strait include Korea, Japan, Russia, China, and the United States.29 When the LOSC came into being, both South Korea and Japan have the right to apply the transit passage regime to the Korea Strait. However, the two countries rather preferred to limit their respective territorial seas to 3 nautical miles in- stead of 12 nautical miles in the straits area,30 so that a high seas corridor was set up between them for international navigation to specifically avoid the application of the transit passage regime. They have continued this practice since they ratified the LOSC and promulgated new laws on the territorial sea.31 For Japan, there were two reasons behind the adoption of such a measure: (1) it was considered preferable to wait and see whether the new regime of international strait would be firmly fixed or not; and (2) under the ‘Three Principles of Denuclearization’, ie, non- production, non-possession, and non-permission (of entry) of nuclear weapons in Japan (including its territorial waters), Japan had to leave part of the high seas in order to prevent foreign warships carrying nuclear weapons from entering its territorial waters.32 It is noted that after the amendment of the Territorial Sea Law in 1996, Japan still maintains the same position. As for South Korea, when it amended its Territorial Sea and Contiguous Zone Act in 1995, it decided to maintain the 3-nm limit for its territorial sea in the Korea Strait for the reasons that the narrow part of the western channel is only 23.2 nm across and if both South Ko- rea and Japan extend their territorial seas to 12-nm, then there would be
28 C Park, ‘The Korea Strait’ in JM Van Dyke, LM Alexander, JR Morgan (eds), In- ternational Navigation: Rocks and Shoals Ahead? (Law of the Sea Institute, University of Hawaii 1988) 173. For geographical details, see CY Pak, The Korean Straits (Martinus Nijhoff 1988) 1-14. 29 L Paul, ‘A Vessel Traffic System Analysis for the Korea/Tsushima Strait’ (8 De- cember 1997)
Navigation through the straits in East Asia 29 an overlap between the two; South Korea, as a maritime State, supported the maximum freedom of navigation in straits used for international nav- igation.33 Thus the Korea Strait will cause no problem as an international strait with free navigation as long as South Korea and Japan continue to limit their territorial seas in the Strait area to 3 nautical miles. This exam- ple shows that in some circumstances coastal states may restrain their ex- ercise of jurisdiction and even limit the sovereign rights to which they are entitled, for the benefit of international navigation. As reported, there is no active vessel traffic control system in the high seas portion of the Korea Strait.34 The Japan Maritime Safety Agency is the government agency primarily responsible for coastal and offshore maritime safety and maintains a computerized Maritime Safety Infor- mation System, including a ship reporting system.35
4. Navigation through Qiongzhou Strait and Jeju Strait
In addition to the Taiwan Strait, the other major strait in China is the Qiongzhou Strait (Chiungchow Strait) which is situated between Hainan Island and the Leizhou Peninsula. It is about 50 miles long and from 9.8 to 19 miles wide.36 In 1958, China promulgated the Declaration on the Territorial Sea, which expressly declared that the Qiongzhou Strait was a Chinese internal strait.37 According to a Chinese legal authority, the rea- sons behind this statement were that the Qiongzhou Strait:
‘is an important sea route linking the mainland with the Hainan Island and a convenient navigation route between our country and Southeast Asian countries. It has an extremely important meaning for our econ- omy and national defense. Historically, it has always been subject to our sovereign jurisdiction and has constituted an inalienable, composite part
33 See PH Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation (Kluwer Law International 2000) 31-32. 34 Paul (n 29). 35 ibid. 36 C Tao, ‘Communist China and the Law of the Sea’ (1969) 63 AJIL 61. 37 See the ‘Declaration of the Government of the People’s Republic of China on China’s Territorial Sea’, in Office of Laws and Regulations, Department of Ocean Man- agement and Monitoring, State Oceanic Administration (ed), Collection of the Sea Laws and Regulations of the People’s Republic of China (Ocean Press 1991) 3.
30 QIL 76 (2020) 21-34 ZOOM IN
of our territory. Since liberation [in 1949] our country has always ad- ministered it as an internal strait. The present Declaration is merely to reaffirm once more a historical fact.’38
For administrative purposes, China promulgated the Regulations Concerning the Passage of Foreign Non-Military Vessels Through the Qiongzhou Strait in 1964. According to these Regulations, warships are not allowed to navigate through the Qiongzhou Strait, while non-military vessels may pass through it subject to strict regulations. When any mer- chant vessel intends to make a passage through the Qiongzhou Strait, it must apply to the Qiongzhou Strait Authority 48 hours before the vessel enters the Strait, or before the vessel leaves port, with detailed infor- mation on the name, nationality, tonnage, speed, colour of hull, funnel marking, port of departure, time of departure and destination.39 The ves- sel, after having obtained permission, must inform the Authority of the exact time of entering the Strait 24 hours before its entry. 40 The Qiongzhou Strait Authority may, when it deems necessary, close the Strait.41 The speed of the vessel shall be less than 10 knots.42 The vessel should pass through the central channel in the Strait and should not use radar, unless it is specially permitted to do so by the Authority. The above regulations are very stringent in terms of the passage of foreign vessels through the Qiongzhou Strait. Some countries, particularly the United States, protested at the promulgation of these regulations.43 However, the international law of the sea only governs innocent passage in the territo- rial sea and transit passage for the straits used for international navigation and it leaves the power to regulate the passage in internal straits to coastal states.
