Research On The Legal System Of Innocent Passage

Legal system of innocent passage is an ancient legal system which is nearly four hundred years in the history of the development process. In the early 17 th century, Gentilis and Grotius believe that "country has jurisdiction over waters adjacent to the coast". In the early 18 th century, Shu Ke Penn quarter wrote " Possession of the sea theory". In the 19 th century, some countries, including Britain, the United States, Russia, France and other countries, their domestic laws prescribe right to rule the coastal waters, and then international society conclude "territorial waters and the adjacent area of the Convention," in 1958. Legal system of innocent passage is developing from germination to maturity and from theory to international practice to customary international law, witnessed the political system’s numerous changes, and witnessed the history of human development. In 1982, "United Nations Convention on the Law of the Sea" make the right of innocent passage which has formed customary international institutionalization. Legal system of innocent passage can ensure the navigation right which is exercised by the State. Legal system of innocent passage will continue to play an important role in the contemporary international order in the oceans.The right of innocent passage is closely contacted with territorial waters. The right of innocent passage produces with the result of two powers which are on behalf of the international community in the struggle of the shift. One power is represents freedom of navigation, which comes from Grotius and became one of the most fundamental principles of international law of order today; another power represent the rights of coastal States to control its coastal strip of water adjacent to the zone, it is actually representative terrestrial sovereignty to the expansion of the ocean. Final results of the two power’s struggle is to establish the right of innocent passage and establish territorial waters legal system, this can ensure the freedom of navigationand also protects the coastal State in its territorial sovereignty and rights.The main purpose of this paper is to introduce the right of innocent passage through the sort of historical context, clearly different characteristics at different stages of development of the right of innocent passage; the main exercise right of innocent passage through detailed analysis, the scope for the object and the right of innocent passage to determine the meaning of the legal concept of right of innocent passage; by comparison with the legal systeam of innocent passage and navigation for the protection of the rights of freedom of navigation system, legal systeam of transit passage and archipelagic sea lanes passage legal systeam, to highlight the features of innocent passage; from the flag and coastal States in the perspective of the rights and obligations under the legal systeam of innocent passage to analyze the exercise of the right of innocent passage. This paper also focuses on the special right of innocent passage of ships, especially the right of innocent passage of warships which is a hot issue in the international community. Finally, this research question was to return to China, China is a party of "United Nations Convention on the Law of the Sea" in 1982, and the China is closely related to legal systeam of innocent passage. this article reviews the current situation of China and the right of innocent passage in modern contemporary Chinese domestic law. The full text is divided into six chapters, a total of one hundred and fifty thousand characters. Important issues covered by the history of innocent passage, the rights and obligations of States under the legal systeam, scope of innocent passage, the right of innocent passage of special ships.Introductory section, this paper introduces the conflict from the old time until today between the international community on behalf of the power of freedom of navigation and coastal control of its forces along the narrow strip of water to carry on. The result of the conflict is the birth of modern systems of territorial waters, and these include the freedom of navigation and protection of the coastal State as the right of innocent passage in the territorial waters of the sovereignty and rights. Subsequently, the author proposes a right of innocent passage exists in the form of international law, that the right of innocent passage existing nternational custom, but also in international treaties. The right of innocent passage in international treaties and international customary is not entirely consistent with the meaning, scope and other aspects. Today in 1982, "United Nations Convention on the Law of the Sea" for the international law of the order foundational document has been basically formed, innocent passage legal system plays an important role in the modern era. However, with the acceleration of the process of globalization and the end of the Cold War, the world situation is constantly evolving, new problems come from the growing field of marine regime of innocent passage to the existing challenges.These challenges include the serious threat of piracy and maritime terrorism, a serious threat to the ship as well as the negative impact of pollution on coastal marine living resources conservation measures brought. Then I wrote this paper introduces the idea and significance of the topic. The author then describes the legal system of innocent passage to study at home and abroad. in general, foreign scholars started early on the issue of the right of innocent passage than domestic scholars, and study the issue with wider range and deeper level. Chinese scholars introduced the legal system of innocent passage in the textbooks of international public law or textbook of international law of the Sea, which addressed the contents of relatively shallow. In addition, studies with legal system of innocent passage by Chinese scholars showing uneven state, some issues are ger particular concerns, and on other issues get rarely cares. Foreign scholars of legal system of innocent passage has gone deep into theoretical level, or more detailed system level. The article uses the literature research, case study research methods, historical analysis.First chapter introduces the history and investigation of right of innocent passage. Article reviews the