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Post-Pelosi puzzle: When is a ‘blockade’ not a blockade?

2022-08-30 23:10:18       source:Asia Times

August 8, 2022

US-China relations are now the worst since then-president Richard Nixon opened modern relations in 1972.


At the June Shangri-La Dialogue, Chinese Defense Minister General Wei Fenghe warned US Secretary of Defense Lloyd Austin, “If you want confrontation, we will fight to the very end.”


The visit to Taiwan last week by Nancy Pelosi, Speaker of the US House of Representatives, and China’s response have brought the two closer to confrontation and exposed many legal and political uncertainties.


In response to Pelosi’s visit, China declared six warning zones on all sides of Taiwan and undertook simultaneous live-fire exercises in them, including the firing of missiles from the mainland. Taiwan has alleged that this was a “blockade” and that the exercises are a “challenge to the international order.” China says they were necessary to “defend its national sovereignty and territorial integrity.”


A blockade is an officially declared act of war whereby one party blocks entry to or departure from a defined part of another’s territory. China’s declaration of warning zones and the exercises and firing of missiles that landed therein did disrupt flight and shipping traffic and schedules to and from Taiwan.


According to Taiwan’s Ministry of Transportation and Communications, an agreement was reached with Japan and the Philippines to reroute 18 international flight paths departing from the island affecting about 300 flights, and Korean Air canceled flights from Incheon to Taiwan for two days.


A Chinese analyst, Major-General Meng Xiangqing, said the six areas were chosen to demonstrate China’s ability to “seal off Taiwan and repel foreign intervention.” And the People’s Liberation Army Eastern Theater Command said a simulated “joint blockade” was included among the training exercises.


So a temporary partial indirect “blockade” was the practical effect of China’s declared warning zones and exercises. But technically China has not declared a blockade. Indeed, it insisted that the drills did not deny freedom of navigation. It only issued warnings. Air and sea traffic could enter the zones at their own risk. Whatever the temporary impact of the warning zones and exercises, they are probably not a casus belli by themselves.


However, some of China’s actions may be taken as such by Taipei. It was reported that some of China’s missiles flew over Taiwan’s territory for the first time. Foreign aircraft and especially armed missiles cannot lawfully overfly a nation’s territory without permission.


The conventional missiles flew “above the atmosphere” on a trajectory to land in waters east of Taiwan and thus according to Taiwan’s Defense Ministry posed no risk to it or its people. However, most countries would consider such an act a grave provocation requiring a response such as shooting down the missiles. Taiwan, undoubtedly at US urging, has so far shown great restraint in the face of such provocations.


But this brings up the issue of Taiwan’s status. The planned military exercises violated Taiwan’s claimed sovereignty, because parts of the designated warning areas extended to its claimed internal and territorial waters.


Taiwan’s position is that it is an independent sovereign state. It says Beijing is violating international law, including the United Nations Convention on the Law of the Sea (UNCLOS). But Taiwan is not recognized as an independent country by a vast majority of the world, including the US. Moreover, it is not a member of the United Nations or a party to UNCLOS.  


There is also the question of the legitimacy of its claims to internal and territorial waters that may have been violated by China. According to the US State Department, its claims to internal and territorial waters in the areas to the north and southwest of the island are based on illegal baselines.   


For example, in the extreme north they enclose a small rock and a small island situated 23 and 33 nautical miles respectively off its north coast. These two features are too small and too dispersed to fit definition of the “fringe of islands” required by UNCLOS to draw such baselines.


They are also too far from its coast to satisfy the UNCLOS requirement of being “sufficiently closely linked to the land domain.” They should not be included in Taiwan’s baselines. Thus China is probably not violating Taiwan’s legal internal and territorial waters in this area.


This of course assumes that Taiwan is even entitled to such claims as an independent country. Beijing’s position is that Taiwan is a part of China and therefore it is conducting the exercises in its own exclusive economic zone, territorial seas and internal waters.


As for China’s “violations” of the median line in the Taiwan Strait, China has never recognized it as an official “no-cross” line. This is a unilateral Taiwan/US invention and interpretation.


As for China’s “violations” of Taiwan’s air defense identification zone (ADIZ), this is also complicated. An ADIZ is a designated area of airspace in which a country requires the immediate and positive identification, location and traffic control of aircraft for national security reasons. They are unilaterally declared and not recognized by any treaty or international body.


Although the US helped create Taiwan’s ADIZ after World War II, it does not recognize the requirements of others’ ADIZs, such as that of China in the East China Sea.


Despite the legal complexities, the political message was clear. The actions were a warning that China could encircle and attack Taiwan and implement an indirect blockade using naval, air-force and rocket-force assets for an indefinite period. They also demonstrated China’s ability to disrupt maritime and air traffic in the Taiwan Strait and Luzon Strait as well as in the eastern approaches to Taiwan.


This could become less of a military operation and more “lawfare” justifying an indirect blockade for a duration to be determined unilaterally by Beijing. China’s strategy seems to be to intimidate and coerce without presenting a clear casus belli.


The situation also was a training and intelligence bonanza for all parties. In this sense, all benefited.  


These are some of the legal and political complexities generated by the situation. In particular, it appears that all concerned – but particularly Taiwan and the US – are keeping their powder dry and avoiding any unnecessary clashes. But that may not be the case indefinitely – or next time.


Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China.