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Today, with the continuous development of navigation technology, the importance of maritime rights and interests of all countries is gradually increasing. For countries such as Djibouti and Oman, which are adjacent to the Straits of Hormuz and Bab el-Mandeb, which are important maritime communication routes, how to deal with the relationship between other countries' claims to exercise the right of innocent passage and the preservation of sovereignty over their territorial waters is a very worthy question.
Important location for Djibouti and Oman
Overview of Djibouti and Oman
(1) Basic overview
The Republic of Djibouti, referred to as Djibouti, is located on the west coast of the Gulf of Aden in northeast Africa, the Bab el-Mandeb Strait, the key point of the Red Sea into the Indian Ocean, bordering Somalia in the southeast, Eritrea in the north, and Ethiopia in the west, southwest and south, with a land boundary of 520 kilometers, a coastline of 372 kilometers, and a land area of 23,200 square kilometers. The strategic location of the Republic of Djibouti is very important, and it has the largest military base of the US military in Africa, the largest military base of the French army overseas and the support base of the Chinese People's Liberation Army.
Djibouti
The Sultanate of Oman, abbreviated as Oman, is a country located in West Asia, on the southeast coast of the Arabian Peninsula, located on the main route from the Persian Gulf to the Indian Ocean, bordering the United Arab Emirates to the northwest, Saudi Arabia to the west, and the Republic of Yemen to the southwest. It is bordered to the northeast and southeast by the Gulf of Oman and the Arabian Sea. The coastline is 1,700 kilometers long and covers an area of 309,500 square kilometers.
Oman
(2) Territorial sea baseline claims
By decree, on 5 August 1985, the Government of Djibouti established a straight baseline around the Seiba Islands, and the blockade line of the Gulf of Tadjura was also regulated in an earlier law, from the straight baseline and the closure line of the Gulf of Tadjura, Djibouti measured its 12 nautical miles as its territorial water, and the baseline it used to measure the width of the territorial sea was the low water standard and the straight baseline and closed line of the bay. By submitting a diplomatic note dated 22 May 1989 to the Government of Djibouti, which provided for the use of a straight baseline connecting appropriate points, as provided for in article 7, paragraph 1, of the United Nations Convention on the Law of the Sea (hereinafter referred to as "the Convention), which allows the method of drawing a baseline measuring the breadth of the territorial sea by means of a straight baseline connecting appropriate points, "where the coastline is deeply indented and cut, or if there are some island edges near the coast", Protest against baseline claims based on the baseline delimitation of this territorial sea will be analysed below and will not be repeated here.
Oman, on the other hand, has a fairly flat coastline and the area where it claims a straight baseline is determined by a line of 43 accurate latitude and longitude coordinate points in accordance with Royal Decree No. 15/81 on Oman's territorial sea and economic zone and Royal Decree No. 38/82 on the application of the system of straight baselines for the delimitation of baselines in territorial seas, internal waters and enclosed waters; In areas where a straight baseline is not claimed, territorial waters are measured from the normal baseline. The point of protest of the United States is Oman's claim that warships need to be allowed to exercise innocent passage before entering Oman's territorial waters, which involves the exercise of the right of innocent passage of warships.
2. Overview of the right of innocent passage
(1) Overview
Article 17 of the Convention provides that "subject to the limitations of this Convention, all States, whether coastal or landlocked, have the right of innocent passage through the territorial sea by their vessels", and this article specifies the right of other States to freely pass through their territorial sea, provided that it is not prejudiced to the peace, good order or security of the coastal State. The right of innocent passage is a widely recognized international practice and a rule of customary international law,
It is further interpreted and regulated in articles 18 and 19 of the Convention. "Innocent" means a voyage that does not impair the order and safety of the coastal State, while "passage" means a navigation through the territorial sea without entering the internal waters, or through the territorial sea for the purpose of entering or exiting the internal waters, and the Convention requires that such navigation must be continuous and rapid, excluding the stopping and anchoring of ships, and excluding berthing places and port facilities. Considering that in reality there are factors beyond the control of man-made, it is permissible to break through the limits of continued and rapid progress when mooring and unanchoring occurs incidentally to the voyage, or when it is necessary to assist persons, ships or aircraft in distress due to force majeure or distress.
