82
Y. Bao
Kim of Korea Naval Academy in his article titled “the 1992 Chinese Territorial
Sea Law in the Light of the UN Convention” criticised that Article 6 of the Chinese
Territorial Sea Law was not in conformity with relevant provisions in the UNCLOS.
15
He advised that China “should revise its Territorial Sea Law in accordance with the
UN Convention before it ratifies the Convention”.
16 Professor Kim also accurately
envisaged that the “discrepancies between the 1992 Territorial Sea Law and the UN
Convention…are very likely to cause international disputes, the settlement of which
would not be easy”.
17
The rationale of the aforementioned criticism over the “prior authorization”
requirement in the Chinese Territorial Sea Law can be briefly summarized as follows:
First, it can be seen from the structure of section 3 “Innocent Passage in the
Territorial Sea” in Part II of the UNCLOS that the core provisions governing the
regime of innocent passage are contained in Subsection A, evidently titled “Rules
Applicable to All Ships”. Since “warships” is naturally treated as a sub-category of
“all ships”, all the rules in Subsection A should indiscriminately apply to warships.
Accordingly, Article 17 that provides a general right of innocent passage through the
territorial sea for “ships of all States” should naturally apply to warships. And so, it
is also obvious that any restriction on the right of innocent passage for warships such
as the “prior authorization” requirement in the Chinese Territorial Sea Law will not
be deemed as compatible with Article 17 of the UNCLOS because such restriction
amounts to the exclusion of warships to enjoy the right of innocent passage. Just as
one scholar points out, “[s]uch a requirement implies innocent passage is exercised
as a privilege rather than as a right. This contravenes the essence of the doctrine”.
18
Second, it can be argued that the mere presence of a foreign warship in the territorial sea does not necessarily manifest the “threat or use of force against the territorial
integrity or political independence”
19 of the coastal State. Indeed, according to Article
19 (1) of the UNCLOS, “passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal State”. It can be claimed that there is no
direct “cause and effect” between the mere presence of a warship in the territorial
sea and the threat to the peace and security of the coastal State.
Moreover, it can also be inferred from the text of Article 20 of the UNCLOS that
submarines enjoy the right of innocent passage in the territorial sea. Since military
submarines are classified as warships, it is inconceivable that warships in general do
not enjoy the right of innocent passage.
In short, by closely examining the relevant provisions of the right of innocent
passage in section 3, Subsection A of the Part II of the UNCLOS, it is only natural
15 To be specific, Articles 17 and 19 of the UNCLOS. See H.S. Kim, (1994). “The 1992 Chinese
Territorial Sea Law in the Light of the UN Convention”, 43 International and Comparative Law
Quarterly, p. 902.
16 Ibid, p. 904.
17 Ibid, p. 894.
18 T. Windsor, Innocent Passage of Warships in East Asian Territorial Seas, 3 Australian Journal of
Maritime and Ocean Affairs (2011), p. 78.
19 Article 2 (4) of the United Nations Charter.
Y. Bao
Kim of Korea Naval Academy in his article titled “the 1992 Chinese Territorial
Sea Law in the Light of the UN Convention” criticised that Article 6 of the Chinese
Territorial Sea Law was not in conformity with relevant provisions in the UNCLOS.
15
He advised that China “should revise its Territorial Sea Law in accordance with the
UN Convention before it ratifies the Convention”.
16 Professor Kim also accurately
envisaged that the “discrepancies between the 1992 Territorial Sea Law and the UN
Convention…are very likely to cause international disputes, the settlement of which
would not be easy”.
17
The rationale of the aforementioned criticism over the “prior authorization”
requirement in the Chinese Territorial Sea Law can be briefly summarized as follows:
First, it can be seen from the structure of section 3 “Innocent Passage in the
Territorial Sea” in Part II of the UNCLOS that the core provisions governing the
regime of innocent passage are contained in Subsection A, evidently titled “Rules
Applicable to All Ships”. Since “warships” is naturally treated as a sub-category of
“all ships”, all the rules in Subsection A should indiscriminately apply to warships.
Accordingly, Article 17 that provides a general right of innocent passage through the
territorial sea for “ships of all States” should naturally apply to warships. And so, it
is also obvious that any restriction on the right of innocent passage for warships such
as the “prior authorization” requirement in the Chinese Territorial Sea Law will not
be deemed as compatible with Article 17 of the UNCLOS because such restriction
amounts to the exclusion of warships to enjoy the right of innocent passage. Just as
one scholar points out, “[s]uch a requirement implies innocent passage is exercised
as a privilege rather than as a right. This contravenes the essence of the doctrine”.
18
Second, it can be argued that the mere presence of a foreign warship in the territorial sea does not necessarily manifest the “threat or use of force against the territorial
integrity or political independence”
19 of the coastal State. Indeed, according to Article
19 (1) of the UNCLOS, “passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal State”. It can be claimed that there is no
direct “cause and effect” between the mere presence of a warship in the territorial
sea and the threat to the peace and security of the coastal State.
Moreover, it can also be inferred from the text of Article 20 of the UNCLOS that
submarines enjoy the right of innocent passage in the territorial sea. Since military
submarines are classified as warships, it is inconceivable that warships in general do
not enjoy the right of innocent passage.
In short, by closely examining the relevant provisions of the right of innocent
passage in section 3, Subsection A of the Part II of the UNCLOS, it is only natural
15 To be specific, Articles 17 and 19 of the UNCLOS. See H.S. Kim, (1994). “The 1992 Chinese
Territorial Sea Law in the Light of the UN Convention”, 43 International and Comparative Law
Quarterly, p. 902.
16 Ibid, p. 904.
17 Ibid, p. 894.
18 T. Windsor, Innocent Passage of Warships in East Asian Territorial Seas, 3 Australian Journal of
Maritime and Ocean Affairs (2011), p. 78.
19 Article 2 (4) of the United Nations Charter.