5 A Chinese Perspective on the Innocent Passage of Warships …
85
well constitute “political and legal provocation” and will fall into category of activity
in Article 19 (l).
33 It is worth noting that Professor Jin’s arguments was later reflected
in a statement made by admiral Sun Jianguo, then deputy chief of China’s joint staff
in July 2016 at a closed forum in Beijing.
34
To sum up, the majority of Chinese international law scholars holds the opinion
that China does have the right to set out “reasonable” restrictions on the passage of
foreign warships in its territorial sea, based on the following reasons.
First, there is no unified State practice on the issue of innocent passage of warships
among State parties to the UNCLOS. This can be generalized from the drafting history
of the UNCLOS as well as State practice after the adoption of the UNCLOS.
Second, the “prior authorization” requirement does not contravene relevant
provisions of the UNCLOS.
Third, the mere presence of modern warships that equipped with high threat
weapons in the territorial sea of a coastal State does pose potential threat to the
sovereignty and peace of the coastal State. In short, there is sufficient reason for the
coastal State to require prior authorization.
Fourth, unauthorized passage of foreign warships can be deemed as political or
legal provocation against the coastal State, and accordingly, such passage will be
classified as not innocent. The coastal State shall have the right to set restriction to
regulate such passage.
5.3 “Unauthorized Passage” of US Warships in the South
China Sea and the Chinese Response
Whereas the theoretical debate on the right of innocent passage of warships continues,
it is actual State practice that draws attention. As has been mentioned above, from
1992 to the first half of 2020, the US FON operations challenged the “prior authorization” requirement in 13 years. Notably, from 2011 to May 2020, the FON operations
challenged the “prior authorization” requirement 10 years in a row, and it has become
much more publicized since October 2015, in the form of unauthorized passage of
guided-missile destroyers and cruisers in the South China Sea. The challenge since
October 2015 is summarized in the table below.
33 Ibid.
34 Erik Slavin Chinese Admiral Contests Freedom of Navigation in South China Sea”, 19 July 2016,
Star & Stripes, available at https://www.stripes.com/news/chinese-admiral-contests-freedom-ofnavigation-in-south-china-sea-1.419813. See also, Kraska and Pedrozo The Free Sea: The American
Fight for Freedom of Navigation, p. 280.
85
well constitute “political and legal provocation” and will fall into category of activity
in Article 19 (l).
33 It is worth noting that Professor Jin’s arguments was later reflected
in a statement made by admiral Sun Jianguo, then deputy chief of China’s joint staff
in July 2016 at a closed forum in Beijing.
34
To sum up, the majority of Chinese international law scholars holds the opinion
that China does have the right to set out “reasonable” restrictions on the passage of
foreign warships in its territorial sea, based on the following reasons.
First, there is no unified State practice on the issue of innocent passage of warships
among State parties to the UNCLOS. This can be generalized from the drafting history
of the UNCLOS as well as State practice after the adoption of the UNCLOS.
Second, the “prior authorization” requirement does not contravene relevant
provisions of the UNCLOS.
Third, the mere presence of modern warships that equipped with high threat
weapons in the territorial sea of a coastal State does pose potential threat to the
sovereignty and peace of the coastal State. In short, there is sufficient reason for the
coastal State to require prior authorization.
Fourth, unauthorized passage of foreign warships can be deemed as political or
legal provocation against the coastal State, and accordingly, such passage will be
classified as not innocent. The coastal State shall have the right to set restriction to
regulate such passage.
5.3 “Unauthorized Passage” of US Warships in the South
China Sea and the Chinese Response
Whereas the theoretical debate on the right of innocent passage of warships continues,
it is actual State practice that draws attention. As has been mentioned above, from
1992 to the first half of 2020, the US FON operations challenged the “prior authorization” requirement in 13 years. Notably, from 2011 to May 2020, the FON operations
challenged the “prior authorization” requirement 10 years in a row, and it has become
much more publicized since October 2015, in the form of unauthorized passage of
guided-missile destroyers and cruisers in the South China Sea. The challenge since
October 2015 is summarized in the table below.
33 Ibid.
34 Erik Slavin Chinese Admiral Contests Freedom of Navigation in South China Sea”, 19 July 2016,
Star & Stripes, available at https://www.stripes.com/news/chinese-admiral-contests-freedom-ofnavigation-in-south-china-sea-1.419813. See also, Kraska and Pedrozo The Free Sea: The American
Fight for Freedom of Navigation, p. 280.