By Bahman Aghai Diba, PhD International Law of the Sea
The recent incident in the Persian Gulf between the US and Iran navies has once again renewed the issue of innocent passage for the warships in the maritime territories at the time of peace (of course, the law of war is different). The non-military ships have normally the right of innocent passage in the territorial sea of other states. This is clearly stated in various sources of the international laws of the Sea, especially the 1982 UN Convention of the Law of the Sea dated 1982 known as Montego Bay Treaty. The US has not signed this treaty. Iran has signed but not ratified it. It should be noted that according to the law of the sea, the Islands (like the Farsi Island in the recent case) have their own maritime territories around them which is almost similar to the regulations about the mainland of the states.
Iran and the US have been active participants in the Third United Nations Conference on the Law of the Sea which culminated in 1982 Convention. Iran is under commitment not to act against its provisions (1). As far as the US is concerned, noting that many parts of the 1982 convention have either entered the national laws or the customary practices of states, the US tries not to do anything contrary to the convention. The US has issued a declaration that it believes the warships have the right of innocent passage but aside from Russia, this is not confirmed by large number of countries or international specialized organizations. In fact, in the Persian Gulf, some countries which previously had supported the idea of innocent passage of the warships or remained silent about it (including the Saudi Arabia) in the light of more recent security considerations have been inclined to asking the innocent passage of warships to be used after prior authorization of the coastal state. (2)
Iranian declaration on the signing of the convention, says:" ... In the light of customary international law, the provisions of article 21, read in association with article 19 (on the Meaning of Innocent Passage) and article 25 (on the Rights of Protection of the Coastal States), recognize (though implicitly) the rights of the Coastal States to take measures to safeguard their security interests including the adoption of laws and regulations regarding, inter alia , the requirements of prior authorization for warships willing to exercise the right of innocent passage...”(3)
The passage of the naval units from the territorial sea or in others words, extending the right of innocent passage to the warships was a controversial issue during the Third UN Conference on the Law of the Sea and after the conclusion of the convention. The military issues were not in the agenda of the Third UN Conference on the Law of the Sea. However, during the sessions of the conference there were efforts to include subjects like peaceful use of the oceans but they were not seriously followed. Therefore, the 1958 Convention on the territorial Sea and the 1982 convention have not clear regulations about the passage of the naval units from the territorial sea. (4)
During the Third UN Conference on the Law of the Sea, Iran opposed several times the US position regarding the innocent passage of warships from maritime territories. Iran, as it is stated in its law and the statement on the signing of the 1982 convention, believes that passage of naval ships of other states from the territorial waters is dependent on prior notification and by observance of the innocent passage requirements. Some other countries that have the same policy are Egypt, Oman and Yemen. According to the 20 April 1993 Iranian law of the maritime territories, the innocent passage of warships requires prior authorization.
Bahman A Diba, PhD International Law of the Seas, is the author of several books. His latest books were published in 2011:
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