There are many countries in international practice that require various restrictions on the passage of foreign warships through their territorial seas. The present Section seeks to analyze state practice with respect to this matter.
There is high tendency among the number of states requiring warships to notify or obtain authorization before entering a coastal state’s territorial sea. During the 1982 Convention many coastal state have attempted to include the provision that the coastal state may require prior notification or authorization for passing through territorial sea.[42] P.56 Kwiatkowska[53] and Jin[55] estimated over 40 and 60 coastal states implement notification or authorisation requirements. P.447.. Jin p.56
هیچ قضیه حقوقی در مورد اطلاع قبلی وجود ندارد در ادمه ضمن خلاصه قسمت زیر برای ورود به قسمت رویه دولتی مناسب است
there is a shortage of case law relating to states arguing over the notification or authorization debate. Indeed, it would be irrational for states to submit the issue to the ICJ for definitive interpretation when the balance is so unsettled. Due to the reluctance of States to bring hard cases to the International Court of Justice and the resulting dearth of international case law to rely on as subsidiary sources of international law, we must revert to international incidents to examine state practice.[53] P.77 [42]p.732
به قضیه حقوقی بین چین و استرالیا اشاره کرده
The ‘ANZAC Day Incident’ between China and Australia in April 2001 involved three Australian warships traversing the Taiwan Straits without requesting permission to enter Chinese territorial waters. China’s formal complaint argued breaches of international and Chinese law while Australia cordially replied it had merely exercised its right of innocent passage. Neither state interpreted the event as harmful to diplomatic relations since the issue represented a ‘long-standing difference… played down’ by both governments.[56]p.78
1.5 The right of innocent passage in national legislation
It has already been observed that the right of innocent passage is widely recognized in conventional and customary law. Nevertheless, since the 1982 Convention contains a more specific definition of the right of innocent passage than the 1958 Convention, it is important to see if, and in which manner, coastal States have incorporated this right in their national legislation. States which have done this are categorized in Table 1. [42] P. 139
Innocent passage is a controversial matter in law of the sea issue, as it will be seen below that there are different views on treating the right of innocent passage in national legislation of coastal states.
One group reproduce the pertinent articles of innocent passage including the list of ‘activities’ in Article 19(2) with some variation, such as Iran, Second, these coastal states Reproduces Article 19(2)(h) of the 1982 Convention verbatim. There are only 4 states such as Trinidad & Tobago, Indonesia, France Bulgaria. Third, incorporating definition of the right of passage without list of activities, such as, China, India, South Africa, Ukraine. Forth, recognizing the right of innocent passage, although some states expressed that this is to be interpreted in conformity with the 1982 Convention, such as Island, United States, United Kingdom. Looking at the table 1 ???? we can obviously understand that there is no equal practice with respect to the rights if innocent passage in national legislation of coastal states.
جدول تنظیم شود
One final point that needs to be noted in regards to state practice, there are various categorizes of State practice on coastal State rights over ships carrying hazardous cargoes. The 1989 Basel Convention stipulated:
“The State of export shall notify, or shall require the generator or exporter to notify, in writing, through the channel of the competent authority of the State of export, the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes.”
2.5 State Practice on the Right of Innocent Passage for Warships
Pursuant to this matter, it is significantly important to pay attention to state practice on the right of innocent passage for warships. in this regard, State practice has been based both on legislation and declarations relating to the 1982 Convention.
گروهی از کشورها برای اجازه یا رضایت برای کشتی های جنگی
During the Third U.N. Conference a group of states
A small but vocal group of states at the Third U.N. Conference, however, sought to make innocent passage a qualified right for warships, contingent on either notification to the coastal state, or a requirement to obtain its consent. This approach implied that warships, by their very nature and irrespective of any objective assessment of the character of their passage, receive a presumption of non-innocent passage. Although states that preferred this outcome did not put the matter to a vote, they continued even in the final session of the Conference to assert their right to restrict warships.[37][57] P.220
میشه بره زیر جدول
In addition to the States mentioned in Table 4, Cape Verde and Romania reserve in their declarations upon signature and confirmed upon ratification of the 1982 Convention, the right ‘to adopt laws and regulations relating to innocent passage of foreign warships’ through the territorial sea. This could imply claims to prior notification or authorization.