history and contemporary international law which ladaing the right of innocent passage. Firstly, the article began in the Roman Empire to the timeline, starting from Roman law leads to the relationship between land and sea and land sovereignty to the expansion of the oceans, the system generates foreshadowed the modern territorial waters. Modern system of territorial waters is accompanied by the rise of capitalism to produce, at the same time, limit the right of innocent passage, as well as the sovereign rights of coastal States to protect freedom of navigation in the territorial sea is finalized. Secondly, the article discusses the customary international law with right of innocent passage, the form of right of innocent passage has its time course, not overnight. With respect to international treaties, customary international has advantages and disadvantages. Again, the article discusses the international treaty right of innocent passage. Right of innocent passage in the Second World War has been improved, and its performance is clearly stipulates that the state in 1958 "Convention on the Territorial Sea and adjoining regions", whether coastal or land-locked country, enjoy the right of innocent passage and provides the rights of the coastal State to make laws of right of innocent passage and with the special ships for innocent passage and other issues. 1982 "The United Nations Convention on the Law of the Sea" to develop and improve the provisions on the right of innocent passage "Convention on the Territorial Sea and adjacent area" in 1958 and formed a relatively complete system. The article also show through in the form of a list of the similarities and differences of these two provisions of the Convention in respect of the right of innocent passage. In addition to the law-making treaty prescribe right of innocent passage, contractual provisions of the treaty also prescribe the right of innocent passage, although contractual treaties generally does not make substantial impact to the right of innocent passage, but it can relate to the ship through the territorial sea of the coastal State the concrete implementation of the right of innocent passage. I think this is a viable theory of international law, which also occur in international practice. Finally, this paper describes the national laws of the provisions relating to the right of innocent passage. Most countries in the domestic law of the foreign ships enjoy the right of innocent passage, but not exactly the same right of innocent passage in the range of other aspects.Second chapter focuses on the concept and content of the right of innocent passage. Right of innocent passage is the core of the legal system, but also the key to understanding innocent passage regime. First, the article discusses subject,object and geographic scope of the right of innocent passage. The right of innocent passage is under international law, it may be the only subject of international law subject, rather than the ship itself. Therefore, the object of the right of innocent passage include sovereign states, international organizations and national organization struggle for independence. Specific to a particular ship innocent passage through the foreign territorial sea, which is harmless to the body by the flag state authority aboard ship. The nationality of the vessel is the key legal considerations which connected the flag state and vessel. Ships citizenship system is a system which linked closely with the right of innocent passage, a ship without nationality can not enjoy the right of innocent passage under international law through their nationality. State may grant membership to the ship, so that the ship with the nationality has its actual enjoyment of rights and freedoms, which is given by "United Nations Convention on the Law of the Sea," in 1982. However, different countries set different conditions for granting nationality of the ship. Whether International organizations can grant the ship "nationality" makes it innocent passage coastal territorial sea is decided by the prevail treaty of the international organization. If the treaty of international organizations expressly granted or implied default this right, you can enjoy an international organization right of innocent passage. Ships with the nation’s fight for independence, "nationality" only enjoy the right of innocent passage in matters related to national independence. Object right of innocent passage, which is the object pointed right of innocent passage, is the ship. International treaties are not uniform definition of a ship, the concept of national laws are not the same ship. International Court of Justice involving the problem of the definition of a ship in Denmark v Finland Great Belt easement case in 1991. Right of innocent passage applies geographic scope includes the territorial sea, the ocean water inside straight baselines generated, Strait Islands waters used for international navigation. Secondly, the author analyzes the connotation right of innocent passage. It is divided into the definition of "pass" and the definition of "innocent". The definition of "pass" is through "the formation of through" and "the request of through" to carry out, but the definition of "innocent" mainly through a detailed analysis of the relevant provisions of the 1982 "United Nations Convention on the Law of the Sea". Finally, by comparing the lagal system of innocent passage and other navigation system, which includes free navigation system, as well as national hydrographic regime of transit passage through institutional islands. The article also use three visual comparison table showing the freedom of navigation system, as well as national hydrographic regime of transit passage through the differences and relations between the three legal systems.Third chapter focuses on the rights and obligations of coastal States under the legal system of innocent passage. In the legal order of the ocean established in 1982, "United Nations Convention on the Law of the Sea", the right of innocent passage is one thing, but for the rights of the coastal State under innocent passage is another matter. Convention gives a series of rights to the coastal State under the right of innocent passage of foreign ships, which is to protect coastal states to maintain its sovereignty. Convention imposed obligations to coastal state on innocent passage of