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 <www.un.org/Depts/los/ convention_agreements/texts/unclos/closindx.htm>. 4 See Art 45 of the LOSC. 5 EJ Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (Kluwer 1998) 287. 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.