The right of innocent passage is in fact a restrictive provision on the exercise of sovereignty over the territorial sea by the coastal State, that is, it increases the obligations of the coastal State, so in order to achieve a balance of rights and obligations, it is necessary to give the coastal State jurisdiction over the corresponding matter. This is specifically elaborated in section III of the Geneva Convention on the Territorial Sea and the Contiguous Zone (hereinafter referred to as the "Convention on the Territorial Sea and the Contiguous Zone") in the relevant provisions on the right of innocent passage.
Generally, jurisdiction in cases occurring on board ships rests with the flag State, but when a ship exercises the right of innocent passage through the territorial sea of the coastal State, the Convention on the Territorial Sea and the Adjacents gives the coastal State the right of innocent passage that "the consequences of the crime involve the coastal State; or the offence is of a character that disturbs the tranquillity of the State or the good order of its territorial waters ..."Criminal jurisdiction in these particular cases. Secondly, the coastal State has the right to protect, i.e. when a ship changes from "harmless" to "non-harmless" during passage, the coastal State has the right to take the necessary measures to prevent its passage in order to protect its territorial sea sovereignty. In addition, the coastal State is empowered to make relevant laws and regulations governing ships exercising the right of innocent passage in accordance with article 17 and other rules of international law. In addition to this, according to article 18 "... Fees are levied on the vessel for the remuneration for a particular service rendered ...", the coastal State is entitled to charge a corresponding fee for a certain range of services.
(2) Ship attributes
According to the three subsections A, B and C of section III of the Convention, the ships covered can be classified into four categories, merchant ships and government ships used for commercial purposes, warships, submarines and other submersibles and special ships.
1. Merchant ships and government ships for commercial use. This is the largest number of ships enjoying the right of innocent passage. The granting of the right of innocent passage to merchant ships or ships used for commercial purposes is a principle recognized in international law. In fact, the right of innocent passage was designed to facilitate commercial exchanges and maritime trade among various countries, so all countries generally recognize the right of merchant ships. It can also be seen from the provisions of subsection B of the Convention that, except in specific circumstances where the criminal jurisdiction of the coastal State is exercised, the general coastal State does not have jurisdiction over merchant ships passing through innonocently.
2. Warships. Although the Convention and the Convention on the Territorial Sea and the Contiguous Zone affirm the right of innocent passage of warships, in actual international exchanges, there is still great controversy over whether warships enjoy the right of innocent passage in territorial waters. After the "Black Navy ship collision incident" in 1988, the United States and the Soviet Union signed a bilateral treaty, the "Joint Interpretation of the Rules of International Law on Innocent Passage", which clearly stipulates that foreign warships enjoy the right of innocent passage. [ ] However, there are still different voices in the international community, such as Oman's requirement that warships must obtain its own permission before they can pass, which will be further interpreted below.
3. Submarines and other submersibles. Article 20 of the Convention stipulates that "in the territorial sea, submarines and other submersibles shall sail on the sea and display their flag", which means that they enjoy the right of innocent passage, but subject to certain restrictions, requiring them to sail on the sea and display the flag in fact to protect the rights and interests of the coastal State. If a country's scientific and technological and military level is not enough to support its discovery of potentially underwater submarines and submersibles, it will not be able to achieve control over its territorial waters for that country, which is not conducive to the protection of its national maritime rights and interests.
4. Special ships. Special ships under the right of innocent passage are "foreign nuclear-powered ships" and "ships carrying nuclear or other inherently dangerous or noxious substances" under article 23 of the Convention. Because of the inherent danger of the substances carried by such ships, the Convention requires them to exercise the right of innocent passage through the territorial sea of a coastal State to hold a specific certificate and to comply with special precautions provided for in the relevant international agreements. Such restrictions on special vessels are mainly intended to prevent as much harm as possible to coastal States if pollution from ships occurs.
(3) Applicable waters
Not only are there differences in the subjects of exercise of the right of innocent passage, but also in the applicable geographical factors. According to the relevant provisions of the Convention, the waters to which the right of innocent passage applies include the territorial sea, strait and archipelagic waters used for international navigation and, under certain conditions, internal waters.