foreign ships is to ensure foreign ships to exercise the right of innocent passage without undue influence or violated by the coastal States. First, the coastal State may establish national law on a number of issues of innocent passage through the territorial sea. These issues include the safety of navigation and maritime traffic management, protection of aids and facilities and other facilities or equipment, protection of cables and pipelines, conservation of living marine resources, prevent violation of coastal fisheries laws and regulations, the preservation of the coastal environment, and to prevent reduce and control pollution of the environment by the marine scientific research and hydrographic survey, to prevent violation laws and regulations of coastal customs, fiscal, immigration or sanitary. Second, coastal state enjoy the rights of the development of the coastal sea lanes and prescribe traffic separation schemes. Develop lanes and prescribe traffic separation schemes not only exist in the regime of innocent passage, by far, there are nearly 100 sea routes using traffic separation scheme in the world, traffic separation schemes often appear in international conventions also. Costal state should take into account the recommendations of the competent international organizations, specific ship and waterways on the habit, the special nature of the waterway for international navigation, the frequency of the ship and other factors when they develop specified coastal sea lanes and traffic separation schemes. In addition, the coastal State shall clearly indicate such sea lanes and traffic separation schemes on the chart, and the chart should be duly announced. According to 1973 "Convention on the Prevention of Pollution from Ships", coastal state could develop special purpose channel or other applicable special traffic arrangements to protect and preserve the area and its biological resources in particularly sensitive sea area. Third, coastal State enjoy the right of protection. This means that, as for the protection of national security(including weapons exercises which is necessary), the coastal State may suspend innocent passage of foreign ships in the specific area of its territorial waters in conditions of no discrimination in form or in fact among foreign ships. In addition, when coastal state suffered a non-innocent passage of foreign ships, the coastal State may take the necessary steps in its territorial sea to prevent non-innocent passage. Fourth, the coastal state has jurisdiction over innocent passage ships under certain circumstances. The coastal State shall not exercise criminal jurisdiction on foreign ships through its territorial sea and arrest any person with any crime committed in the ship and conduct any investigation relating to the crime, except in the following situations: the consequences of crime offense coastal state, the offence belongs to disturb the peace or the local good order of the territorial waters, the captain or the flag State diplomatic missions or consular official request local authorities to assist, these are necessary measures against illegal trafficking of narcotic drugs or psychotropic substances. Because foreign ships innocent passing through the territorial sea is not in the jurisdiction of the coastal State in principle, and therefore coastal State should not stop its voyage or change its course for the purpose of exercising civil jurisdiction on a person in the foreign ships through the territorial sea. The coastal State shall not implement or arrest passage ships for the purposes of any civil action, obligation or liability caused by the ship itself through coastal waters voyage or for navigation purposes not in this limit. Finally, coastal States has the rights of taking anti-pollution measures. Costal State enjoy different execution rights according to different pollution situation of innocent passage ships. Under the regime of innocent passage, the coastal State must assume the obligations of no prejudice of innocent passage of foreign ships in the territorial sea, obligations of anti-discrimination and information disclosure.Fourth chapter discusses the rights and obligations of the flag State under the regime of innocent passage. The flag State is the state granting nationality to the flag ship, which has the most intimate law contact with the flag ship. Under international law, the flag State has jurisdiction over its flag ship and the right of protection of the flag ship. Under the regime of innocent passage, the right of the flag State still play a role. At the same time, flag state also assume certain obligations under the regime of innocent passage. First, the article discusses the right of the flag State. The first right is the jurisdiction of flag ship. Flag jurisdiction is to its flag ship, this power includes the flag State can formulate laws and regulations on ship related matters, the flag State can formulate laws and regulations on matters occurred in the ship, flag States can take measures on the ship. The establishment of flag State jurisdiction is function-oriented, and in order to maintain order in the high seas. The jurisdiction vested in the flag State is to ensure that the maritime order and maintain the smooth flow of shipping. The second right is flag protection rights. Flag protection rights is the right of the flag State to implement protection to its vessels from third countries. Concurrence in flag protection right and diplomatic protection may occur. Second, the flag State must assume certain obligations. The first obligation is obligation of valid jurisdiction, wherever the ship in the high seas or in other countries territorial waters, exclusive economic zone and other waters, the ship maintain contact with the State granting its nationality, every country should effectively exercise jurisdiction and control in administrative, technical and social issues to the ship hanging its flag. The second obligation is the obligation of prevention of pollution from ships. The international community began to regulate pollution of the marine through the development of an international convention from the beginning of the 20 th century, and the flag State is imposed obligations of environment pollution prevention. The third obligation is to protect maritime safety, it requires flag States to take the necessary measures to protect their ships