China as a Maritime Power and the Interpretation of Innocent Passage

Maritime powers have been instrumental in shaping the development of the Law of the Sea (LoS). While not uncontested, their inclusion and interpretation of key concepts into the LoS become dominant over time. As a result, expectations increase for other states to accept these or risk being cast as counter-normative actors. Nevertheless, the dominant interpretation of innocent passage, a pivotal component of the LoS, has been consistently contested by emerging powers like China. Although there is an assumption that as countries become maritime powers they are likely to prefer a broader interpretation of innocent passage, this neglects the historical context which informs these interpretations. In the case of China, its collective sense of insecurity and national trauma are framed by its experiences with Western powers that exploited its vast coasts in the past two centuries. As a result, this assumption fails to account for the possibility that these experiences are likely to reinforce China’s restrictive interpretations of innocent passage even if it achieves the status of maritime power.

By-and-large the concept of innocent passage is well settled having been encoded in the UN convention on the Law of the Sea (LOSC). Passage is defined by the LOSC as “traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or…proceeding to or from internal waters or a call at such roadstead or port facility.” However, innocent passage is not just about passage it is also about the innocent aspect. The LOSC states that “passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.” The provision then further elaborates on twelve actions that are non-innocent. These include actions that are traditionally seen as threatening such as the threat or use of force, military exercises with weapons, and launching or landing aircraft or other military devices. It also includes aspects not necessarily a threat militarily but that are a violation of the coastal state’s sovereignty such as fishing or carrying out research.

There are, however, still some major controversies that remain. Principally, there is still significant contestation over the meaning of innocent passage as it relates to warships. The major maritime powers such as the US and the UK interpret this to mean that warships can engage in innocent passage so long as they abide by the twelve stipulations that are explicitly listed as non-innocent. Essentially, their argument is that these twelve stipulations are an exhaustive list of all that counts as non-innocent. Maritime powers have historically adopted this argument as it grants them more freedom to move their naval forces around the globe without obstacles. They see this ability to send their navy around the world as central to their security and the stability of the global order. On the other hand, several states especially in the developing world argue that warships, because of their military purpose and the fact that they carry weapons, are inherently threatening to the security of coastal state. Thus, they are inherently non-innocent. This side argues that if those twelve stipulations are the only things that count as non-innocent, the provision that defines non-innocent as “not prejudicial to the peace, good order or security of the coastal State” is superfluous.

China has consistently placed itself in this latter group. Its Declaration of the Territorial Sea from 1958, and its successor, the Law of the Territorial Sea and Contiguous Zone from 1992, require warships to obtain permission in order to conduct innocent passage. This requirement has been shaped by a collective sense of insecurity and trauma originating in the Century of National Humiliation. In particular, the view that the source of China’s misfortunes during this period stemmed from its inability to protect its maritime space from maritime powers. From this experience, Chinese leaders drew the lesson that China’s coastal area was the linchpin of its national security. As a result, during the UNCLOS III negotiations China not only pushed for the recognition of a 12nm territorial sea in opposition to the 3nm proposed by maritime powers like the US and UK, but also a clear distinction of the rights accorded to commercial vs. military vessels in these waters. While Beijing was able to get support on the former, the latter was ultimately shelved due to lack of consensus. Nevertheless, China continued to reiterate its position that the LOSC did not prejudice a coastal state’s right to demand prior notification or approval of military vessels conducting innocent passage after ratifying the LOSC. Perceptions of insecurity, informed by experiences during the Century of National Humiliation, remained the basis of this interpretation.

It is in this context that China leans heavily on the coastal state’s rights components of the LOSC. Beijing holds the position that whereas the right of military vessels to innocent passage was not established, the right of coastal states to make requirements was. From its perspective, the principles of sovereignty, territorial integrity, and security form the basis for the right of coastal states to make such requirements.

The development of the LoS illustrates two patterns: 1) as states become maritime powers, they will promote greater access and rights at sea; 2) maritime powers have played a key role on shaping the LoS over time. However, this pattern has been the product of a very particular pathway of development in the “West” which may not be uniformly applicable to emerging maritime powers like China. Its experience with the Century of National Humiliation has produced an inherent sense of insecurity that shapes the way in which it interprets key concepts like innocent passage. In this context, it is unlikely that China’s growing maritime power will produce a shift in this stance. However, given the role that maritime powers have in shaping the LoS, China’s status may allow it to challenge the dominant interpretation of innocent passage with its own. Furthermore, the fact that dozens of other countries have similar interpretations may bolster this position in coming decades.