92
Y. Bao
and Bangladesh.
52 However, it is worth noting that the US FON operations have
continued to challenge Vietnam since 2013, for the US deems that “prior notification”
is an excessive restriction on the right of the innocent passage of warships.
A more radical change is to fully recognize the right of innocent passage of
warships in the territorial sea, without even the “prior notification” requirement.
That change will bring China into the group of more than 120 State parties to the
UNCLOS who do not restrict the innocent passage of warships in the territorial sea.
If so, it will thoroughly solve the aforementioned controversy and prevent further
confrontation between China and the US concerning the innocent passage of warships
in the South China Sea. However, from the perspective of protecting Chinese national
security and territorial sovereignty concerning the islands in the South China Sea,
the present author predicts that China will not opt to change its original position
to fully recognize the right of innocent passage of warships in the territorial sea
anytime soon. Nevertheless, with the ongoing great expansion of Chinese modern
fleets since the last decade, it is of great importance that the PLAN warships will
not be hampered by any restriction on their passage in foreign territorial waters.
Therefore, strategically speaking, though the “prior notification” requirement will
not solve the issue completely, it is perhaps a suitable and viable option that China
may choose to adopt in the near future.
5.5 Conclusions
During the writing of this chapter, events in the South China Sea in the first half
of 2020 unfold the increasing tension between China and the US concerning the
“unauthorized passage” of US warships in vicinity of Chinese occupied islands and
reefs in the South China Sea. The controversy and debate on the issue of the right
of innocent passage of foreign warships in the territorial sea of the coastal State
are far from settled. Perhaps, the confrontation between China and the US over this
specific issue will not be alleviated anytime soon, unless China voluntarily amends
its 1992 Territorial Sea Law to make it in conformity with the UNCLOS. Therefore,
the present author holds the opinion that China shall consider to make the plan to
amend its Territorial Sea Law as a priority. To change the current position is urgent,
obligatory, and perhaps essential to truly build the South China Sea into “a sea of
peace, sea of friendship and sea of cooperation”.
52 In its 2001 declaration when ratified the UNCLOS. See “Declaration and Statements, Oceans &
Law of the Sea”, United Nations, available at http://www.un.org/depts/los/convention_agreements/
convention_declarations.htm#China Upon ratification. Accessed 4 October 2018.
Y. Bao
and Bangladesh.
52 However, it is worth noting that the US FON operations have
continued to challenge Vietnam since 2013, for the US deems that “prior notification”
is an excessive restriction on the right of the innocent passage of warships.
A more radical change is to fully recognize the right of innocent passage of
warships in the territorial sea, without even the “prior notification” requirement.
That change will bring China into the group of more than 120 State parties to the
UNCLOS who do not restrict the innocent passage of warships in the territorial sea.
If so, it will thoroughly solve the aforementioned controversy and prevent further
confrontation between China and the US concerning the innocent passage of warships
in the South China Sea. However, from the perspective of protecting Chinese national
security and territorial sovereignty concerning the islands in the South China Sea,
the present author predicts that China will not opt to change its original position
to fully recognize the right of innocent passage of warships in the territorial sea
anytime soon. Nevertheless, with the ongoing great expansion of Chinese modern
fleets since the last decade, it is of great importance that the PLAN warships will
not be hampered by any restriction on their passage in foreign territorial waters.
Therefore, strategically speaking, though the “prior notification” requirement will
not solve the issue completely, it is perhaps a suitable and viable option that China
may choose to adopt in the near future.
5.5 Conclusions
During the writing of this chapter, events in the South China Sea in the first half
of 2020 unfold the increasing tension between China and the US concerning the
“unauthorized passage” of US warships in vicinity of Chinese occupied islands and
reefs in the South China Sea. The controversy and debate on the issue of the right
of innocent passage of foreign warships in the territorial sea of the coastal State
are far from settled. Perhaps, the confrontation between China and the US over this
specific issue will not be alleviated anytime soon, unless China voluntarily amends
its 1992 Territorial Sea Law to make it in conformity with the UNCLOS. Therefore,
the present author holds the opinion that China shall consider to make the plan to
amend its Territorial Sea Law as a priority. To change the current position is urgent,
obligatory, and perhaps essential to truly build the South China Sea into “a sea of
peace, sea of friendship and sea of cooperation”.
52 In its 2001 declaration when ratified the UNCLOS. See “Declaration and Statements, Oceans &
Law of the Sea”, United Nations, available at http://www.un.org/depts/los/convention_agreements/
convention_declarations.htm#China Upon ratification. Accessed 4 October 2018.