At U.N. Sea-Bed Committee
No Superpowers’ Control of the Seas Is Allowed
[This article is reprinted from Peking Review, #33, Aug. 18, 1972, pp. 13-15.]
Following are excerpts from the speech of Shen Wei-liang, Chinese Representative to the United Nations Sea-Bed Committee, on passage through straits at the meeting of Sub-Committee Two on July 24. Title and sub-titles are ours.
ON the right of passage through straits within the territorial seas of coastal states, Representative Shen Wei-liang pointed out, “Everybody understands that territorial seas are different from the high seas. Every state in the world has the right to define the extent of its territorial seas, and that is its sovereign right. Even if straits within the territorial seas of coastal states are often used for international navigation, this fact does not change their status of territorial seas into that of the high seas. Permitting innocent passage is of course not closing the straits. It merely requires that foreign ships, while passing through the straits, should not impair the peace, good order and security of the coastal states and should observe their laws and regulations. Prior consent should be obtained before foreign warships and military aircraft may pass. We hold that these requirements are entirely justified and reasonable. In advocating ‘freedom of transit’ and ‘freedom of overflight’ for foreign ships and planes, whether civilian or military, through straits within the territorial seas of coastal states, the superpowers are seeking to treat territorial seas as the high seas in order to serve their purpose of maritime hegemony.”
U.S. Attitude Changes
He said, “Before World War II, the United States acknowledged that foreign warships had no right of free transit through the territorial seas of other countries. In 1910, the former U.S. Secretary of State Elihu Root stated that foreign warships might not pass without consent into the zone (the territorial waters) because they threatened.” But “after World War II, the United States intensified its expansion to the seas and oceans. It sent out great numbers of warships, nuclear-powered submarines and military planes, and established numerous naval bases all over the world in an attempt to control the seas and oceans. To meet the needs of its policy of expansion and aggression, the United States changed its attitude on the question of the right of passage through territorial seas. At the 1958 Geneva Conference on the Law of the Sea the U.S. delegate spoke strongly in favour of the ‘innocent passage’ of warships through the territorial seas of other countries without the latter’s prior consent.”
“On January 20, 1960, while testifying before the U.S. Senate Committee on Foreign Relations,” the Chinese Representative noted, “the President of the U.S. Delegation to the 1958 law of the sea conference said, ‘Our navy would like to see as narrow a territorial sea as possible in order to preserve the maximum possibility of deployment, transit, and manoeuvrability, on and over the high seas, free from the jurisdictional control of individual states.’ In a foreign policy report issued in February 1972, the U.S. Government asserted in an even more blatant way that ‘the United States relies on the seas to meet its global responsibilities. Our security, and that of our friends, depends upon freedom of navigation and overflight of the high seas, and on free movement through and over international straits.’ In short, the United States wants to treat the territorial seas of other countries as the high seas and demands the right of free transit through straits within the territorial seas of coastal states. It was guided by this thought that the United States drafted the articles on straits it submitted to the Sea-Bed Committee in July 1971.”
The Soviet Union Follows in U.S. Footsteps
Referring to the attitude of the Soviet Union on this question in the past, the Chinese Representative said, “For a long time in the past the Soviet Union adhered to the principles of innocent passage and prior consent as regards the question of the right of passage through straits within territorial seas. Take for instance the Corfu Channel case dealt with by the International Court of Justice in 1949. The then Soviet judge Krylov explicitly pointed out that foreign warships were different from commercial ships for they had no right of passage through the territorial seas of other states. He also held that in the absence of rules prescribed in a special convention, the right to regulate passage through straits belonged to the coastal states.
“During the discussions on the Convention on Territorial Sea and Contiguous Zone at the 1958 Geneva Conference on the Law of the Sea, the Soviet delegate Nikolaev stated: ‘In the exercise of its sovereignty each coastal state has the right to subject the passage of foreign warships in its territorial waters to an application for prior authorization.’
“What is more noteworthy, the Soviet Government made the following reservation with respect to article 23 (rules applicable to warships) of the 1958 Convention on Territorial Sea and Contiguous Zone: ‘The Government of the U.S.S.R. considers that a coastal state has the right to establish procedures for the authorization of the passage of foreign warships through its territorial waters.’ Up to this day that reservation is still printed in a United Nations document of 1972.
