By Jerome A. Cohen
Here is a very clear and helpful statement issued by the US 7th Fleet’s public affairs unit in Hawaii. Unlike some immediate media reports, it deals not only with the important innocent passage issue but also the even more often overlooked question of the PRC’s unjustified application of the UNCLOS straight baseline rules. Although not as detailed as a legal text, it is a clear, succinct explanation of the issues at stake.
These are only two of the half dozen or so maritime questions that separate the US and the PRC. It would be good if the Biden administration could initiate bilateral or multilateral meetings with the PRC to try to reach some accommodation on these questions through horse-trading or otherwise.
I am not a law of the sea specialist. Perhaps that is why I have always been sympathetic to the argument that every coastal state should have the right to demand notice from any foreign warship that intends to ply its territorial waters and the right to reject its entry. Yet that is definitely not the UNCLOS rule, and I believe that the US, Russia and other naval powers permit foreign warship entry into their territorial waters so long as the passage is “innocent” as defined by UNCLOS. No notice or permission is required.
I feel differently about the UNCLOS rules that permit foreign air and naval reconnaissance from the further offshore Exclusive Economic Zone of the coastal state. Here I am less sympathetic to the PRC position, and this has been a more dangerous Sino-American disagreement than the innocent passage or straight baseline disputes thus far.
Of course, as China develops a more ambitious and far-reaching navy, it may be open to moderating its dissenting views on these issues. It already reportedly engages in its own EEZ reconnaissance elsewhere that is inconsistent with its claims against the US.
It will be important and interesting to see whether Vietnam and Taiwan react to these recent developments. I also hope that law of the sea experts will expound on this situation.