98
H. Banzai
been challenging to manage matters of the rights of protection accurately to prevent
passage that is not innocent in Japan’s territorial sea.
7
The criminal jurisdiction of a coastal state may only be exercised on board a
foreign ship passing through its territorial sea to make arrests or conduct investigations in connection with any crime committed on board the ship during its innocent
passage in the following cases (Art. 27, para. 1):
(a) if the consequence of the crime extends to the coastal state,
(b) if the crime is of a kind to disturb the peace of the country or the good order of
the territorial sea,
(c) if the assistance of the local authorities has been requested by the master of the
ship or by diplomatic agent or consular officer of the flag state,
(d) if such measures are necessary for the suppression of illicit traffic in narcotic
drugs or psychotropic substance.
The local authorities have due regard in the interests of navigation to consider
whether or in what manner an arrest should be made (para. 4).
8
Even if the sovereignty of a coastal state extends to the territorial sea as a part
of its territory, foreign ships under the jurisdiction of a flag state can enjoy a wide
range of interests of navigation ‘to accomplish freedom of trade’.
9 In other words,
the coastal state can be allowed to exercise criminal jurisdiction on foreign ships
only in limited cases explicitly permitted by UNCLOS that have prior jurisdiction in
the flag state. In a series of provisions in the UNCLOS on the territorial sea, there is
no specific stipulation on terrorism and the transport of WMD. However, the coastal
state may take necessary steps to prevent the passage of a foreign ship when it would
lose the nature of innocence because the proliferation of WMD could be considered
to prevent its peace and security. Whether this interpretation of the UNCLOS is
acceptable is examined below.
6.2.2 Freedom of Navigation on the High Seas and Criminal
Jurisdiction
Among the uses of the high seas, navigation is of great importance because the
guarantee of maritime traffic is essential for achieving the common interests of the
international community. This is the background of the principle that the interdiction
of foreign ships on the high seas is prohibited. However, if there is no authority on
the high seas to exercise power on ships, the high seas would become disorderly. To
prevent this situation, a state, which flag ships are technically representing during
7 S. Sakamoto, Japan’s Maritime Policy and the Law of the Sea (Nihon no Kaiyo Seisaku to Kaiyoho)
(2018), pp. 32–33 (in Japanese).
8 Japan Maritime Promotion Center and Study Group of International Maritime Matters, supra note
6, pp. 37–38.
9 Y. Tanaka, The International Law of the Sea (2012), p. 85.
H. Banzai
been challenging to manage matters of the rights of protection accurately to prevent
passage that is not innocent in Japan’s territorial sea.
7
The criminal jurisdiction of a coastal state may only be exercised on board a
foreign ship passing through its territorial sea to make arrests or conduct investigations in connection with any crime committed on board the ship during its innocent
passage in the following cases (Art. 27, para. 1):
(a) if the consequence of the crime extends to the coastal state,
(b) if the crime is of a kind to disturb the peace of the country or the good order of
the territorial sea,
(c) if the assistance of the local authorities has been requested by the master of the
ship or by diplomatic agent or consular officer of the flag state,
(d) if such measures are necessary for the suppression of illicit traffic in narcotic
drugs or psychotropic substance.
The local authorities have due regard in the interests of navigation to consider
whether or in what manner an arrest should be made (para. 4).
8
Even if the sovereignty of a coastal state extends to the territorial sea as a part
of its territory, foreign ships under the jurisdiction of a flag state can enjoy a wide
range of interests of navigation ‘to accomplish freedom of trade’.
9 In other words,
the coastal state can be allowed to exercise criminal jurisdiction on foreign ships
only in limited cases explicitly permitted by UNCLOS that have prior jurisdiction in
the flag state. In a series of provisions in the UNCLOS on the territorial sea, there is
no specific stipulation on terrorism and the transport of WMD. However, the coastal
state may take necessary steps to prevent the passage of a foreign ship when it would
lose the nature of innocence because the proliferation of WMD could be considered
to prevent its peace and security. Whether this interpretation of the UNCLOS is
acceptable is examined below.
6.2.2 Freedom of Navigation on the High Seas and Criminal
Jurisdiction
Among the uses of the high seas, navigation is of great importance because the
guarantee of maritime traffic is essential for achieving the common interests of the
international community. This is the background of the principle that the interdiction
of foreign ships on the high seas is prohibited. However, if there is no authority on
the high seas to exercise power on ships, the high seas would become disorderly. To
prevent this situation, a state, which flag ships are technically representing during
7 S. Sakamoto, Japan’s Maritime Policy and the Law of the Sea (Nihon no Kaiyo Seisaku to Kaiyoho)
(2018), pp. 32–33 (in Japanese).
8 Japan Maritime Promotion Center and Study Group of International Maritime Matters, supra note
6, pp. 37–38.
9 Y. Tanaka, The International Law of the Sea (2012), p. 85.