Innocent passage of warships in East Asian territorial seas: Fid-Bau Portal

Innocent passage of warships in East Asian territorial seas

Windsor, Thomas

While it is true that coastal states exercise sovereignty over their territorial seas, this is subject to a right, and not a privilege, of innocent passage of foreign vessels. The balance that is created from the relationship between these two jostling interests is particularly unsettled when it comes to the enduring issue of foreign warships entering a coastal state’s territorial waters under the entrenched doctrine of innocent passage. The question is whether a coastal state may require prior notification or authorisation before a warship may enter its territorial waters in exercise of its right to innocent passage in peace time. A selection of seven coastal states in a broadly defined East Asia is taken and each state’s approach to this key issue is considered within one of four separate factors. Where state practices diverge, it is inevitable that clashes arise and these are best demonstrated through incidents rather than case law. Analysis of the arguments in favour of notification or authorisation includes a case study on China’s stance and how it justifies its interpretation of the United Nations Convention on the Law of the Sea 1982. In light of the stark contradiction in approaches between coastal states favouring notification and authorisation and those against it, a compromise solution of unofficial notice is advocated.