Coastal states may be divided in to four separate groupings according to their practices or municipal legislation on the notification or authorization of warships issue.[38] It is clear that the first approach, the opponents of prior notification or authorization of warships are predominantly major naval powers.[42] P.142 This view is prevalent with the United States, the United Kingdom and Australia.[37] P.76 The second and third approach, favored in China as well as many developing coastal states, suggests requiring notification or authorization can sit side-by-side with the doctrine of innocent passage and such regulation is not in breach of LOSC Part II, Section 3.[42] Shao.p65 [53]P.76 Finally, the last one declared totally prohibiting. [42] The approach of some countries will be briefly explained below.
جدول تنظیم شود
1.2.5 China
To China, one of the important considerations in the establishment of its territorial sea is to safeguard its national security. The passage of warships is different from that of commercial ships, because warships are equipped with arms and possess fighting and offensive capabilities. They constitute a potential threat to the security of the coastal state when they are in its territorial sea.[42] P.200
Although the Convention provides that all foreign ships enjoy the right of innocent passage though the territorial sea, it does not say that the coastal state cannot require military vessels to tender prior notification or obtain prior permission. China, as many other nations, has incorporated this view on innocent passage in its domestic legislation.[36] P.205
The 1958 Declaration on China’s Territorial Sea on innocent passage is considered as the first law for the territorial sea of China, the Declaration stated that:
[n]o foreign vessels for military use and no foreign aircraft may enter China’s territorial sea and the air space above it without the permission of the Government of the People’s Republic of China.
In 1992, China adopted the new law which contains several important provisions relating to innocent passage. According to the 1992 Law on the Territorial Sea and the Contiguous Zone (the Territorial Sea Law).
According to article 6 of the Territorial Sea Law, “foreign ships used for military purposes shall be subject to permission of the Chinese government before entering the territorial sea”.[36] Further, China incorporated article 20 the 1982 Convention in its National law, article 7 of the Territorial Sea Law Foreign submarines and other underwater vehicles, when passing through the territorial sea, shall navigate on the surface and show their flag
As a matter of fact, when China ratified the 1982 Convention in 1996, it made the following statement with a view to innocent passage under LOSC Article 310:
“The provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of a coastal State.” [58]
2.2.5 Indonesia
Indonesia is an archipelagic state, the legal system governing over archipelagic state is a little different form other coastal states. Generally, right of navigation in this states exercise in two forms, it is compromise of the right of passage through the designated archipelagic seal lanes and the right of passage outside them.Hasjim Djala, “Indonesia’s Archipelagic Seal Lanes,” in Indonesia beyond the Water’s Edge: Managing an Archipelagic State, ed. Robert Cribb and Michele Ford, 2009, 59–69. P.61 neither Indonesia and Philippines believed that there was the customary right of innocent passage of warships in the territorial sea.[60] P.182 The years before adoption of the 1982 Convention Indonesia had intended to cut off the archipelago to foreign warships or at least require foreign warship to give the prior notification.James Kraska and Raul Pedrozo, International Maritime Security Law (Brill | Nijhoff, 2013). For example, Indonesia had codified on 28 July 1962 the government regulation Number 8 on Innocent Passage of Foreign Vessel through Indonesian Water.[62] p.133 Under Part IV of this Act, military vessel and non-commercial governmental ships were obliged to inform to the Minister-Chief of Navy Staff before entering Indonesian waters or Indonesian internal waters.[63] P.89 if Minister-Chief of Navy Staff were to fix special seal lanes for foreign warship would be able to navigate along the relevant sea lanes without prior notification. However, in case of failing to give prior notification and if any foreign submarine ignored to sail on the surface, according to the regulation, be required to leave Indonesian waters immediately.[64] P.120 After ratification of 1982 Convention in 1985, Hasjim Djala of Indonesian Foreign Office prepared the guideline for implementation of the 1982 Convention. The measures such as readjustment and redefinition of Indonesian baseline and the regime passage and navigation through of archipelagic water and the territorial sea which was provided by the 1960 Act.[65] P.134-135 it should be pointed out, Indonesia seems to treat this such rights as ‘a matter of customary international law’.[63] P.306
