Originally posted by Rolex
http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm
Hi Widewing,
Yes, both parties have obligations and rights under the rules. That right to transit passage is based on ships following their obligations, though. If a ship is not following the rules for innocent passage, it can be denied passage.
I was using Part III. Article 45 in Part III, refers back to Part II for the definition of innocent passage.
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"SECTION 3. INNOCENT PASSAGE
Article45
Innocent passage
1. The regime of innocent passage, in accordance with Part II, section 3, shallapply in straits used for international navigation:"
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And that Part II, section 3 says this [Note 2. (e) and Article 20]:
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"Article19
Meaning of innocent passage
1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.
Article20
Submarines and other underwater vehicles
In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag."
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Also, Article 25 states:
"A coastal state may take the necessary steps in its territorial sea to prevent passage which is not innocent ... the coastal state may suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its of security, including weapons exercise."
And Article 30 states, "If any warship does not comply with the laws and regulations of the coastal state concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal state may require it to leave the territorial sea immediately."
Here's the entire reference from Section:
SECTION 3. INNOCENT PASSAGE
Article 45
Innocent passage
1. The regime of innocent passage, in accordance with Part II,
section 3, shall apply in straits used for international navigation:
(a) excluded from the application of the regime of transit passage
under article 38, paragraph 1; or
(b) between a part of the high seas or an exclusive economic zone
and the territorial sea of a foreign State.
2. There shall be no suspension of innocent passage through such
straits.
Article 38 states:
Article 38
Right of transit passage
1. In straits referred to in article 37, all ships and aircraft enjoy the right
of transit passage, which shall not be impeded; except that, if the strait is
formed by an island of a State bordering the strait and its mainland, transit
passage shall not apply if there exists seaward of the island a route through
the high seas or through an exclusive economic zone of similar convenience
with respect to navigational and hydrographical characteristics.
2. Transit passage means the exercise in accordance with this Part of
the freedom of navigation and overflight solely for the purpose of continuous
and expeditious transit of the strait between one part of the high seas or an
exclusive economic zone and another part of the high seas or an exclusive
economic zone. However, the requirement of continuous and expeditious
transit does not preclude passage through the strait for the purpose of
entering, leaving or returning from a State bordering the strait, subject to the
conditions of entry to that State.
3. Any activity which is not an exercise of the right of transit passage
through a strait remains subject to the other applicable provisions of this
Convention.
Now, your argument has been made by several coastal states, attempting to deny warships passage through a strait within their territorial waters. The International Court of Justice ruled that:
"It is, in the opinion of the Court, generally recognized and in accordance with international custom that States in times of peace have the
right to send their warships through straits used for international navigation between two parts of the high seas
without the previous authorization of the coastal State, provided that the passage is innocent."
Also, it has been interpreted by Britain, Australia and the US that the operation of aircraft within a strait is not outside the scope of article 19. Russia interprets article 19 to exclude rotor craft. Article 19 addresses only launching and recovery of aircraft, not the operation thereof.
Regardless of international law, as a rule, the US Navy will not launch or recover fixed wing aircraft within strait as it is a hazard to navigation to maneuver a carrier with the confines of a busy strait. They will, and have launched aircraft prior to entering a strait, recovering same upon exiting the strait and territorial waters.
Note also, Article 44.
States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage.
When the Iranian boats began dropping boxes in the path of the US warships, they violated Article 44 as the warships via due diligence, had to alter course.
You stated: "The "international law" that gives navigation rights through the Straits of Hormuz prohibits air operations while in transit. It also prohibits surveillance and surveys while in transit. See the helos in the videos? That violates the terms of right of passage. The US Navy uses sonar and US subs do not surface while going through the Straits - all violations of the terms to right of passage."
Air ops are not prohibited by article 19 if the helos were airborne prior to entering territorial waters. Moreover, helicopters may be launched to provide adequate surveying of the straits in as much as it supports safe navigation. This is the Russian contention. Likewise, the use of sonar as a navigation tool is generally accepted as within the scope of innocent passage. In addition, sonar may be used if a threat is perceived as the United Nations Convention on the Law of the Sea does not suspend a reasonable right to self defense. Furthermore, the US Navy routinely tracks Iranian Kilo class subs operating submerged in the straits. Tell me again why a stealthy, billion dollar American attack sub would surface with Kilos in proximity? You're kidding, right?
Your argument seems remarkably similar to that of Kaveh L Afrasiabi's piece in the Asian Times. Afrasiabi is an Iranian. Moreover, his argument has more holes than those Iranian speed boats would have had if they had not backed off.
My regards,
Widewing