1. Territorial waters. The right of innocent passage in the territorial sea is the earliest and most clearly provided for in article 17 of the Convention. As coastal states' sovereignty over land extended to the sea, the freedom of navigation advocated by Grotius had to be compromised accordingly and turned into the right of innocent passage. As a result of the coordination between maritime freedom and sovereignty over territorial waters, the rationality and legality of the right of innocent passage in territorial waters have been widely recognized by the international community.
2. Straits used for international navigation. In the case of straits of international navigation, the Convention provides in more detail, first of all that the straits to which transit passage is applicable are "between a part of the high seas or exclusive economic zone and another part of the high seas or exclusive economic zone", then, for example, the right of innocent passage applies to straits consisting of an island and a continental part, such as the Strait of Messina, with the exception of a strait between the high seas or part of the exclusive economic zone and the territorial sea of a foreign State, which is located in the territorial sea, The right of innocent passage also applies. The right of innocent passage in both cases cannot be stopped by the coastal State, and in general, the right of innocent passage in straits used for international navigation is relatively special.
3. Archipelago waters. Archipelagic waters are the areas covered by the base of the archipelago connecting the outermost edge of the archipelago. Article 53 of the Convention provides for the right of passage of archipelagic sea lanes, under which sovereignty of the archipelago is restricted and ships of all States enjoy the right of innocent passage, but archipelagic States may suspend such passage in order to protect their national security.
4. Internal water under certain conditions. Internal waters are equivalent in nature to territory and should be areas fully covered by national sovereignty. However, in exceptional cases, the right of innocent passage may also apply to internal waters. According to article 8 of the Convention, "... If a district not previously considered to be an internal water is enclosed as an internal water, there shall be a right of innocent passage provided for in this Convention in such waters. The coastal State's use of straight baselines results in the classification of those that were not originally internal waters, which should allow innocent passage to foreign ships. "This situation is inextricably linked to the way the baselines of the territorial sea are delineated, and the United States and Djibouti have had a dispute over this.
Third, the problem of the right of innocent passage in practice
(i) The issue of the passage of warships - the case of Oman
In the United States Diplomatic Note of 12 August 1991 to the Government of Oman, it was mentioned that "Oman, on 17 August 1989, deposited its instrument of ratification of the 1982 United Nations Convention on the Law of the Sea ... and claims that prior permission is required for warships to exercise the right of innocent passage through Oman's territorial waters ... The United States Government wishes to further recall to the Government of Oman that, with regard to its declarations 2 and 3, all ships, regardless of type or cargo, may exercise the right of innocent passage through the territorial sea and under no circumstances may prior permission or notification be required from the coastal State. Customary international law, as reflected in the 1982 United Nations Convention on the Law of the Sea, also recognizes this right. The Government of the United States stated that its warships had previously operated in Omani territorial waters without prior authorization from the Government of Oman. ”
As can be seen from the above-mentioned diplomatic note submitted by the United States, there are two reasons why the United States does not agree with Oman's requirement to obtain permission before warships can pass. One is that the United States believes that since Oman recognizes the validity of the Convention, it must abide by the relevant provisions of the Convention and allow itself to exercise the right of innocent passage unconditionally. Another reason for this is customary law and practice, first of all international custom, as reflected in the Convention, which recognizes the exercise of the right of innocent passage of warships in Oman's territorial waters; Second, in past interactions, Oman did not require U.S. warships to obtain appropriate permission before exercising the right of innocent passage. This raises the question of whether warships enjoy unconditional right of innocent passage in the territorial waters of coastal States.
At present, the international community has the following attitudes towards this issue: the first is that warships need to be notified in advance when passing through territorial waters, which in fact does not contradict the Convention and is relatively mild; The second is to require warships to obtain permission from littoral states to pass through territorial waters, such as Oman, as mentioned above; The third and fourth are to limit the number of warships and passageways that pass through at the same time, which is also reasonable; The fifth is to require one's own country to provide reciprocal treatment with other countries, granting similar restrictions and freedoms; The last one is completely unrestricted and there are no requirements for the innocent passage of foreign warships.