3.2.5 Iran
At the Caracas session of the Conference in the summer of 1974, the Iranian delegate stated that the concept of freedom of navigation through straits should not deny the legal nature of the territorial sea, an area normally subject only to innocent passage.[66] [67]
Iran also opposed inclusion of the right of overflight through straits used for international navigation, “since the air space over that portion of the territory of the coastal State was, according to international law, subject to the sovereignty of that State.”[3] [68]
During the last few days of negotiation, Gabon presented a formal amendment to article 21 of the treaty that would allow coastal States to require prior authorization or prior notification for passage of warships through the territorial sea. The new text would add a paragraph to article 21(1), concerning laws and regulations of the coastal State relating to innocent passage. The new provision would afford coastal states “the right to require prior authorization and notification for passage through the territorial sea.” [3] Mr. Momtaz, the delegate from Iran, stated that the coastal State had a responsibility to “preserve the legitimate interests of international navigation in its territorial sea.” This duty, however, should not “be to the detriment of the interests and security of the coastal State,” and therefore Iran supported the amendment to article 21 proposed by Gabon since it reflected Tehran’s longstanding policy to insist on prior authorization for the passage of foreign warships.[69]
Similarly, Iran supported a proposal by Spain near the close of the conference on
April 13, 1983. Spain sought to enhance coastal State control of aircraft flying through international straits, and strengthen the coastal State’s hand in vessel-source pollution enforcement.[70] Three days later, Iran stated in plenary that the right to transit through international straits “should not be allowed to jeopardize the coastal State’s security.” “Passage through the straits must be innocent, in the true sense of the term. Iran would guarantee passage only to vessels that did not pose a threat to its security. It could not give an unconditional guarantee of freedom of navigation, [even through straits that] led to enclosed or semi-enclosed seas.” [71]
Gabon withdrew the draft text in favor of another proposal, co-sponsored by Iran,
that added a reference to “security” after the word “immigration” in article 21(1)(h),
which provides that the coastal State may enact laws to prevent infringement of its
customs, fiscal, immigration, and sanitary laws.[70] Gabon withdrew the proposal only in response to an appeal by the President of the Conference, Ambassador Tommy T. B. Koh of Singapore.
On December 10, 1982, Iran signed the Third United Nations Conference on the Law of the Sea in Montego Bay, Jamaica. Iran, However, promulgated its position “interpretive declaration on the subject of straits” made under article 310 of the treaty.[72]Iran stated that:
“In the light of customary international law, the provisions of article 21, read in association with article 19 (on the Meaning of Innocent Passage) and article 25 (on the Rights of Protection of the Coastal States), recognize (though implicitly) the rights of the Coastal States to take measures to safeguard their security interests including the adoption of laws and regulations regarding, inter alia , the requirements of prior authorization for warships willing to exercise the right of innocent passage through the territorial sea.”
On 20 April 1993, Iran adopted the Act on the Marine Areas of Iran in the Persian Gulf and the Oman Sea. In the Article 5 to 11 the Iranian act has devoted the exercise of and the restriction to the right of innocent passage. Although, the provisions are predominantly similar to the 1982 convention, there are two significant differences.
The most important point in this Act is to contain Exceptions to innocent passage.[73] P.240 In Article 9, Iran has reflected the longstanding policy on prior authorization for the passage of foreign warships. Hence, the Passage of warships through Iranian territorial sea is subject to the prior authorization of the relevant authorities of Iran. It should be noted, in addition to warships includes submarines, nuclear-powered ships and vessels or any other floating objects or vessels carrying nuclear or other dangerous or noxious substances harmful to the environment, through the territorial sea is subject to the prior authorization.
