80
Y. Bao
the US navy destroyers continued to sail within 12 nautical miles of the Chinese
controlled islands and reefs on a regular basis in the ending months of 2018 as well
as in 2019, culminated in November 2019 when the US navy destroyers unprecedentedly carried out similar operations twice within two days.
4 This kind of practice
was repeated in late April 2020.
5 Evidently, these events illustrate the determined US
challenges to the Chinese domestic laws and regulations, especially those concerning
the restriction on the innocent passage of foreign warships in the Chinese territorial
sea. This chapter will focus on the controversy and debate over this restriction, and
provides a critical analysis of the issue of innocent passage of warships from a
Chinese perspective.
5.2 Critique of the Traditional Chinese Position
on the Innocent Passage of Warships
As a rising maritime power, China has already adopted extensive domestic legislation
related to the law of the sea.
6 With regard to the issue of innocent passage in the
territorial sea, China adopted its Law on the Territorial Sea and the Contiguous Zone
in February 1992,
7 two years before the entry into force of the 1982 United Nations
Convention on the Law of the Sea,
8 and four years before China’s accession to the
Convention in May 1996. In Article 6 of that law, it stipulates that:
Foreign ships for non-military purposes shall enjoy the right of innocent passage through
the territorial sea of the People’s Republic of China in accordance with the law.
Foreign ships for military purposes shall be subject to approval by the Government of the
People’s Republic of China for entering the territorial sea of the People’s Republic of China. 9
As such, it is obvious that the official Chinese position on the issue of innocent
passage is that the right of innocent passage does not extend to foreign warships.
Accordingly, should a foreign warship intend to pass though the Chinese territorial
4 J. Ditzler and Doornbos. US Warships Conduct Back-to-Back Freedom of Navigation Passes in South China Sea, 21 November 2019. Stars and Stripes, available at https://www.stripes.com/news/pacific/us-warships-conduct-back-to-back-freedom-of-nav
igation-passes-in-south-china-sea-1.608209. Accessed 25 May 2020.
5 S. LaGrone, “USS Bunker Hill Conducts 2nd South China Sea Freedom of Navigation Operation
This Week”. 29 April 2020. USNI News, available at https://news.usni.org/2020/04/29/uss-bunkerhill-conducts-2nd-south-china-sea-freedom-of-navigation-operation-this-week. Accessed 25 May
2020.
6 K.Y. Zou, Implementation of the United Nations Law of the Sea Convention in China, in S. Lee &
W. Gullett (ed.), Asia-Pacific and the Implementation of the Law of the Sea: Regional Legislative
and Policy Approaches to the Law of the Sea Convention, Leiden: Brill Nijhoff, pp. 15–19 (2016).
7 Hereinafter referred to as the “Chinese Territorial Sea Law”.
8 Hereinafter referred to as the “UNCLOS” or the “Convention”.
9 This specific stipulation on the restriction of the passage of foreign military vessels in the Chinese
territorial waters is based on the “Declaration of the Government of the People’s Republic of China
on China’s Territorial Sea” (4 September 1958).
Y. Bao
the US navy destroyers continued to sail within 12 nautical miles of the Chinese
controlled islands and reefs on a regular basis in the ending months of 2018 as well
as in 2019, culminated in November 2019 when the US navy destroyers unprecedentedly carried out similar operations twice within two days.
4 This kind of practice
was repeated in late April 2020.
5 Evidently, these events illustrate the determined US
challenges to the Chinese domestic laws and regulations, especially those concerning
the restriction on the innocent passage of foreign warships in the Chinese territorial
sea. This chapter will focus on the controversy and debate over this restriction, and
provides a critical analysis of the issue of innocent passage of warships from a
Chinese perspective.
5.2 Critique of the Traditional Chinese Position
on the Innocent Passage of Warships
As a rising maritime power, China has already adopted extensive domestic legislation
related to the law of the sea.
6 With regard to the issue of innocent passage in the
territorial sea, China adopted its Law on the Territorial Sea and the Contiguous Zone
in February 1992,
7 two years before the entry into force of the 1982 United Nations
Convention on the Law of the Sea,
8 and four years before China’s accession to the
Convention in May 1996. In Article 6 of that law, it stipulates that:
Foreign ships for non-military purposes shall enjoy the right of innocent passage through
the territorial sea of the People’s Republic of China in accordance with the law.
Foreign ships for military purposes shall be subject to approval by the Government of the
People’s Republic of China for entering the territorial sea of the People’s Republic of China. 9
As such, it is obvious that the official Chinese position on the issue of innocent
passage is that the right of innocent passage does not extend to foreign warships.
Accordingly, should a foreign warship intend to pass though the Chinese territorial
4 J. Ditzler and Doornbos. US Warships Conduct Back-to-Back Freedom of Navigation Passes in South China Sea, 21 November 2019. Stars and Stripes, available at https://www.stripes.com/news/pacific/us-warships-conduct-back-to-back-freedom-of-nav
igation-passes-in-south-china-sea-1.608209. Accessed 25 May 2020.
5 S. LaGrone, “USS Bunker Hill Conducts 2nd South China Sea Freedom of Navigation Operation
This Week”. 29 April 2020. USNI News, available at https://news.usni.org/2020/04/29/uss-bunkerhill-conducts-2nd-south-china-sea-freedom-of-navigation-operation-this-week. Accessed 25 May
2020.
6 K.Y. Zou, Implementation of the United Nations Law of the Sea Convention in China, in S. Lee &
W. Gullett (ed.), Asia-Pacific and the Implementation of the Law of the Sea: Regional Legislative
and Policy Approaches to the Law of the Sea Convention, Leiden: Brill Nijhoff, pp. 15–19 (2016).
7 Hereinafter referred to as the “Chinese Territorial Sea Law”.
8 Hereinafter referred to as the “UNCLOS” or the “Convention”.
9 This specific stipulation on the restriction of the passage of foreign military vessels in the Chinese
territorial waters is based on the “Declaration of the Government of the People’s Republic of China
on China’s Territorial Sea” (4 September 1958).