The reason why there is so much controversy about the innocent passage of warships is because warships are special compared to other types of ships. The passage of warships itself is a threat, and the chance of uncontrollable incidents occurring in peacetime may be less than that of allowing warships to unconditionally exercise the right of innocent passage, but for wartime or two countries with friction, not restricting the right of innocent passage of warships to a certain extent, allowing them to enter their territorial waters invisibly increases the risk of safeguarding national security.
In view of the foregoing, certain conditions should be added to the right of innocent passage of warships, and the view that the coastal State required notification and approval should be accepted. For countries with weak comprehensive national strength or vulnerable to infringement of maritime rights and interests, restricting the passage of foreign warships through their territorial waters can not only prevent individual maritime powers from "bullying others", but also allow sufficient time to respond to strategies under special circumstances to safeguard their territorial sea sovereignty.
(ii) Special ship issues - the Djibouti case
The United States Diplomatic Note of 22 May 1989 to the Government of Djibouti refers to "Djibouti Law No. VII. Resolution 52/AN/78, which requires foreign vessels in possession of nuclear propulsion or transport of nuclear or other radioactive material to notify the authorities of Djibouti in advance of their entry into and transit through the territorial waters of Djibouti ... The United States Government continues to attach importance to the recognized legal right of innocent passage through the territorial sea, which may be exercised by all ships, regardless of their type or cargo, without under any circumstances requiring prior notification from the coastal State ...
The United States Government is also of the view that, as recognized by customary international law and reflected in the 1982 United Nations Convention on the Law of the Sea, the baseline should correspond to the coastal low waterline indicated on the large official national charts, unless exceptional circumstances exist. Straight baselines should only be used where the coastline is deeply concave and cut, or where there is a marginal island near the coast. The position of the US government is that, in the case of Djibouti, the islands of Seba are not marginal islands and do not allow the drawing of a straight baseline, therefore, the baseline must be a low waterline along the coast and mainland of each island ... The United States Government is not prepared to admit any claim that exceeds what is permissible under customary international law. ”[ ]
In the dispute between the United States and Djibouti concerning the right of innocent passage, two issues arose, first, the advance notification of the passage of special vessels through Djibouti's territorial waters, and second, the question of the demarcation of internal waters. According to the above explanation, special ships either use nuclear power themselves, or ships carrying nuclear or toxic substances, once such ships collide or ship damage, it will often bring a series of impacts to coastal countries, such as sea pollution, destruction of animal and plant resources, fisheries, tourism and so on, for coastal countries, the consequences are undoubtedly huge. On the basis of these considerations, it is clearly reasonable for Djibouti to require foreign vessels possessing nuclear propulsion or transporting nuclear or other radioactive material to notify the Djiboutian authorities in advance of their entry into and passage through Djibouti's territorial waters, and that Djibouti does not impose authorization from the authorities in order to enter, does not violate the relevant provisions of the right of innocent passage, and the United States insists on the unconditional right of innocent passage as an evasion of responsibility and irresponsibility.
On the second question, since the United States has not ratified the Convention at present, the United States invokes the relevant provisions of the Convention as a space for discussion on not recognizing the waters it enters as the waters of Djibouti, simply put, the United States wants to enjoy the rights brought by the Convention and does not want to assume corresponding obligations. From this point of view, although the United States invoked the correct basis and the manner in which it describes the demarcation of the baselines of the territorial sea is consistent with the Convention and other international regulations and practices, Djibouti can challenge that the United States has not ratified the Convention.
Secondly, the essence of the second problem is the question of whether other countries enjoy the right of innocent passage due to the difference in the way the baselines of the territorial sea are delineated, resulting in waters that were not originally internal waters becoming internal waters. Although the Convention denies coastal State sovereignty over internal waters, I believe that if such a designation has been accepted by the vast majority of States, then that State has acquired de facto sovereignty over internal waters, and so on, the characterization of waters near the island of Seiba in Djibouti cannot rely solely on the provisions of the Convention and should be dealt with in the light of the actual situation.