4.2.5 North Korea
Arguably the most extreme form of coastal state attitude involves completely prohibiting foreign warships from entering territorial waters. North Korea has maintained a complete prohibition since 1977 by claiming a 50nm zone of exclusion of all military vessels. It has refused to accede to LOSC. Thus, as well as exceeding customary law on jurisdictional zone widths, it may be regarded as in breach of the customary duties of coastal states (Article 24 for member states) to not ‘hamper’ innocent passage by denying passage altogether (if LOSC may be considered a custom-crystallising treaty, as opposed to custom-creating). On the other hand, if North Korea, as a rogue state in many respects, has maintained a position of persistent objection, any customary law established may be inapplicable to it.[74] P.77
5.2.5 Oman
Under Royal Decree, Oman also recognizes only the right of innocent passage rather than transit passage through Omani territorial seas that are in the Strait of Hormuz, a strait used for international navigation.[42] This requirement is not recognized by the United States, which conducts routine ship, aircraft, and submarine operational assertions (transits) through the Strait. Oman also purports to require prior permission for the conduct of innocent passage by warships, nuclear powered ships, submarines, and ships carrying dangerous substances in the territorial sea. After Oman signed UNCLOS on July 1, 1983, it delivered the following declarations upon ratification on August 17, 1989:
Declaration No. 2, on the passage of warships through Omani territorial waters Innocent passage is guaranteed to warships through Omani territorial waters, subject to prior permission. This also applies to submarines, on condition that they navigate on the surface and fly the flag of their home State.
Declaration No. 3, on the passage of nuclear-powered ships and the like through Omani territorial waters With regard to foreign nuclear-powered ships and ships carrying nuclear or other substances that are inherently dangerous or harmful to health or the environment, the right of innocent passage, subject to prior permission, is guaranteed to the types of vessel, whether or not warships, to which the descriptions apply…[75] p.467.
6.2.5 Pakistan
Pakistan purports to require foreign warships to obtain permission prior to transiting its territorial sea, and foreign supertankers, nuclear powered ships, and ships carrying nuclear or other noxious materials are required to give Pakistan prior notification of transit.[76] [77]P.470
7.2.5 South Korea
The requirement of prior notification is enforced by this country and he justifies this differently, South Korea adopted its Territorial Seas Act 1977 which expressly requires ‘prior notice’ while its Enforcement Decree uniquely adds notification must satisfy three conditions by naming: the ship, its type and official number; the purpose of passage; and finally, the passage route and schedule.21 Thus, the South Korean version of notification may be regarded as more stringent than the Indonesian approach.[76] P.76
8.2.5 The Philippines and Vietnam
The Philippines and Vietnam has also adopted municipal legislation on the issue but has extended the basic authorization approach to require a request be made 30 days in advance of entry and, if this is granted, a secondary notice 48 hours before the warship enters.[42]P.641 [78]P.206Greenfield observes that, while imposing prior permission requirements ‘falls short of total suspension’, in ‘practical terms the result may be the same’.[36] [79] P.76 کتاب/فقط کاورش
هردو منبع در خط چهارم باشند
6. Transit passage
As explained in section 2 there are several types of maritime straits and accordingly several legal regimes of passing through them.[42] P.58 regardless, in this section, state practices with respect of recognition of transit passage this concept will be analysis by different aspects.
Part III of the 1982 Convention establishes a comprehensive legal framework for the regulation of straits used for international navigation. The general provisions of the r6gime are found in Section 1, Articles 34 to 36, covering definitions, limitations and scope of the straits regime.[80] p.121
The right of transit passage was introduced in the Sea-Bed Committee by the ”Soviet Union and the United States”.[81] P.219 during the Caracas Session more detailed proposals were presented by the United Kingdom and some socialist States”.Robertson, “Passage Through International Straits: A Right Preserved in the Third United Nations Conference on the Law of the Sea.” P.819
In their oral statements American delegates underlined that preserving the freedom
of navigation in straits used for international navigation is a sine qua non condition for the acceptance of a 12-mile territorial sea by the United States.[5] P.219
The regime of transit passage in international straits was shaped by several interrelated factors[82] such as the expansion of territorial seas to twelve miles P.530 and the influence of maritime powers.