38 F Zhu, ‘Concerning of Our Country's Territorial Sea’ (Beijing 1959), reprinted in JA Cohen, H Chiu, People's China and International Law vol 1 (Princeton UP 1974) 486. 39 Office of Laws and Regulations (n 37) 60. 40 Art 4(2) ibid. 41 Art 5 ibid. 42 Art 6 ibid. The first version of this Article is much stricter: the passage of the Strait must be made in the daytime. The Qiongzhou Authority shall decide the specific hours of entrance and exit for non-military foreign vessels that apply for passage, based upon the speed of the vessel. 43 Even not long ago, the United States continued to regard the Qiongzhou Strait as ‘an international strait’: see Bureau of Oceans and International Environmental and Sci- entific Affairs, United States Department of State, Straight Baseline Claim: China (Limits in the Seas No 117, 9 July 1996) 8.
Navigation through the straits in East Asia 31
The Jeju Strait (Cheju Strait）is a strait situated between the south- ern mainland of Korea and Jeju Island. The distance from the northern- most point of Jeju Island at 34° N (Chuja-myunDaeseo-ri) to Haenam of Jeolla-namdo is 47 nm (87 km), and to Mokpo is 76.5 nm (141.6 km) and from Jeju’s main island to its Isle of Chuja is 25 nm (48 km).44 There are many small islets scattered throughout the Jeju Strait with depth averages around 70m with its deepest point at 140m. With straight baselines con- necting the surrounding islands of Geomundo, Yeoseodo, Jangsoodo, Jeolmyungseodo, and Soheuksando as the base point, the waters towards the mainland constitute internal waters, while the waters towards Jeju Is- land constitute the territorial sea.45 The South Korean navy had military regulations mandating expulsion of North Korean ships that entered the Jeju Strait, even if they were ci- vilian vessels.46 There was such an incident in June 2001. At the 15th Min- isterial Meeting between North and South Koreas in June 2005, it was agreed that civilian vessels of the North could pass through the Jeju Strait.47 After the Corvette Cheonan on 26 March 2010, South Korea pro- hibited the entry of North Korean vessels into South Korean territorial and adjacent waters again.48 Article 6 of the South Korean amended Ter- ritorial Sea and Contiguous Zone Act in 2017 provides that
‘[i]f a foreign ship (excluding foreign warships and government ships operated for non-commercial purposes) is suspected of having violated the provisions of Article 5, the authorities concerned may issue neces- sary orders or take other necessary measures, such as stopping, search or seizure’.49
The commonality between the Qiongzhou Strait and the Jeju Strait is that both straits are separate between the mainland and a big island as the
44 B Kim, S Lee, ‘Protection of the Sea Lanes in the Jeju Waters and Maritime Coop- eration in Northeast Asia’, in DD Caron, N Oral (eds), Navigating Straits: Challenges for International Law (Brill 2014) at 158. 45 ibid. 46 S Kong, ‘The Right of Innocent Passage: A Case Study on Two Koreas’ (2002) 11Minnesota J of Global Trade 385. 47 Kim, Lee (n 44) 166. 48 ibid 167. 49 Art 6 of that Law. Text is available at
32 QIL 76 (2020) 21-34 ZOOM IN
LOSC Article 38(1) exception. However, they may have different legal sta- tus: while the former is an internal strait, the latter is a strait used for inter- national navigation. It is noted that some Korean scholars have argued Ar- ticle 38(1) exception for the Jeju Strait, but Japan argues that the route around Jeju Island is not ‘of similar convenience’ and thus challenges this claim.50 Nevertheless, South Korea applies non-suspendable innocent pas- sage for foreign vessels sailing through the Jeju Strait. Article 5(1) of Ko- rea’s Territorial Sea Laws requires foreign military vessels or government vessels of non-commercial purposes seeking to pass through its territorial waters, to give prior notice to the proper authorities in accordance with a Presidential Decree. Article 4 of the Enforcement Decree further provides that pursuant to Article 5(1), prior notice must be given to the Minister of Foreign Affairs and Trade three business days prior to its passage.51 In comparison, the Jeju Strait is more significant than the Qiongzhou Strait as it can geographically be regarded as an extension of the Western Chan- nel of the Korean Strait connecting the Sea of Japan and the East China Sea, with a much more frequent use by foreign vessels.
