5 A Chinese Perspective on the Innocent Passage of Warships …
91
not be favourable for the improvement of China’s image and reputation”.
47 More than
twenty years has passed since the publication of Professor Zou’s 1998 article, his
insightful remark remains true today. Indeed, the recent increasing tension between
China and the US over the issue of US warship’s “unauthorized passage” in the South
China Sea contributes nothing to the building of “sea of peace, sea of friendship and
sea of cooperation”. On the contrary, such confrontation may well smear the Chinese
image before the international community, and before the littoral States of the South
China Sea in particular. To change the current Chinese position, that is, amend the
1992 Chinese Territorial Sea Law, should be considered a priority to counteract the
increasing tension between China and the US in the South China Sea, and hopefully
bring back an amicable environment in the region. Obviously, to amend its domestic
law so as to make it in line with the UNCLOS will also improve the image of China
as a law-abiding country, a country sticks to the international rule of law.
48
5.4.2 The Option of “Prior Notification”, or the “Right
of Innocent Passage of Warships”?
One last question needs to be answered is: in case of amending the 1992 Chinese
Territorial Sea Law, whether the Chinese government should adopt the option of
“prior notification”, or the “right of innocent passage of warships”? It is worth noting
that when ratified the UNCLOS in May 1996, the Chinese government declared that
the provisions of the UNCLOS “shall not prejudice the right of a coastal State to
request, …a foreign State to obtain advance approval from or give prior notification
to the coastal State for the passage of its warships through the territorial sea of the
coastal State.”
49 It is obvious that unlike the 1992 Territorial Sea Law which only
stipulates the “prior authorization” requirement, the 1996 declaration does recognize the “prior notification” requirement, which, in some Chinese scholars’ view,
would be more consistent with the UNCLOS than that of the prior authorization.
50
Indeed, some States that previously had “prior authorization” requirement in their
domestic laws chose to amend their laws to “prior notification”, such as Vietnam
51
47 Ibid, p. 214.
48 See also: S. Yee, “Sketching the Debate on Military Activities in the EEZ: An Editorial Comment”,
9 (1) Chinese Journal of International Law (2010), p. 5.
49 Declaration and Statements, Oceans & Law of the Sea, United Nations, available
at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#ChinaUpon
ratification. Accessed 12 September 2018 (2018).
50 N. Yu, On the Innocent Passage of Warships. [1985] 6 Foreign Legal Science, pp. 40-44, as cited
in Zou, Innocent Passage for Warships. The Chinese Doctrine and Practice, p. 205.
51 In Article 12 of the 2012 Law of the Sea of Vietnam. See C. D. Guymon, (ed.), Digest of United
States Practice in International Law 2013, Office of the Legal Adviser, United States Department
of State, 2013, p. 371.
91
not be favourable for the improvement of China’s image and reputation”.
47 More than
twenty years has passed since the publication of Professor Zou’s 1998 article, his
insightful remark remains true today. Indeed, the recent increasing tension between
China and the US over the issue of US warship’s “unauthorized passage” in the South
China Sea contributes nothing to the building of “sea of peace, sea of friendship and
sea of cooperation”. On the contrary, such confrontation may well smear the Chinese
image before the international community, and before the littoral States of the South
China Sea in particular. To change the current Chinese position, that is, amend the
1992 Chinese Territorial Sea Law, should be considered a priority to counteract the
increasing tension between China and the US in the South China Sea, and hopefully
bring back an amicable environment in the region. Obviously, to amend its domestic
law so as to make it in line with the UNCLOS will also improve the image of China
as a law-abiding country, a country sticks to the international rule of law.
48
5.4.2 The Option of “Prior Notification”, or the “Right
of Innocent Passage of Warships”?
One last question needs to be answered is: in case of amending the 1992 Chinese
Territorial Sea Law, whether the Chinese government should adopt the option of
“prior notification”, or the “right of innocent passage of warships”? It is worth noting
that when ratified the UNCLOS in May 1996, the Chinese government declared that
the provisions of the UNCLOS “shall not prejudice the right of a coastal State to
request, …a foreign State to obtain advance approval from or give prior notification
to the coastal State for the passage of its warships through the territorial sea of the
coastal State.”
49 It is obvious that unlike the 1992 Territorial Sea Law which only
stipulates the “prior authorization” requirement, the 1996 declaration does recognize the “prior notification” requirement, which, in some Chinese scholars’ view,
would be more consistent with the UNCLOS than that of the prior authorization.
50
Indeed, some States that previously had “prior authorization” requirement in their
domestic laws chose to amend their laws to “prior notification”, such as Vietnam
51
47 Ibid, p. 214.
48 See also: S. Yee, “Sketching the Debate on Military Activities in the EEZ: An Editorial Comment”,
9 (1) Chinese Journal of International Law (2010), p. 5.
49 Declaration and Statements, Oceans & Law of the Sea, United Nations, available
at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#ChinaUpon
ratification. Accessed 12 September 2018 (2018).
50 N. Yu, On the Innocent Passage of Warships. [1985] 6 Foreign Legal Science, pp. 40-44, as cited
in Zou, Innocent Passage for Warships. The Chinese Doctrine and Practice, p. 205.
51 In Article 12 of the 2012 Law of the Sea of Vietnam. See C. D. Guymon, (ed.), Digest of United
States Practice in International Law 2013, Office of the Legal Adviser, United States Department
of State, 2013, p. 371.