and their mariner’s safety. The fourth obligations is obligation of salvage, which requires flag States oblige vessels hanging their flag to rescue encounter danger man found at sea.The fifth chapter is devoted to discuss the right of innocent passage of warships. Whether foreign warships have the right to exercise the right of innocent passage to pass through the territorial sea, has been a controversial issue. Both academia and international practice have had great differences. First, the article describes the legal status of foreign warships on customary international law, and then discusses whether warships innocent passage through the territorial sea has constituted the formation of customary international. Innocent passage through the territorial sea of foreign warships, is neither formed general rule of customary international law nor had the form of international customary law be sure. Therefore, warships innocent passage through the territorial sea has not constituted the formation of customary international. The Corfu Channel case 1949 heard by International Court of Justice involving problems of the warships passage of the territorial sea. Secondly, the article describes the international treaties on foreign warships through the territorial sea. This type of treaties is divided into contractual treaty and law making treaty. Conclusion of "Status of Forces Agreement" and such similar treaties become one of solution ways to solve problem of foreign warships passage the territorial sea. Law-making treaty concerning warships through the territorial sea is mostly "Convention on the Territorial Sea and adjacent area" in 1958 and "United Nations Convention on the Law of the Sea" in1982. The provisions of these two conventions specified the problem of whether warships have right to innocent pass through the territorial sea but they are not very clear provisions, and they had aroused controversy of the international community. In fact, "United Nations Convention on the Law of the Sea" in 1982, has been given foreign warships the right of innocent passage on page 17, but enjoyment of the right of innocent passage of foreign warships under the 1982 "United Nations Convention" does not mean foreign warships can pass through coastal territorial without any restrictions. Finally, the article discusses the right of innocent passage of other special vessels. The first is the innocent passage of submarines. Submarines and other underwater vehicles should sail on the sea and show their flag when they pass through the territorial sea. The second is the innocent passage of nuclear-powered ships. Foreign nuclear-powered ship or ship carrying nuclear or other inherently hazardous toxic substances, should hold a certificate for such ships by international agreements and comply with the provisions of international agreements, especially preventive measures in the exercise of the right of innocent passage through the territorial sea. The third is the innocent passage of a ship carrying highly dangerous substances, ship carrying dangerous or essence toxic substances, should hold a certificate for such ships by international agreements and comply with international special defensive measures under the agreement in the exercise the right of innocent passage through the territorial sea. The fourth is innocent passage of private armed merchant. Merchant has the right of innocent passage without doubt, but whether private armed merchant ships enjoy the right of innocent passage is unclear, it needs further development of international law.The sixth chapter discusses Chinese regime of innocent passage. The first part is the historical investigation of Chinese regime of innocent passage. Before modern time, China’s territorial waters began to suffer a real threat, and one aspect of the threat is the destroy of the regime of innocent passage of territorial sea. This is reflected in the following areas: foreign warships pass through China’s territorial waters without permission, foreign ships escape the Chinese government’s judicial jurisdiction of the territorial sea, foreign ships engaged in illegal activities of measurement when they pass through Chinese territorial waters. However, although there are violations and destruction of innocent passage regime of territorial waters incident occurred in China, but at the time, the Chinese government have the ability to fight back, so in the pre-modern China, territorial waters remained integrity and right of innocent passage regime also basically been respected. After the Opium War, China has begun to enter the era of semi-colonial and semi-feudal society, China was forced to sign a large number of unequal treaties with Western powers, the provisions of these unequal treaties, involving almost all aspects of China’s territorial waters, at this moment, the Chinese regime of innocent passage basically been destroyed. This mainly reflects in: foreign warships sailing in China’s territorial waters randomly, the right of protection of territorial waters has been destroyed by foreign invaders. The government of the Qing Dynasty lost the jurisdiction over territorial waters. During the period of Nationalist Government, the Nationalist Government issued a number of laws and regulations concerning the right of innocent passage. After World War II, China created an upsurge abolishing treaties movement, and we began to gradually abolish the unequal treaties signed with the Western powers. Most of these treaties are relating to the recovery of Chinese sovereignty of territorial waters and innocent passage regime. After the Nationalist government retreated to Taiwan, the legal regime of innocent passage provisions scattered in various laws and regulations in its formulation. Secondly, the article discusses the current regime of innocent passage of the Chinese. We participated in the Third United Nations Conference on the Law of the Sea Conference and stated our position and views on the issue of the right of innocent passage warships and submitted the proposal to the conference. Contemporary Chinese legal regime of innocent passage scattered in all legal documents, such as, " Statement on the territorial waters of the Chinese government " in 1958 ", People’s Republic of China’s Maritime Traffic Safety Law " in 1983, "People’s Republic of China’s territorial waters and adjacent area law" in 1992.etc.