5. Final remarks
From the above, we can see that although the LOSC has established the regime of transit passage for straits used for international navigation, this regime is not really applicable to the above four straits in East Asia due to the reasons based on either geography or national policy consid- erations. The Taiwan Strait is not within the category of ‘straits used for international navigation’ as defined by the LOSC, and the Korea Strait is within such a category, but the littoral States have exercised their self- restraint not to extend their territorial seas to 12 nm, thus leaving a high seas corridor in their respective EEZs for foreign ships and aircraft en- joying the freedom of navigation. While the Qiongzhou Strait is treated
50 See JM Van Dyke, ‘Rights and Responsibilities of Strait States’ in DD Caron and N Oral (eds), Navigating Straits: Challenges for International Law (Brill 2014) at 34. Ac- cording to Kim and Lee, though the Jeju Strait is a strait used for international navigation under the LOSC, there is ’a route through the high seas or through an EEZ of similar convenience’ so that the transit passage would not be applicable to the Jeju Strait. Kim, Lee (n 44) 163. 51 Kim, Lee (n 44) 164.
Navigation through the straits in East Asia 33 by China as its internal strait not subject to the passage regime set forth by the LOSC, the Jeju Strait is a strait used for international navigation, but South Korea adopts the non-suspendable innocent passage for for- eign vessels as provided for by the LOSC. A unique arrangement for the navigation of foreign vessels through the Jeju Strait is its limited opening to the North Korean merchant vessels while a complete ban on the lat- ter’s military vessels is enforced by South Korea. This kind of differenti- ated treatment may raise the concern on whether it is in conformity with the relevant provisions of the LOSC. On the other hand, however, it is difficult for North Korea to lodge a complaint as it is not yet a party to the LOSC. This arrangement also reminds us of the strict regulations ap- plicable to the Qiongzhou Strait where the entry of foreign military ves- sels is also prohibited. While China and South Korea do not apply the transit passage to their respective straits, they have different positions in regard to innocent passage for foreign warships. China requires prior authorization for the passage of foreign warships through its territorial sea while South Korea requests prior notification. However, either prior permission or notifica- tion is an additional condition which may contravene the relevant provi- sions of the LOSC. A Korean scholar argues that South Korea is still technically at war with North Korea and the right of innocent passage for foreign warships may be limited in time of war or in a state of belligerency so that the prior notification requirement may be justified by its special security circumstances.52 In this regard, it is worth mentioning that Main- land China and Taiwan are also technically at civil war since 1946 without a peace agreement, or even an armistice agreement (as it existed between South and North Koreas) between the two sides across the Taiwan Strait. As for the Taiwan Strait, since the pro-independence party DPP came to power in 2016, the relationship between Mainland China and Taiwan has been ever deteriorating. In the past there was a tacit median line of jurisdiction between the two sides in the Taiwan Strait. But in September 2020 the Chinese government publicly announced that no such line had ever existed in the Taiwan Strait.53 This means Mainland
52 Kwon (n 33) 34. 53 Foreign Ministry Spokesperson Wang Wenbin’s Regular Press Conference on Sep- tember 21, 2020
34 QIL 76 (2020) 21-34 ZOOM IN
China may cross the median line anytime at will. With the increasing ten- sions between the two sides, people may worry about whether there would be a naval blockade to be taken by Mainland China in the Taiwan Strait as Israel did in the Gaza Flotilla incident in 2010.54 It is obvious that the escalating hostilities between the two sides will no doubt affect the smooth navigation of foreign ships through the Taiwan Strait. The international community faces challenges to maritime navigation through international straits. It appears that there is an increasing trend of creeping jurisdiction excised by coastal States bordering the straits concerned by introducing further tightening measures. For maritime se- curity or environmental reasons, some countries may limit the passage of foreign vessels through the straits within their national jurisdiction. For example, the Australian government introduced compulsory pilotage into the Torres Strait, but received protests from other countries such as Singapore and the United States.55 It is yet unknown whether the coastal States bordering the straits discussed above would take similar measures or even tougher ones in the consideration of national security and/or ma- rine environmental protection. In addition, as indicated by at least Japan that the self-restraint measure in the Korea Strait is only ‘for the time being’,56 there is always a possibility to change in future, thus affecting the navigation of foreign vessels in that Strait.
54 For detailed discussion about this incident in the context of the law of the sea, see N Oral, ‘Law of the Sea, Naval Blockades and the Freedom of Navigation in the After- math of Gaza Flotilla Incident of 31 May 2010’ in L del Castillo (ed), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos (Brill/Nijhoff 2015) 356-376. 55 D Rothwell, ‘International Straits’ in D Rothwelland others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 130. 56 T Takata, ‘The Conclusion by Japan of the United Nations Convention on the Law of the Sea (UNCLOS) and the Adjustment of Maritime Legal Regime’ (1996) 39 Japanese Annual of Intl L132.