5 A Chinese Perspective on the Innocent Passage of Warships …
83
and reasonable to conclude that warships do enjoy the right of innocent passage
as merchant ships. It is also worth noting that Mr Tommy Koh, President of the
UNCLOS III in 1982 made a statement shortly before the adoption of the final draft
of the Convention:
I think the Convention is quite clear on this point. Warships do, like other ships, have a right
of innocent passage through the territorial sea, and there is no need for warships to acquire
the prior consent or even notification of the coastal State. 20
Based on the above analysis, foreign critics conclude that the restriction on the
right of innocent passage of warships in the Chinese Territorial Sea Law is not in
conformity with the UNCLOS.
5.2.2 The Chinese Position Defended
Contrary to the criticism mentioned above, the Chinese official position has been
adamantly defended by most Chinese scholars of international law, before and after
the adoption of the Chinese Territorial Sea Law. Whereas a few Chinese international
law scholars do recognise that the correct interpretation of relevant provision in
the UNCLOS reveals that warships do enjoy the right of innocent passage in the
territorial sea without the requirement of prior authorization,
21 the majority sticks to
the official position and spare no efforts to defend that position. Among them, three
eminent scholars are worth mentioning.
The first eminent scholar is Professor Shao Jin of Peking University. In his 1989
article titled “The Question of Innocent Passage of Warships after UNCLOS III”,
Shao Jin summarized opinions of innocent passage of warships from various Chinese
international law scholars before him,
22 and pointed out that the title of Subsection A
of Section III, Part II of the UNCLOS is a “misnomer” because it was left unchanged
from a draft article during UNCLOS I.
23 He also argued that “titles do not have
independent legal existence and as such have no legal force”.
24 He further argued that
the rejection of the “prior authorization” requirement “does not signify that warships
were given the same right of innocent passage as merchant ships but rather that there
was sharp disagreement and the matter was left open”.
25 Finally, with regard to the
20 As cited in B. H. Oxman, “The Regime of Warships under the United Nations Convention on the
Law of the Sea”, 24 Virginia Journal of International Law (1984), p. 854.
21 See Q.W., Zhu, “Warships Shall Not Enjoy the Right of Innocent Passage”, [1983] (2) Journal of
Beijing College of Political Science and Law, pp. 44-50; and H.Y., Li, “Another Comment on the
Innocent Passage of Foreign Warships in the Territorial Sea”, [1998] (4) Peking University Law
Journal, pp. 88-91. Both articles are written in Chinese. No English translations are available.
22 Scholars cited by Shao Jin include: Zhou Genshen, Fu Chu, Liu Zheyung, Yu Ning, and Wei
Ming.
23 J. Shao, “The Question of Innocent Passage of Warships”, 13 (1) Marine Policy (1989), pp. 59–60.
24 Ibid, p. 60.
25 Ibid, p. 61.
83
and reasonable to conclude that warships do enjoy the right of innocent passage
as merchant ships. It is also worth noting that Mr Tommy Koh, President of the
UNCLOS III in 1982 made a statement shortly before the adoption of the final draft
of the Convention:
I think the Convention is quite clear on this point. Warships do, like other ships, have a right
of innocent passage through the territorial sea, and there is no need for warships to acquire
the prior consent or even notification of the coastal State. 20
Based on the above analysis, foreign critics conclude that the restriction on the
right of innocent passage of warships in the Chinese Territorial Sea Law is not in
conformity with the UNCLOS.
5.2.2 The Chinese Position Defended
Contrary to the criticism mentioned above, the Chinese official position has been
adamantly defended by most Chinese scholars of international law, before and after
the adoption of the Chinese Territorial Sea Law. Whereas a few Chinese international
law scholars do recognise that the correct interpretation of relevant provision in
the UNCLOS reveals that warships do enjoy the right of innocent passage in the
territorial sea without the requirement of prior authorization,
21 the majority sticks to
the official position and spare no efforts to defend that position. Among them, three
eminent scholars are worth mentioning.
The first eminent scholar is Professor Shao Jin of Peking University. In his 1989
article titled “The Question of Innocent Passage of Warships after UNCLOS III”,
Shao Jin summarized opinions of innocent passage of warships from various Chinese
international law scholars before him,
22 and pointed out that the title of Subsection A
of Section III, Part II of the UNCLOS is a “misnomer” because it was left unchanged
from a draft article during UNCLOS I.
23 He also argued that “titles do not have
independent legal existence and as such have no legal force”.
24 He further argued that
the rejection of the “prior authorization” requirement “does not signify that warships
were given the same right of innocent passage as merchant ships but rather that there
was sharp disagreement and the matter was left open”.
25 Finally, with regard to the
20 As cited in B. H. Oxman, “The Regime of Warships under the United Nations Convention on the
Law of the Sea”, 24 Virginia Journal of International Law (1984), p. 854.
21 See Q.W., Zhu, “Warships Shall Not Enjoy the Right of Innocent Passage”, [1983] (2) Journal of
Beijing College of Political Science and Law, pp. 44-50; and H.Y., Li, “Another Comment on the
Innocent Passage of Foreign Warships in the Territorial Sea”, [1998] (4) Peking University Law
Journal, pp. 88-91. Both articles are written in Chinese. No English translations are available.
22 Scholars cited by Shao Jin include: Zhou Genshen, Fu Chu, Liu Zheyung, Yu Ning, and Wei
Ming.
23 J. Shao, “The Question of Innocent Passage of Warships”, 13 (1) Marine Policy (1989), pp. 59–60.
24 Ibid, p. 60.
25 Ibid, p. 61.