“The 1960 regulations for the defence of the state frontier of the Soviet Union provides: foreign non-military vessels shall enjoy the right of innocent passage through the territorial waters of the U.S.S.R.; foreign warships shall pass through the territorial waters subject to the prior authorization of the Government of the U.S.S.R. The 1967 U.S.S.R. rules for the visits by foreign warships in territorial waters and ports of the U.S.S.R. stipulates that visits by foreign warships in territorial waters of the U.S.S.R. shall be subject to the authorization of the Government of the U.S.S.R., and that authorization shall be requested not later than 30 days before the date of the proposed visit. It was on the grounds of these rules and regulations that in August 1967 two U.S. coastguard ships were refused passage through the Vilkitsky Straits that are within the Soviet territorial waters.”
Representative Shen Wei-liang pointed out, “However, in his statement on March 24, 1972, the Soviet delegate made a 180-degree about-face from the original position of his government by trumpeting with all his might for ‘freedom of transit’ through straits. He said that freedom of transit through international straits is ‘the principle generally recognized in international law and international practice,’ and that, without freedom of transit through the straits that were not regulated by an international convention, ‘the realization of freedom of the high seas is practically impossible.’ In line with these assertions, one may ask whether the Soviet Government is ready to open straits within Soviet territorial waters to all other countries and allow warships of all countries freedom of transit. The answer is ‘no,’ for the Soviet delegate added that ‘the extention of territorial waters to 12 nautical miles should not of itself lead to the change of the legal status of a considerable number of international straits.’ It transpires that the Soviet Delegation stands for the maintenance of the status quo. In other words, straits of the Soviet Union, which were declared closed to free transit by the Soviet Government on the basis of its 12-mile territorial waters limit, will remain closed to free transit. But if other states claim jurisdiction over straits on the strength of the 12-mile territorial waters limit, that was impermissible, for it would be regarded as changing the status quo, violating the ‘principle generally recognized in international law and international practice,’ and undermining ‘freedom of the high seas.’ This is acting just like the magistrates in an ancient fable, who allow themselves to burn down houses while forbidding the common folk to light lamps. This is in effect to say that you have no freedom of transit through my straits, but I must have freedom of transit through your straits. This is utterly absurd, and nothing but hegemonic behaviour.”
What This Change Means
Shen Wei-liang went on to say, “It is ironical that at the 1958 Geneva Conference on the Law of the Sea the Soviet Union opposed the U.S. stand for ‘the passage of warships in territorial waters as a matter of right.’ Quoting the U.S. delegate as having recognized at the 1930 Hague International Law Codification Conference that the passage of warships in territorial waters was only a ‘gesture of international courtesy’ and not a right, the Soviet delegate Tunkin pointed out then the change of attitude on the part of the United States. But in 1972, it is the turn of the Soviet Union to make a similar change by following in the footsteps of the United States. The Soviet Union, which in 1958 was opposed to such a U.S. stand, now asserts, through its delegation, that the U.S. proposal of July 1971 for the freedom of transit of ships and planes through international straits ‘can serve as the basis of articles on straits.’ This only shows that the Soviet Union is following the example of the United States, and attempting to become another hegemonic sea power.”
He pointed out, “The 56 countries, which constitute a majority in the Sea-Bed Committee, have set forth their position on the question of straits in the list of subjects and issues concerning the law of the sea, which they have jointly put forward. The demand of the two superpowers for freedom of transit through straits within the territorial waters of coastal states is unacceptable because it denies the sovereignty of the coastal states.”
The Chinese Representative emphasized, “We hold that straits within territorial waters, whether or not they are often used for international navigation, should be subjected to regulation by the coastal states concerned. Foreign commercial ships may have innocent passage through them but must observe the relevant laws and regulations of the coastal states. Foreign warships must obtain prior authorization before they can pass through straits within the territorial waters of coastal states.”
In conclusion, he said, “We hold that a fair and reasonable solution to this question should be sought by all countries in accordance with the principles of mutual respect for sovereignty and territorial integrity, mutual non-aggression and non-interference in each other’s internal affairs, and that the hegemony of the superpowers trying to partition and control the seas must be firmly opposed.”