The United States viewed obtaining the right of transit passage through straits used for international navigation as essential to protect ballistic missile submarine mobility and ensure strategic nuclear security.323
The United States and Japan, along with the USSR, the United Kingdom, and France, constituted the Group of Five major maritime powers (MMP) that formed one of the most influential informal negotiating blocs during the Third United Nations Conference.[83] P.218
1.6 Submarine passage
Even if transit passage affords users significantly greater surface navigation rights than does innocent passage, an important issue, apparently left open by the LOS Convention, is whether transit rights permit submerged submarines to traverse straits.[38] P.71
Article 39 sets forth the duties of ships and aircraft exercising the right of transit passage. It provides that a vessel must proceed without delay, must not threaten or use force against the sovereignty, territorial integrity, or political independence of states bordering straits, and must not violate any of the principles of international law embodied in the Charter of the United Nations.[84] P.403This provision has been criticized because the legal duties provide criteria that are subject to the coastal states’ evaluation and approval. Thus, transit passage is made to appear more as “a species of innocent passage than a high seas freedom.”[16] P.70
No explicit textual provision recognizes a right of submerged transit for submarines. Article 39(1)(c) merely states that ships in transit shall refrain from any activities other than those incident to their normal mode of continuous and expeditious passage. Whatever is normal to the mode of passage for a particular vehicle, presumably, is permitted.[84] P.843
Scholars are divided as to whether Article 39 secures the right of submarines to navigate below the surface. Those who affirm a right of submerged passage point to the explicit requirement imposed by Article 20 that submarines exercising the right of innocent passage operate on the surface, and they suggest that the omission of a similar provision from the articles dealing with transit passage is not the result of mere inadvertence.[5] P.844
Robertson, mentions that with regard to the high seas portion of the Convention: “It has never been contended that the “freedom of navigation” confirmed by article 87. . .does not include the right of submerged navigation for submarines. Yet there is no provision in part VII which explicitly confers that right on submarines.”‘[5] P.844
Professor Reisman argues that, despite the reasonableness of inferring a right of submerged passage from the absence of its prohibition in Article 39, the opposite inference is also possible, especially because such a right would be a “derogation from sovereignty” of the coastal state and thus should have been granted explicitly. [5] P.71
An interpretation of Article 39 permitting submerged transit through straits gives rise to internal contradictions. For example, Article 39(l)(b) recognizes the coastal state’s competence to appraise the contemplated passage for its conformity with the principles of international law set forth in the United Nations Charter. If submerged passage is secret passage, it is unclear how the coastal state can perform that function under subsection (b). [84] P.404 It can be argued that the section appears to be more coherent “if no right of submerged passage is hypothesized.” [16] p.73
Yturriaga believe that, the right of submerged transit has no substantial legal basis and was imposed by the strategic-conscious superpowers”. Besides, he mentions “I cannot agree with those who maintain that the Convention does not recognize submarines the right of submerged navigation through straits.[84] P.190
It is obvious that recognizing of the “transit passage” by the 1982 Convention was far more favorable than innocent passage in the territorial sea for United States. Looking at the political history of the 1982 Convention itself brightly reveals that submerged transit through straits was one of the key pre-conditions that was imposed by superpower for the acceptance of the comprehensive Law of the Sea Convention.[85] P.190
It should be interesting to mention, approximately over 50 proposals submitted to the II Sub-Committee in 1973.[85] p.73 In this connection the eight ”Strait” Strait attempted to modify the regime of straits and keep the innocent passage regime.. On March 27, 1973, these states proposed the draft to the Seabeds Committee. P.93
The preamble of proposal included five basic objectives, the first one states that: “navigation through the territorial sea and through straits used for international navigation should be dealt with as an entity since the straits in question are or form part of territorial seas”. In addition , Martín López in his book mentions Fiji submitted similar proposal, but she changed its position dramatically, “when, together with the United Kingdom, it led a private negotiation group regarding the straits, which drafted what would later become the articles finally included in the UNCLOS”.[81] P.28
During the negotiations, the last attempt to modify transit passage in some way was made by Spain just before the Convention was adopted. The proposed amendments were rejected.[2] P.138
However, nothing is more certain than that the United States, the Soviet Union, and the United Kingdom sought to recognize a fundamental distinction in oceans law. It could be realized from statement of the United States representative in Committee II of the Seabeds Committee on April 2, 1973: