6 Maritime Counter-Proliferation of Weapons …
97
As the main actors in the ocean are ships and vessels, the criminal jurisdiction
on private activities at sea will be examined below, from the perspective of the
jurisdiction of ships in territorial seas or on the high seas.
6.2.1 Innocent Passage in Territorial Seas and Criminal
Jurisdiction
According to the United Nations Convention on the Law of the Sea (UNCLOS),
ships of all states enjoy the right of innocent passage through territorial seas (Art. 17).
Passage, in this context, is the navigation for the purpose of travelling the territorial
seas 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 a roadstead
or port facility (Art. 18, para. 1). Additionally, the navigation should be continuous
and expeditious (para. 2). The passage is innocent as long as it is not prejudicial to
the peace, good order, or security of the coastal state (Art. 19, para. 1), and it shall
not hamper the innocent passage of foreign ships (Art. 24, para. 1). The UNCLOS
enumerates the activities considered as not innocent passage as follows (Art. 19,
para. 2)
6 :
Type 1: Activities prejudicial to the peace and security of the coastal state
(a) any threat or use of force, (b) any exercise or practice with weapons of any kind, (c) any
act aimed at collecting information to the prejudice of the coastal state, and (d) any act of
propaganda aimed at affecting the defense or security of the coastal state, (e) the launching,
landing or taking on board of any aircraft, and (f) the launching, landing or taking on board
of any military device;
Type 2: Activities prejudicial to good order of the coastal state
(g) violations of the customs, fiscal, immigration or sanitary laws and regulations, (h) any
act of willful and serious pollution, (i) any fishing activities, (j) the carrying out of research
or survey activities and (k) any act aimed at interfering with any systems of communication,
etc.;
Type 3: Other
(l) any other activity not having a direct bearing on passage.
The coastal states have certain rights of protection to prevent passage that is not
innocent in its territorial sea (Art. 25, para. 1). Furthermore, without discrimination
in form or among foreign ships, it may temporarily suspend the innocent passage of
foreign ships in specified areas of its territorial sea, if this suspension is essential for
the protection of its security (para. 3). Some laws and regulations relating to the innocent passage under Article 21 of the UNCLOS have been adopted in Japan. However,
as there are no comprehensive laws and regulations on non-innocent passage, it has
6 Japan Maritime Promotion Center and Study Group of International Maritime Matters (eds.), Law
of the Sea and the Passage of Ships (Kaiyoho to Senpaku no Tsuko) (2002), pp. 29–30 (in Japanese).
97
As the main actors in the ocean are ships and vessels, the criminal jurisdiction
on private activities at sea will be examined below, from the perspective of the
jurisdiction of ships in territorial seas or on the high seas.
6.2.1 Innocent Passage in Territorial Seas and Criminal
Jurisdiction
According to the United Nations Convention on the Law of the Sea (UNCLOS),
ships of all states enjoy the right of innocent passage through territorial seas (Art. 17).
Passage, in this context, is the navigation for the purpose of travelling the territorial
seas 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 a roadstead
or port facility (Art. 18, para. 1). Additionally, the navigation should be continuous
and expeditious (para. 2). The passage is innocent as long as it is not prejudicial to
the peace, good order, or security of the coastal state (Art. 19, para. 1), and it shall
not hamper the innocent passage of foreign ships (Art. 24, para. 1). The UNCLOS
enumerates the activities considered as not innocent passage as follows (Art. 19,
para. 2)
6 :
Type 1: Activities prejudicial to the peace and security of the coastal state
(a) any threat or use of force, (b) any exercise or practice with weapons of any kind, (c) any
act aimed at collecting information to the prejudice of the coastal state, and (d) any act of
propaganda aimed at affecting the defense or security of the coastal state, (e) the launching,
landing or taking on board of any aircraft, and (f) the launching, landing or taking on board
of any military device;
Type 2: Activities prejudicial to good order of the coastal state
(g) violations of the customs, fiscal, immigration or sanitary laws and regulations, (h) any
act of willful and serious pollution, (i) any fishing activities, (j) the carrying out of research
or survey activities and (k) any act aimed at interfering with any systems of communication,
etc.;
Type 3: Other
(l) any other activity not having a direct bearing on passage.
The coastal states have certain rights of protection to prevent passage that is not
innocent in its territorial sea (Art. 25, para. 1). Furthermore, without discrimination
in form or among foreign ships, it may temporarily suspend the innocent passage of
foreign ships in specified areas of its territorial sea, if this suspension is essential for
the protection of its security (para. 3). Some laws and regulations relating to the innocent passage under Article 21 of the UNCLOS have been adopted in Japan. However,
as there are no comprehensive laws and regulations on non-innocent passage, it has
6 Japan Maritime Promotion Center and Study Group of International Maritime Matters (eds.), Law
of the Sea and the Passage of Ships (Kaiyoho to Senpaku no Tsuko) (2002), pp. 29–30 (in Japanese).