The Right of Innocent Passage in the UN Convention

The innocent passage has been codified in the United Nations Convention on the Law of the Sea (UNCLOS III) was adopted in 1982 [1] , it is also known as the Law of the Sea Treaty [2] . Its purpose is to establish a comprehensive set of rules governing the oceans and to replace previous U.N. Conventions on the Law of the Sea, 1958 (UNCLOS I) which was adopted in 1958 and another in 1960 (UNCLOS II), since these two convention were believed to be inadequate.

The term Innocent Passage is defined under international law referring to a ship or aircraft’s right to enter and pass through another’s territory so long as it is not prejudicial to the peace, good order or security of the other state. Under Article 19 of the UNCLOS III it is defined “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. The right of innocent passage of foreign ships through the territorial waters of a coastal state is one of the oldest and most universally recognized rules of public international law.

Meaning of Passage is defined under Article 18 of the UNCLOS III.

1. Passage means navigation through the territorial sea for the purpose of:

(a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or

(b) proceeding to or from internal waters or a call at such roadstead or port facility.

2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

The right of innocent passage is governed by articles 17 to 32 of the Law of the Sea Convention. This right constitutes an integral part of the territorial sea regime and is a well-established rule of international law. [3] However, from the time of its infancy; this rule has been accompanied by a constant and heated controversy between states, concerning its scope of application, legal effect and inherent implication. The point causing most of the controversial debate and even international disputes relates to the innocent passage of warships. Both the 1958 Geneva Convention and the 1982 Law of the Sea Convention contain nearly identical provisions under the same subsection titles regarding innocent passage.

Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State, [4] if in the territorial sea it engages 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; any exercise or practice with weapons of any kind; any act aimed at collecting information to the prejudice of the defence or security of the coastal State; any act of propaganda aimed at affecting the defence or security of the coastal State; the launching, landing or taking on board of any aircraft; the launching, landing or taking on board of any military device; 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; any act of willful and serious pollution contrary to this Convention; any fishing activities; the carrying out of research or survey activities; any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; any other activity not having a direct bearing on passage.

CONCEPT OF INNOCENT PASSAGE UNDER INTERNATIONAL LAW

Innocent passage is as old as the law of the sea itself and is a normal consequence of freedom of navigation; the doctrine was elaborated in Article 14 of the convention on the law of the sea 1958, which emphasized that that the coastal state must not hamper innocent passage and must publicise any dangers to navigation in territorial sea of which it is aware. Passage is defined as navigation through the territorial sea for the purpose of crossing that sea without entering internal waters or of proceeding to or from internal waters. It may include temporary stoppages, but only if they are incidental to ordinary navigation or necessitated by distress or force majeure [5] . It was practiced by maritime powers throughout the centuries with such consistency, and was affirmed by Jessup in 1927 that

“As a general principle, the right of innocent passage requires no supporting argument or citation of authority; it is firmly established in international law [6] .”

“Innocent passage” must be interpreted and applied in the light of national law which has been implemented by the coastal state. Every coastal state can adopt laws regarding the safety of navigation, laying of submarine cables, resources, fishing, environmental protection, scientific research, prevention of infringement of customs, fiscal, immigration, or sanitary laws and prevention of pollution as well as implement sea lanes and traffic separation schemes or suspend temporarily the right of innocent passage in specified areas of its territorial sea, subject only to the restriction that any such measures must be in conformity with the Convention and international law relating to “innocent passage” [7] .

How one can decide that the passage is innocent or not? Passage is declared to be 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 [8] . Under Article 17 of the UNCLOS III Right of Innocent Passage is defined “Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea”, and Passage is defined under Article 18.

1. Passage means navigation through the territorial sea for the purpose of:

(a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or

(b) proceeding to or from internal waters or a call at such roadstead or port facility.

2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

Article 19 defines Innocent Passage “Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.” When any foreign ship do not abide by the rules are considered to be violators’ and causes prejudice to the Coastal State Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State [9] . The meaning of “innocent” is a little more difficult to appreciate. The International Court was faced with the problem in the Corfu Channel case. This case arose from incidents that occurred on October 22nd 1946, in the Corfu Strait two British destroyers struck mines in Albanian waters and suffered damage, including serious loss of life. The channel they were following, which was in Albanian waters, was regarded as safe. An incident had already occurred in these waters on May 15th, 1946: an Albanian battery had fired in the direction of two British cruisers. The United Kingdom Government had protested, stating that innocent passage through straits is a right recognized by international law; the Albanian Government had replied that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior authorization.

The Court clarified a point on which there had been considerable difference of opinion; the Court held that it was not the character of the ship which was the determining factor, but rather the character of the passage itself. In the words of the Court, the question to consider is “whether the manner in which the passage was carried out was consistent with the principle of innocent passage.” The Court was satisfied that the passage was innocent. The evidence showed “that the ships were not proceeding in combat formation, but in line, one after the other, and that they were not maneuvering until after the first explosion. With respect to the second passage on November 12 and 13, the United Kingdom government itself recognized that it was not mere innocent passage the mine clearing operation was carried out against Albania’s ex press objection and “under the protection of an important covering force composed of an aircraft carrier, cruisers and other war vessels. The 1958 Convention expressed the principle underlying the Corfu Channel decision, namely that “passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State [10] “. the Corfu Channel judgment can be of considerable assistance in reaching a decision; whether a particular passage has been proved to be prejudicial to the protected rights of the coastal state.

