5 A Chinese Perspective on the Innocent Passage of Warships …
81
sea, it would be compulsory for that warship to secure a formal approval from the
Chinese government in advance. This is the so-called “prior authorization” requirement. Otherwise, the Chinese government will regard any unauthorized passage as a
breach of its Territorial Sea Law, and accordingly, the Chinese authority may invoke
Article 30 of the UNCLOS to require that warship “to leave the territorial sea immediately”. The Chinese position was reiterated in its official declaration when the
Standing Committee of the People’s Congress of China ratified the UNCLOS on 15
May 1996.
10
5.2.1 The Chinese Position Criticized
Almost immediately after the adoption of the Chinese Territorial Sea Law, the
Chinese position on the restriction of the passage of foreign warships in the Chinese
territorial sea received criticism from foreign governments. For instance, the US
lodged a diplomatic protest as early as in August 1992,
11 accompanied by one of
its first series of FON operations to challenge the Chinese Territorial Sea Law.
12
The United Kingdom government also did not recognise the Chinese claim.
13 More
significantly, since 1992, the US has challenged the “prior authorization” requirement in the Chinese Territorial Sea Law on a regular basis. A statistic summary by
the author of the present chapter based on the annual reports of the US FON operations reveals that from 1992 to the first half of 2020, the US FON operations has
challenged the prior authorization requirement in 13 years, out of a total of 18 years
that FON operations targeted China.
14 And evidently, the US’s challenge to the “prior
authorization” requirement through the FON operations has not stopped. In fact, the
challenge has become even more intense in recent years, which resulted in more
confrontations between the US Navy (USN) and the Chinese People’s Liberation
Army Navy (PLAN) in the South China Sea.
In addition to criticism from foreign governments, the Chinese Territorial Sea
Law also attracts criticism from foreign academics. For instance, as early as 1994,
that is two years after China adopted its Territorial Sea Law, Professor Hyun-Soo
10 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 12 September 2018. The Convention entered into force in China on the same
day.
11 J. A. Roach and R. W. Smith, Excessive Maritime Claims, Third Edition. Leiden: Martinus Nijhoff
Publishers, 2012, p. 247.
12 D. Cheney, Annual Report to the President and the Congress (1993), United States Department of Defense, available at https://policy.defense.gov/Portals/11/Documents/gsa/cwmd/FY1
992%20DOD%20Annual%20FON%20Report.pdf. Accessed 13 September 2018.
13 J. A. Roach and R. W. Smith, Excessive Maritime Claims, Third Edition. Leiden: Martinus Nijhoff
Publishers (2012), p. 247.
14 Statistics summarised from US Department of Defense Annual FON operations Reports (2020).
Available at https://policy.defense.gov/OUSDP-Offices/FON/. Accessed 25 May 2020.
81
sea, it would be compulsory for that warship to secure a formal approval from the
Chinese government in advance. This is the so-called “prior authorization” requirement. Otherwise, the Chinese government will regard any unauthorized passage as a
breach of its Territorial Sea Law, and accordingly, the Chinese authority may invoke
Article 30 of the UNCLOS to require that warship “to leave the territorial sea immediately”. The Chinese position was reiterated in its official declaration when the
Standing Committee of the People’s Congress of China ratified the UNCLOS on 15
May 1996.
10
5.2.1 The Chinese Position Criticized
Almost immediately after the adoption of the Chinese Territorial Sea Law, the
Chinese position on the restriction of the passage of foreign warships in the Chinese
territorial sea received criticism from foreign governments. For instance, the US
lodged a diplomatic protest as early as in August 1992,
11 accompanied by one of
its first series of FON operations to challenge the Chinese Territorial Sea Law.
12
The United Kingdom government also did not recognise the Chinese claim.
13 More
significantly, since 1992, the US has challenged the “prior authorization” requirement in the Chinese Territorial Sea Law on a regular basis. A statistic summary by
the author of the present chapter based on the annual reports of the US FON operations reveals that from 1992 to the first half of 2020, the US FON operations has
challenged the prior authorization requirement in 13 years, out of a total of 18 years
that FON operations targeted China.
14 And evidently, the US’s challenge to the “prior
authorization” requirement through the FON operations has not stopped. In fact, the
challenge has become even more intense in recent years, which resulted in more
confrontations between the US Navy (USN) and the Chinese People’s Liberation
Army Navy (PLAN) in the South China Sea.
In addition to criticism from foreign governments, the Chinese Territorial Sea
Law also attracts criticism from foreign academics. For instance, as early as 1994,
that is two years after China adopted its Territorial Sea Law, Professor Hyun-Soo
10 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 12 September 2018. The Convention entered into force in China on the same
day.
11 J. A. Roach and R. W. Smith, Excessive Maritime Claims, Third Edition. Leiden: Martinus Nijhoff
Publishers, 2012, p. 247.
12 D. Cheney, Annual Report to the President and the Congress (1993), United States Department of Defense, available at https://policy.defense.gov/Portals/11/Documents/gsa/cwmd/FY1
992%20DOD%20Annual%20FON%20Report.pdf. Accessed 13 September 2018.
13 J. A. Roach and R. W. Smith, Excessive Maritime Claims, Third Edition. Leiden: Martinus Nijhoff
Publishers (2012), p. 247.
14 Statistics summarised from US Department of Defense Annual FON operations Reports (2020).
Available at https://policy.defense.gov/OUSDP-Offices/FON/. Accessed 25 May 2020.