84
Y. Bao
innocent passage of submarines, he pointed out that submarines are “not necessarily
military”, so it is not relevant to the “point at issue”, that is, the innocent passage of
warships.
26 Shao Jin concluded that the right of innocent passage of foreign warships
“has never been generally recognized”, and therefore:
Coastal states may…make the passage subject to previous notification or authorization, or to
some other requirements; foreign warships intending to engage in such passage shall comply
with the requirements prescribed in the laws and regulations of the coastal states. 27
Another notable scholar is Professor Zhao Jianwen from the Institute of International Law, China Academy of Social Sciences. In his 2005 article “On the Interpretation Declarations by the State Parties to United Nations Convention on the Law
of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial Sea”, he commented that based on the declarations made by State parties to
the UNCLOS, the UNCLOS as well as customary international law indeed permits
warships’ innocent passage through the territorial sea. Meanwhile, the UNCLOS also
allows coastal States to require prior notification or permission.
28 He also cited similar
opinions from Judge Budislav Vukas for supporting his own point of view.
29 Zhao
Jianwen further emphasized that the foreign warships should respect the requirement of the coastal States on prior notification or permission. More importantly, he
pointed out that “[w]hether a State is threatened or not usually may not be judged by
other States, especially by those States with powerful fleets”.
30 From the “right to
protect security interests”, UNCLOS does not prohibit coastal States to adopt laws
or regulations on the “prior authorization” requirement.
31
The official Chinese position was once again defended by Professor Jin Yongmin
from the Institute of Law, Shanghai Academy of Social Science. In his March 2016
article titled “On the Regime of Innocent Passage in the Territorial Sea”, he argued
that for those modern warships that equipped with high-threat cruise missiles, their
unauthorized passage in the territorial sea of the coastal State will greatly threaten
the sovereignty and peace of the coastal State, and the passage will also highly likely
to cause “security incidents”.
32 He also emphasized that according to Article 19 (l)
of the UNCLOS, “any other activity not having a direct bearing on passage” will be
deemed as “not innocent”. According to Professor Jin, unauthorized passage may
26 Ibid.
27 Ibid, p. 67.
28 J. W. Zhao, “On the Interpretation Declarations by the State Parties to United Nations Convention
on the Law of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial
Sea”, [2005] (2) China Oceans Law Review (2005), pp. 305–306.
29 B. Vukas, The Law of the Sea: Selected Writings. Leiden: Martinus Nijhoff Publishers, 2004
(2004), p. 140.
30 Zhao, On the Interpretation Declarations by the State Parties to United Nations Convention on
the Law of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial
Sea, p. 308.
31 Ibid.
32 Y.M. Jin, On the Regime of Innocent Passage in the Territorial Sea. [2016] (2) Chinese Review
of International Law, p. 68.
Y. Bao
innocent passage of submarines, he pointed out that submarines are “not necessarily
military”, so it is not relevant to the “point at issue”, that is, the innocent passage of
warships.
26 Shao Jin concluded that the right of innocent passage of foreign warships
“has never been generally recognized”, and therefore:
Coastal states may…make the passage subject to previous notification or authorization, or to
some other requirements; foreign warships intending to engage in such passage shall comply
with the requirements prescribed in the laws and regulations of the coastal states. 27
Another notable scholar is Professor Zhao Jianwen from the Institute of International Law, China Academy of Social Sciences. In his 2005 article “On the Interpretation Declarations by the State Parties to United Nations Convention on the Law
of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial Sea”, he commented that based on the declarations made by State parties to
the UNCLOS, the UNCLOS as well as customary international law indeed permits
warships’ innocent passage through the territorial sea. Meanwhile, the UNCLOS also
allows coastal States to require prior notification or permission.
28 He also cited similar
opinions from Judge Budislav Vukas for supporting his own point of view.
29 Zhao
Jianwen further emphasized that the foreign warships should respect the requirement of the coastal States on prior notification or permission. More importantly, he
pointed out that “[w]hether a State is threatened or not usually may not be judged by
other States, especially by those States with powerful fleets”.
30 From the “right to
protect security interests”, UNCLOS does not prohibit coastal States to adopt laws
or regulations on the “prior authorization” requirement.
31
The official Chinese position was once again defended by Professor Jin Yongmin
from the Institute of Law, Shanghai Academy of Social Science. In his March 2016
article titled “On the Regime of Innocent Passage in the Territorial Sea”, he argued
that for those modern warships that equipped with high-threat cruise missiles, their
unauthorized passage in the territorial sea of the coastal State will greatly threaten
the sovereignty and peace of the coastal State, and the passage will also highly likely
to cause “security incidents”.
32 He also emphasized that according to Article 19 (l)
of the UNCLOS, “any other activity not having a direct bearing on passage” will be
deemed as “not innocent”. According to Professor Jin, unauthorized passage may
26 Ibid.
27 Ibid, p. 67.
28 J. W. Zhao, “On the Interpretation Declarations by the State Parties to United Nations Convention
on the Law of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial
Sea”, [2005] (2) China Oceans Law Review (2005), pp. 305–306.
29 B. Vukas, The Law of the Sea: Selected Writings. Leiden: Martinus Nijhoff Publishers, 2004
(2004), p. 140.
30 Zhao, On the Interpretation Declarations by the State Parties to United Nations Convention on
the Law of the Sea concerning the Issue of Innocent Passage of Warships through the Territorial
Sea, p. 308.
31 Ibid.
32 Y.M. Jin, On the Regime of Innocent Passage in the Territorial Sea. [2016] (2) Chinese Review
of International Law, p. 68.