It would seem that passage is to be presumed innocent until shown otherwise [11] . This is the view of Leo Gross who maintains that “the text as adopted clearly puts the burden on the coastal state to show that the passage itself rather than the passage of a particular ship, its purpose or cargo, was prejudicial to the stated values of the coastal state. Considering this heavy burden, the coastal state must be in a position to secure the necessary evidence when an offensive passage does occur [12] .

RIGHT OF INNOCENT PASSAGE

The right of innocent passage of foreign ships through the territorial waters of a coastal state is one of the oldest and most universally recognized rules of public international law. Article 17 of the Geneva Convention on the Law of the Sea 1958 provided that ships exercising the right of innocent passage were to comply with the laws and regulations enacted by coastal state, in particular those relating to transport and navigation. This was developed in article 21(1) of the 1982 Convention, it provided with several laws and regulations concerning innocent passage as have been dealt earlier in detail.

Jessup in his book on territorial waters has remarked that, as a general principle, the right of innocent passage requires no supporting argument or citation of authority; it is firmly established in international law. Grotius considered the right of innocent passage related to the “most specific and unimpeachable axiom of the Law of Nations, called a primary rule or first principle, the spirit of which is self-evident and immutable, to wit [13] : Every nation is free to travel to every other nation and to trade with it. The right of innocent passage is premised on the general right of freedom of navigation in international waters. Grotius was disposed to claim this right as an adjunct of the right to trade.

The very term “innocent passage” implies two prerequisites for its exercise [14] :

(a) that passage be “innocent,” i.e., not of such a nature as to affect the security or welfare of the coastal state; and

(b) that “passage” only may be exercised, to the exclusion of such acts as “hovering” or anchoring in the territorial seas.

One of the Scholars states that the purpose of this right “lies in the fact that the whole world has a legitimate and necessary interest in being able to use the seas for the purposes of normal intercourse. ‘Passage’ is a word of motion, and in its proper use it signifies continuous movement from one place to another. It does not imply any right to remain at rest on the track or to use it for any other purpose than that of transit [15] . Innocent passage derogates from the authority and sovereignty which the coastal state exercises over its territorial seas. Even those disposed to grant the coastal state full sovereignty over its territorial waters do not claim that its sovereignty is absolute. The essential question is: to what extent is the right of innocent passage an independent right, on parity with that of the sovereignty of the coastal state; and to what extent should it be deemed a subordinate right, perhaps even a grant, of the coastal state? The concept of “innocent passage seems to be the result of an attempt to reconcile the freedom of ocean navigation with the theory of territorial waters. Many writers maintain that the coastal state exercises sovereignty; on the other hand, a minority deny the territorial character of the maritime belt and concede that littoral states works only in the interest of the safety of the coast, certain powers of control, jurisdiction, police, etc., but not sovereignty.

There is the classic case in the right of innocent passage and the case concerning Right of Passage over Indian Territory (Portugal v. India) [16] ; was referred to the Court by an Application filed on 22 December 1955. In that Application, the Government of Portugal stated that its territory in the Indian Peninsula included two enclaves surrounded by the Territory of India, Dadra and Nagar-Aveli. It was in respect of the communications between those enclaves and the coastal district of Daman, and between each other, that the question arose of a right of passage in favour of Portugal through Indian Territory and of a correlative obligation binding upon India. The Application stated that in July 1954 the Government of India prevented Portugal from exercising that right of passage and that Portugal was thus placed in a position in which it became impossible for it to exercise its rights of sovereignty over the enclaves.

The Court referred to the submissions filed by Portugal which in the first place requested the Court to adjudge and declare that a right of passage was possessed by Portugal and must be respected by India; this right was invoked by Portugal only to the extent necessary for the exercise of its sovereignty over the enclaves, and it was not contended that passage was accompanied by any immunity and made clear that such passage remained subject to the regulation and control of India, which must be exercised in good faith, India being under an obligation not to prevent the transit necessary for the exercise of Portuguese sovereignty.

In its Judgment the Court held that, Portugal had in 1954 a right of passage over intervening Indian territory between the enclaves of Dadra and Nagar-Aveli and the coastal district of Daman and between these enclaves, to the extent necessary for the exercise of Portuguese sovereignty over the enclaves and subject to the regulation and control of India, in respect of private persons, civil of officials and goods in general, the Court also mentioned that that Portugal did not have right of passage in respect of armed forces, armed police and arms and ammunition. Most importantly also pointed out that India had not acted contrary to its obligations resulting from Portugal’s right of passage in respect of private persons, civil officials and goods in general.

A right of passage in respect of private persons, civil officials and goods in general, and not be prejudicial to the peace, good order or security of the coastal States are considered to be innocent.