5 A Chinese Perspective on the Innocent Passage of Warships …
89
on 30 September 2018 clearly illustrates this point. It is reported that during the
“unauthorized passage” of USS Decatur around the vicinity of Gaven Reef, a Chinese
destroyer “approached USS Decatur in an unsafe and unprofessional maneuver”
which forced the US destroyer to “maneuver to prevent a collision”.
39 This incident
is reminiscent of the 1988 “Black Sea Bumping Incident”,
40 though in the recent
incident, the “bumping” did not happen. It was 45 yards short of the “bumping”
between the Chinese destroyer and the US destroyer.
In the present author’s point of view, the “classic” Chinese response to the US
warship’s “unauthorized passage” may not be convincing or effective. The reasons
are elaborated as follows.
First of all, nowhere in the UNCLOS specifies that the coastal State is eligible
to adopt domestic laws and regulations to restrict the innocent passage of foreign
warships in its territorial sea.
41 Article 21 of the UNCLOS does list several matters
fall into the category which is subjected to the laws and regulations of the coastal
State relating to innocent passage, but none is related to “prior authorization”. To
accuse that the US warship’s “unauthorized passage” violates rules of international
law may not be well-grounded.
Secondly, if might be true that the US FON operations are politically motivated
and intentionally provocative. Nevertheless, it is worth noting that the US FON
operations also challenge Vietnam’s “prior notification” requirement in its domestic
law, in Fiscal Years 2013, 2015, 2016, 2017 and 2018,
42 and several years before
when Vietnam still had the “prior authorization” requirement. Indeed, in the fiscal
year of 2018, the US also challenged many other States as well, such as Albania,
Croatia, Egypt, etc.
43 It can be argued that the US is somehow unbiased in this kind
of challenge, so the political factor and implication of the “unauthorized passage”
of US warships in the Chinese territorial sea may not be as strong as the Chinese
government feels.
Moreover, China accuses that the passage of the US warships is highly threatening
to the sovereignty and security in the islands in the South China Sea. However,
except the recent “near-bumping” incident between the Chinese and US destroyers,
no serious incidents has ever happened, and there has not been a single Chinese
casualty over the past several years.
Finally, by asserting “take any necessary measures”, the potential escalation of
confrontation between China and the US in the South China Sea is looming, which
39 B Starr, R. Browne and B. Lendon, “Chinese warship in ’unsafe’ encounter with US destroyer,
amid rising US-China tensions”, 2 October 2018, CNN News, available at https://edition.cnn.com/
2018/10/01/politics/china-us-warship-unsafe-encounter/index.html. Accessed 4 October 2018.
40 Kraska and Pedrozo, The Free Sea: The American Fight for Freedom of Navigation, pp. 234–236.
41 Anh Duc Ton, a Commander and lecturer at the Vietnamese Naval Academy, support this assertion.
Anh Duc Ton, Innocent Passage of Warships: International Law and the Practice of East Asian
Littoral States, 1 (2016) Asia-Pacific Journal of Ocean Law and Policy, p. 212.
42 Based on US Department of Defense Annual FON operations Reports from these fiscal years.
Available at: https://policy.defense.gov/OUSDP-Offices/FON/. Accessed 4 June 2019.
43 Annal Freedom of Navigation Report 2018, available at https://policy.defense.gov/OUSDP-Off
ices/FON/ .
89
on 30 September 2018 clearly illustrates this point. It is reported that during the
“unauthorized passage” of USS Decatur around the vicinity of Gaven Reef, a Chinese
destroyer “approached USS Decatur in an unsafe and unprofessional maneuver”
which forced the US destroyer to “maneuver to prevent a collision”.
39 This incident
is reminiscent of the 1988 “Black Sea Bumping Incident”,
40 though in the recent
incident, the “bumping” did not happen. It was 45 yards short of the “bumping”
between the Chinese destroyer and the US destroyer.
In the present author’s point of view, the “classic” Chinese response to the US
warship’s “unauthorized passage” may not be convincing or effective. The reasons
are elaborated as follows.
First of all, nowhere in the UNCLOS specifies that the coastal State is eligible
to adopt domestic laws and regulations to restrict the innocent passage of foreign
warships in its territorial sea.
41 Article 21 of the UNCLOS does list several matters
fall into the category which is subjected to the laws and regulations of the coastal
State relating to innocent passage, but none is related to “prior authorization”. To
accuse that the US warship’s “unauthorized passage” violates rules of international
law may not be well-grounded.
Secondly, if might be true that the US FON operations are politically motivated
and intentionally provocative. Nevertheless, it is worth noting that the US FON
operations also challenge Vietnam’s “prior notification” requirement in its domestic
law, in Fiscal Years 2013, 2015, 2016, 2017 and 2018,
42 and several years before
when Vietnam still had the “prior authorization” requirement. Indeed, in the fiscal
year of 2018, the US also challenged many other States as well, such as Albania,
Croatia, Egypt, etc.
43 It can be argued that the US is somehow unbiased in this kind
of challenge, so the political factor and implication of the “unauthorized passage”
of US warships in the Chinese territorial sea may not be as strong as the Chinese
government feels.
Moreover, China accuses that the passage of the US warships is highly threatening
to the sovereignty and security in the islands in the South China Sea. However,
except the recent “near-bumping” incident between the Chinese and US destroyers,
no serious incidents has ever happened, and there has not been a single Chinese
casualty over the past several years.
Finally, by asserting “take any necessary measures”, the potential escalation of
confrontation between China and the US in the South China Sea is looming, which
39 B Starr, R. Browne and B. Lendon, “Chinese warship in ’unsafe’ encounter with US destroyer,
amid rising US-China tensions”, 2 October 2018, CNN News, available at https://edition.cnn.com/
2018/10/01/politics/china-us-warship-unsafe-encounter/index.html. Accessed 4 October 2018.
40 Kraska and Pedrozo, The Free Sea: The American Fight for Freedom of Navigation, pp. 234–236.
41 Anh Duc Ton, a Commander and lecturer at the Vietnamese Naval Academy, support this assertion.
Anh Duc Ton, Innocent Passage of Warships: International Law and the Practice of East Asian
Littoral States, 1 (2016) Asia-Pacific Journal of Ocean Law and Policy, p. 212.
42 Based on US Department of Defense Annual FON operations Reports from these fiscal years.
Available at: https://policy.defense.gov/OUSDP-Offices/FON/. Accessed 4 June 2019.
43 Annal Freedom of Navigation Report 2018, available at https://policy.defense.gov/OUSDP-Off
ices/FON/ .