90
Y. Bao
is itself a negative catalyst to maintain the peace, security and stability in the region.
Obviously, the US will not be discouraged by the Chinese statement, as can be seen
in the statement made by US Lt. Gen. Kenneth McKenzie, the director of the US Joint
Staff in May 2018, after a previous US FON operation in the South China Sea.
44 To
make the situation in the South China Sea even worse, in February 2019, Admiral
Phil Davidson, then the commander of U.S. Indo-Pacific Command publicly claimed
that future South China Sea FON operations would include US allies such as Japan,
Australia, New Zealand, Canada, among others.
45
5.4 To Change or not to Change, that Is the Question
The above section critically analyses the Chinese response to the US FON operations
concerning the challenge to the “prior authorization” requirement in the Chinese
Territorial Sea Law. The present author has argued that the Chinese response is
neither effective nor convincing. It is against this background that a crucial question
needs to be answered: in the near future, whether China should amend its Territorial
Sea Law so as to alleviate the adverse effect of the US FON operations in the South
China Sea?
5.4.1 Benefits for Changing the Current Chinese Position
Whereas most Chinese international law scholars stick to the official Chinese position on restricting the right of innocent passage of foreign warships, a few Chinese
scholars do advocate that the Chinese government had better change the current
position. Professor Zou Keyuan, for instance, in his 1998 article “Innocent Passage
for Warships: The Chinese Doctrine and Practice” argued that China “is obliged to
bring its relevant domestic laws and regulations in line with the corresponding provisions of the Convention”, for the reason that the general norm pacta sunt servanda
(“treaty must be observed”) “obliges states to carry out in good faith their obligations
arising from treaties”. The Chinese Territorial Sea Law as a domestic law cannot be
served as an excuse for not performing the obligation in the UNCLOS.
46 In addition,
Professor Zou pointed out that the inconsistency between the Chinese Territorial Sea
Law and the UNCLOS concerning the right of innocent passage of warships “may
44 B. Werner, Pentagon Pledges More Freedom of Navigation Operations in South China Sea, 31
May 2018, USNI News, available at https://news.usni.org/2018/05/31/34016. Accessed 4 October
2018.
45 B. Werner, Future South China Sea FONOPS Will Include Allies, Partners, 12 February 2019,
USNI News, available at https://news.usni.org/2019/02/12/41070. Accessed 4 June 2019.
46 K. Y. Zou, “Innocent Passage for Warships: The Chinese Doctrine and Practice”. 29 Ocean
Development and International Law (1998), pp. 212–215.
Y. Bao
is itself a negative catalyst to maintain the peace, security and stability in the region.
Obviously, the US will not be discouraged by the Chinese statement, as can be seen
in the statement made by US Lt. Gen. Kenneth McKenzie, the director of the US Joint
Staff in May 2018, after a previous US FON operation in the South China Sea.
44 To
make the situation in the South China Sea even worse, in February 2019, Admiral
Phil Davidson, then the commander of U.S. Indo-Pacific Command publicly claimed
that future South China Sea FON operations would include US allies such as Japan,
Australia, New Zealand, Canada, among others.
45
5.4 To Change or not to Change, that Is the Question
The above section critically analyses the Chinese response to the US FON operations
concerning the challenge to the “prior authorization” requirement in the Chinese
Territorial Sea Law. The present author has argued that the Chinese response is
neither effective nor convincing. It is against this background that a crucial question
needs to be answered: in the near future, whether China should amend its Territorial
Sea Law so as to alleviate the adverse effect of the US FON operations in the South
China Sea?
5.4.1 Benefits for Changing the Current Chinese Position
Whereas most Chinese international law scholars stick to the official Chinese position on restricting the right of innocent passage of foreign warships, a few Chinese
scholars do advocate that the Chinese government had better change the current
position. Professor Zou Keyuan, for instance, in his 1998 article “Innocent Passage
for Warships: The Chinese Doctrine and Practice” argued that China “is obliged to
bring its relevant domestic laws and regulations in line with the corresponding provisions of the Convention”, for the reason that the general norm pacta sunt servanda
(“treaty must be observed”) “obliges states to carry out in good faith their obligations
arising from treaties”. The Chinese Territorial Sea Law as a domestic law cannot be
served as an excuse for not performing the obligation in the UNCLOS.
46 In addition,
Professor Zou pointed out that the inconsistency between the Chinese Territorial Sea
Law and the UNCLOS concerning the right of innocent passage of warships “may
44 B. Werner, Pentagon Pledges More Freedom of Navigation Operations in South China Sea, 31
May 2018, USNI News, available at https://news.usni.org/2018/05/31/34016. Accessed 4 October
2018.
45 B. Werner, Future South China Sea FONOPS Will Include Allies, Partners, 12 February 2019,
USNI News, available at https://news.usni.org/2019/02/12/41070. Accessed 4 June 2019.
46 K. Y. Zou, “Innocent Passage for Warships: The Chinese Doctrine and Practice”. 29 Ocean
Development and International Law (1998), pp. 212–215.