difference in appreciation of Indonesia’s straight archipelagic baselines.
21 Australia
was severely embarrassed and had to formally apologise for these breaches.
22
As regards the latter case, Iran’s run-in every once in a while, with warships
(especially U.S. warships) and even merchant vessels, stems from a difference in
perception of rights and freedoms related to territorial seas and international straits
used for navigation. Iran’s detention of the Marshall Islands-flagged m.v. Maersk
Tigris on 28 April 2015 while transiting the Strait of Hormuz, claiming that the
vessel had violated its territorial waters, put to test the right of transit passage through
straits used for international navigation as also the right of innocent passage in
territorial waters. Even Iran’s subsequent disclosure that the vessel was seized
over a court order requiring payment of US$ 3.6 Million by Maersk Line in damages
to Iranian firm Pars Oil Products Taliyich, the company chartering the m.v. Maersk
Tigris over cargo that was allegedly not delivered,
23 does not alter the breach of
obligations under UNCLOS.
24
If we are to move away from the Persian Gulf in the northern Indian Ocean
towards the Pacific Ocean, the Japanese legal system regarding innocent passage by
foreign vessels as described by Atsuko Kanehara
25 makes for an equally interesting
case. The Japan Coast Guard (JCG) is established for the purposes of among other
tasks preventing, detecting and suppressing violations of law at sea. Enforcement of
laws and regulations at sea, prevention and suppression of crimes at sea, detection
and arrest of criminals at sea comprises part of its main duties. It is the considered
view of the JCG that the Law of the Sea Convention provides a substantive basis for
deciding on “innocence” according to which the agency exercises executive jurisdiction against non-innocent passage of foreign vessels in the territorial sea.
We share Kanehara’s critical views on the Japanese approach emanating from the
White Paper of the Maritime Safety Agency, 1997 which are still valid and prevail to
this day. The paper states that guarding of the territorial sea is required for ensuring
Japanese sovereignty in the territorial sea against the activities of a foreign country
which are prejudicial to the peace, good order or security of Japan. This statement is
perfectly fine. It further adds that territorial sea guarding is a police activity aimed at
surveillance and control of non-innocent passage, and of malfeasance by foreign
vessels in the territorial sea which is also fine. However, these White Papers
consistently juxtapose an “illegal act” and “a non-innocent passage.” “Vessels
21 As an archipelagic State, Indonesia is entitled to draw straight baselines connecting the outermost
points of its archipelago, provided certain criteria are met. While the territorial sea normally extends
12 nautical miles from land, if straight baselines are used it can extend much further—a ship can be
well beyond 12 nautical miles from land and still be within the territorial sea of Indonesia (Bateman
2015, p. 61).
22 Wroe and Bachelard (2014).
23 Al Jazeera (2015, May 7), BBC news (2015, May 7).
24 UNLCOS Article 44 prohibits the hampering or suspension of transit passage by coastal nations.
25 Kanehara (1999), pp. 90–110.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
231
21 Australia
was severely embarrassed and had to formally apologise for these breaches.
22
As regards the latter case, Iran’s run-in every once in a while, with warships
(especially U.S. warships) and even merchant vessels, stems from a difference in
perception of rights and freedoms related to territorial seas and international straits
used for navigation. Iran’s detention of the Marshall Islands-flagged m.v. Maersk
Tigris on 28 April 2015 while transiting the Strait of Hormuz, claiming that the
vessel had violated its territorial waters, put to test the right of transit passage through
straits used for international navigation as also the right of innocent passage in
territorial waters. Even Iran’s subsequent disclosure that the vessel was seized
over a court order requiring payment of US$ 3.6 Million by Maersk Line in damages
to Iranian firm Pars Oil Products Taliyich, the company chartering the m.v. Maersk
Tigris over cargo that was allegedly not delivered,
23 does not alter the breach of
obligations under UNCLOS.
24
If we are to move away from the Persian Gulf in the northern Indian Ocean
towards the Pacific Ocean, the Japanese legal system regarding innocent passage by
foreign vessels as described by Atsuko Kanehara
25 makes for an equally interesting
case. The Japan Coast Guard (JCG) is established for the purposes of among other
tasks preventing, detecting and suppressing violations of law at sea. Enforcement of
laws and regulations at sea, prevention and suppression of crimes at sea, detection
and arrest of criminals at sea comprises part of its main duties. It is the considered
view of the JCG that the Law of the Sea Convention provides a substantive basis for
deciding on “innocence” according to which the agency exercises executive jurisdiction against non-innocent passage of foreign vessels in the territorial sea.
We share Kanehara’s critical views on the Japanese approach emanating from the
White Paper of the Maritime Safety Agency, 1997 which are still valid and prevail to
this day. The paper states that guarding of the territorial sea is required for ensuring
Japanese sovereignty in the territorial sea against the activities of a foreign country
which are prejudicial to the peace, good order or security of Japan. This statement is
perfectly fine. It further adds that territorial sea guarding is a police activity aimed at
surveillance and control of non-innocent passage, and of malfeasance by foreign
vessels in the territorial sea which is also fine. However, these White Papers
consistently juxtapose an “illegal act” and “a non-innocent passage.” “Vessels
21 As an archipelagic State, Indonesia is entitled to draw straight baselines connecting the outermost
points of its archipelago, provided certain criteria are met. While the territorial sea normally extends
12 nautical miles from land, if straight baselines are used it can extend much further—a ship can be
well beyond 12 nautical miles from land and still be within the territorial sea of Indonesia (Bateman
2015, p. 61).
22 Wroe and Bachelard (2014).
23 Al Jazeera (2015, May 7), BBC news (2015, May 7).
24 UNLCOS Article 44 prohibits the hampering or suspension of transit passage by coastal nations.
25 Kanehara (1999), pp. 90–110.
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231