22
S. Sakamoto
normal baselines (Article 2). Article 2, paragraph 1, of the 1996 Law on Territorial
Waters provides that the baseline shall be the low-water line, the straight baseline
and the straight line drawn across the mouth or within a bay, or across the mouth of
a river. Straight baselines referred to in the preceding paragraph shall be prescribed
by Cabinet Order, in accordance with Article 7 of UNCLOS. Furthermore, Article
3 of the 1996 Law on Territorial Waters provides that: “The laws and regulations
of Japan (including penal provisions) shall apply with respect to the execution of
official duties by public officials of Japan in relation to hot pursuit from within the
internal waters or the territorial sea of Japan undertaken in accordance with Article
111 of UNCLOS and the conduct obstructing such execution.” This provision makes
possible the extraterritorial application of enforcement laws, such as Japan’s Code of
Criminal Procedure, Coast Guard Act, or Customs Law, as well as the penal provisions for obstructive behaviour. In addition, Article 4 of the 1996 Law on Territorial
Waters establishes the contiguous zone as a zone in which Japan can take the necessary measures to prevent or punish infringement of its customs, fiscal, immigration,
or sanitary laws and regulations within its territory in accordance with Article 33,
paragraph 1 of UNCLOS.
17 Article 5 of the 1996 Law on Territorial Waters provides
that “the laws and regulations of Japan shall apply with respect to the execution
of official duties by public officials of Japan in the contiguous zone in relation to
measures prescribed in paragraph 1 of the preceding article (including the execution of official duties in relation to hot pursuit from within the contiguous zone
pertaining to said execution of official duties undertaken in accordance with Article
111 of UNCLOS) and the conduct obstructing such execution.” On the other hand,
however, the designated areas mentioned in the 1977 Law on Territorial Waters were
maintained in the 1996 Law on Territorial Waters.
Strictly speaking, it follows, therefore, that there is no ‘international strait’ in
which the right of transit passage applies in Japan, given that in international straits
less than 24 nautical miles in width, Japan adopts a 3 nautical mile territorial sea and
leaves the remaining part of the strait as international waters. Therefore, under this
system, foreign vessels can enjoy freedom of navigation in portions of designated
areas considered international waters, while enjoying the right of innocent passage
within the territorial sea portions of the designated areas. In other words, foreign
vessels only have the right of innocent passage—not of transit passage—in Japanese
straits.
The Japanese regime under which foreign vessels within the territorial waters
of Japan are regulated arises through a patchwork of separate laws, such as Act on
Regulation of Fishing Operations by Foreign Nationals, the Immigration Control and
Refugee Recognition Act, and the Law on Navigation of Foreign Ships through the
Territorial Sea and International Waters. This is due to the fact that Japan needs to
respect the interests protected by each of these laws. Consequently, there is no single
piece of Japanese legislation that regulates foreign vessel activities within Japan’s
territorial waters in an integrated manner centred on Japan’s sovereignty over its
territorial waters. For Japan, its territorial waters are not only a part of its sovereign
17 It enables Japanese Government to apply its laws and regulations in its contiguous zone.
S. Sakamoto
normal baselines (Article 2). Article 2, paragraph 1, of the 1996 Law on Territorial
Waters provides that the baseline shall be the low-water line, the straight baseline
and the straight line drawn across the mouth or within a bay, or across the mouth of
a river. Straight baselines referred to in the preceding paragraph shall be prescribed
by Cabinet Order, in accordance with Article 7 of UNCLOS. Furthermore, Article
3 of the 1996 Law on Territorial Waters provides that: “The laws and regulations
of Japan (including penal provisions) shall apply with respect to the execution of
official duties by public officials of Japan in relation to hot pursuit from within the
internal waters or the territorial sea of Japan undertaken in accordance with Article
111 of UNCLOS and the conduct obstructing such execution.” This provision makes
possible the extraterritorial application of enforcement laws, such as Japan’s Code of
Criminal Procedure, Coast Guard Act, or Customs Law, as well as the penal provisions for obstructive behaviour. In addition, Article 4 of the 1996 Law on Territorial
Waters establishes the contiguous zone as a zone in which Japan can take the necessary measures to prevent or punish infringement of its customs, fiscal, immigration,
or sanitary laws and regulations within its territory in accordance with Article 33,
paragraph 1 of UNCLOS.
17 Article 5 of the 1996 Law on Territorial Waters provides
that “the laws and regulations of Japan shall apply with respect to the execution
of official duties by public officials of Japan in the contiguous zone in relation to
measures prescribed in paragraph 1 of the preceding article (including the execution of official duties in relation to hot pursuit from within the contiguous zone
pertaining to said execution of official duties undertaken in accordance with Article
111 of UNCLOS) and the conduct obstructing such execution.” On the other hand,
however, the designated areas mentioned in the 1977 Law on Territorial Waters were
maintained in the 1996 Law on Territorial Waters.
Strictly speaking, it follows, therefore, that there is no ‘international strait’ in
which the right of transit passage applies in Japan, given that in international straits
less than 24 nautical miles in width, Japan adopts a 3 nautical mile territorial sea and
leaves the remaining part of the strait as international waters. Therefore, under this
system, foreign vessels can enjoy freedom of navigation in portions of designated
areas considered international waters, while enjoying the right of innocent passage
within the territorial sea portions of the designated areas. In other words, foreign
vessels only have the right of innocent passage—not of transit passage—in Japanese
straits.
The Japanese regime under which foreign vessels within the territorial waters
of Japan are regulated arises through a patchwork of separate laws, such as Act on
Regulation of Fishing Operations by Foreign Nationals, the Immigration Control and
Refugee Recognition Act, and the Law on Navigation of Foreign Ships through the
Territorial Sea and International Waters. This is due to the fact that Japan needs to
respect the interests protected by each of these laws. Consequently, there is no single
piece of Japanese legislation that regulates foreign vessel activities within Japan’s
territorial waters in an integrated manner centred on Japan’s sovereignty over its
territorial waters. For Japan, its territorial waters are not only a part of its sovereign
17 It enables Japanese Government to apply its laws and regulations in its contiguous zone.