7.2 The Chinese Approach
The Chinese approach of abundant caution towards innocent passage of warships in
territorial waters has been a subject of particular focus. China promulgated the
Declaration on China’s Territorial Sea on September 4, 1958 inter alia stating
that, [n]o foreign vessels for military use and no foreign aircraft may enter China’s
territorial sea and the air space above it without the permission of the Government of
the People’s Republic of China. The Declaration is further endorsed by the provisions in the Law on Maritime Traffic Safety, 1984 and the Law on the Territorial
Sea and Contiguous Zone (the Territorial Sea Law), 1992. Scholars suggest that
China’s stance may be attributed to sustained, rather unpleasant historical experiences. From the middle to late nineteenth century, China was faced with several
invasions from the sea by Western colonial powers owing to declining power of the
Quing dynasty. China had no respite from foreign maritime intrusions, especially by
American warships, even after the People’s Republic was founded. Besides, during
the Cold War in the fifties and sixties, all the socialist countries lead by the Soviet
Union required prior authorization for passage of foreign warships in their territorial
waters,
106 and China naturally followed suit. Regardless, it is perhaps incumbent
upon China to address the inconsistency of its domestic legislation, at least consequent to having ratified UNCLOS 1982 in 1996.
107
While the specifics of the breadth of practice of different States could be
discussed at length, the larger perspective to be understood here is that, there
would be a context to the attitude and stand adopted by each State, rooted in history
or geo-political situation, and that such practice would not be static but vary with
time and space. The negotiations during the Law of the Sea Conference are an
indicator of the dissent among nations on the subject, and given the fact that many
coastal States do not consider themselves bound by the provisions of innocent
passage when it comes to warships, even to this day, the matter remains far from
settled.
7.3 The Case of Finland
There is this unique, and apparently unparalleled case of Finnish warships not being
able to exercise the right of innocent passage in a portion of the territorial sea of their
106 It is another matter that the Soviet Union came together with its arch rival the United States to
issue the Joint Statement on Uniform Interpretation of Rules of International Law Governing
Innocent Passage on 23 September 1989 stating that all ships, including warships, regardless of
cargo, armament, or means of propulsion, enjoy the right of innocent passage through the territorial
sea in accordance with international law, for which neither prior notification nor authorization is
required (Zou 1998).
107 Zou (1998).
248
A. Hebbar
The Chinese approach of abundant caution towards innocent passage of warships in
territorial waters has been a subject of particular focus. China promulgated the
Declaration on China’s Territorial Sea on September 4, 1958 inter alia stating
that, [n]o foreign vessels for military use and no foreign aircraft may enter China’s
territorial sea and the air space above it without the permission of the Government of
the People’s Republic of China. The Declaration is further endorsed by the provisions in the Law on Maritime Traffic Safety, 1984 and the Law on the Territorial
Sea and Contiguous Zone (the Territorial Sea Law), 1992. Scholars suggest that
China’s stance may be attributed to sustained, rather unpleasant historical experiences. From the middle to late nineteenth century, China was faced with several
invasions from the sea by Western colonial powers owing to declining power of the
Quing dynasty. China had no respite from foreign maritime intrusions, especially by
American warships, even after the People’s Republic was founded. Besides, during
the Cold War in the fifties and sixties, all the socialist countries lead by the Soviet
Union required prior authorization for passage of foreign warships in their territorial
waters,
106 and China naturally followed suit. Regardless, it is perhaps incumbent
upon China to address the inconsistency of its domestic legislation, at least consequent to having ratified UNCLOS 1982 in 1996.
107
While the specifics of the breadth of practice of different States could be
discussed at length, the larger perspective to be understood here is that, there
would be a context to the attitude and stand adopted by each State, rooted in history
or geo-political situation, and that such practice would not be static but vary with
time and space. The negotiations during the Law of the Sea Conference are an
indicator of the dissent among nations on the subject, and given the fact that many
coastal States do not consider themselves bound by the provisions of innocent
passage when it comes to warships, even to this day, the matter remains far from
settled.
7.3 The Case of Finland
There is this unique, and apparently unparalleled case of Finnish warships not being
able to exercise the right of innocent passage in a portion of the territorial sea of their
106 It is another matter that the Soviet Union came together with its arch rival the United States to
issue the Joint Statement on Uniform Interpretation of Rules of International Law Governing
Innocent Passage on 23 September 1989 stating that all ships, including warships, regardless of
cargo, armament, or means of propulsion, enjoy the right of innocent passage through the territorial
sea in accordance with international law, for which neither prior notification nor authorization is
required (Zou 1998).
107 Zou (1998).
248
A. Hebbar