International Laws Of The Sea – Part 7

Pursuant to the earlier topic of Introduction to Maritime Law in Malaysia, published on 22 February 2021, in the coming series the basis and elements of International Laws of The Sea, will be explored.

Right of innocent and transit passage

1. Nature and meaning of innocent passage

   The 1982 Convention defines the meaning of passage itself prior to defining the meaning of innocent passage.
   Article 18 reads as follows:
   Article 18
   Meaning of passage

   1. Passage means navigation through the territorial sea for the purpose of:
      1. traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters;or
      2. 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 of the Convention outlines the meaning of innocent passage. According to this article the passage of a foreign ship is innocent as long as it is not prejudicial to the security and safety and other legitimate interests of the coastal states. The article reads as follows:

   Article 19

   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:
      1. 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;
      2. any exercise or practice with weapons of any kind;
      3. any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
      4. any act of propaganda aimed at affecting the defence or security of the coastal State;
      5. the launching, landing or taking on board of any aircraft;
      6. the launching, landing or taking on board of any military device;
      7. 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;
      8. any act of wilful and serious pollution contrary to this Convention;
      9. any fishing activities;
      10. the carrying out of research or survey activities;
      11. any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
      12. any other activity not having a direct bearing on passage.
          There are a number of other conditions imposed on foreign vessels traversing the territorial waters of a coastal state. Submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Similarly, foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances must, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements.
          Foreign warships that do not comply with the laws and regulations of the coastal state concerning passage through the territorial sea, and which disregard any request for compliance therewith which is made to them, can be required to leave the territorial sea immediately.

2. Legislative and administrative rights of coastal states

   The 1982 Convention seeks to strike a balance between the right of innocent passage of foreign ships and the right of coastal states to regulate maritime affairs in their territorial sea. After all, in this maritime zone a coastal state has sovereign rights. In exercising this sovereign right, the state is allowed to adopt, implement or enforce a number of legislative and administrative measures in the territorial sea relating to innocent passage. Article 21 of the 1982 Convention spells out these powers:
   Article 21
   Laws and regulations of the coastal State relating to innocent passage

   1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:
      1. the safety of navigation and the regulation of maritime traffic;
      2. the protection of navigational aids and facilities and other facilities or installations;
      3. the protection of cables and pipelines;
      4. the conservation of the living resources of the sea;
      5. the prevention of infringement of the fisheries laws and regulations of the coastal State;
      6. the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
      7. marine scientific research and hydrographic surveys;
      8. the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.
   2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.
   3. The coastal State shall give due publicity to all such laws and regulations.
   4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.
      In addition, the coastal state may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships. Tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes.

3. Rights of protection of the coastal state

   Article 25 of the 1982 Convention spells out a number of rights of protection of a coastal state designed to prevent passage that is not innocent. In other words, the coastal state can deny the right of innocent passage to those foreign vessels that violate the provisions of Article 19 in traversing the territorial waters.
   Furthermore, in the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal state also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject.
   Finally, the coastal state may, without discrimination in form or in fact among foreign ships, suspend the innocent passage of foreign ships temporarily in specified areas of its territorial sea, if such suspension is essential for the protection of its security, including weapons exercises.

   Such suspension can take effect only after having been duly published. The 1982 Convention guarantees the right of innocent passage in straits used for international navigation, and there can be no suspension of innocent passage through such straits.

4. Freedom of navigation and transit passage

   The purpose of the principle of the freedom of the high seas was to ensure peaceful navigation for trade through sea routes. Hence, navigational rights have been at the heart of the evolution of the law of the sea, and UNCLOS III was no exception. Traditionally, states have claimed some part of the seas beyond their shores as part of their territory, as a zone of protection to be patrolled against smugglers, warships and other intruders. This claim was founded on the principle of protection.
   As to the limits of this zone of protection, it was a widely held view during the seventeenth and eighteenth centuries that these should be measured by the power of the coastal state to control the area. This was the reason why the so-called ‘cannon-shot’ rule gained wide acceptance in Europe at the time. In other words, coastal states were to exercise dominion over their territorial seas as far as projectiles could be fired from a cannon based on the shore, and the range of land-based cannons at the time was approximately one marine league, or three nautical miles. This was the origin of the traditional rule of a three-mile territorial sea.
   As discussed earlier, by the time UNCLOS III was convened, a trend to a 12-mile territorial sea had gained widespread support, although the major maritime and naval powers clung to a three-mile limit. This was because a 12-mile limit would effectively close off and place under national sovereignty not only a vast area of the seas hitherto regarded as the high seas, but also more than 100 straits used for international navigation. Strategic passages such as the Strait of Gibraltar (eight miles wide and the only open access to the Mediterranean), the Strait of Malacca (20 miles wide and the main sea route between the Pacific and Indian Oceans), the Strait of Hormuz (21 miles wide and the only passage to the oil-producing areas of the Gulf) and Bab el Mandeb (14 miles wide, connecting the Indian Ocean with the Red Sea) would all come under the territorial sea. Although the right of innocent passage was available in the territorial sea, major naval powers such as the USA and the Soviet Union (as it then was) wished to have free passage guaranteed for all types of vessels through such straits, especially warships.
   Thus, at UNCLOS III the issue of passage through straits placed the major naval powers on one side and coastal states controlling narrow straits on the other. States such the USA and the Soviet Union insisted on free passage through straits (in effect giving straits the same legal status as the international waters of the high seas). But coastal states, especially the developing states and weaker and smaller states, were concerned that passage of foreign warships so close to their shores might pose a threat to their national security and possibly involve them in conflicts among outside powers, and were therefore unwilling to accept the position taken by the major naval powers such as the USA and the Soviet Union.
   Most developing coastal states insisted on the designation of straits as territorial seas and were willing to grant to foreign warships only the right of innocent passage. But the major naval powers were concerned that the regime of innocent passage had certain limitations which were not acceptable to them. For instance, under international law a submarine exercising its right of innocent passage would have to surface and show its flag. In addition, innocent passage does not guarantee the aircraft of foreign states the right of overflight.
   After protracted negotiations, the compromise reached at UNCLOS III in this regard was the development of the concept of ‘transit passage’ in straits, under which the international status of the straits was preserved and the naval powers were accorded the right to unimpeded navigation and overflight through straits. In return, the naval powers accepted that straits were to be considered part of the territorial sea of the coastal state, a demand put forth by developing, smaller and weaker states bordering straits.
   Under this new regime, ships and vessels in transit passage are required to observe international regulations on navigational safety, civilian air-traffic control and prohibition of vessel-source pollution, and the conditions that ships and aircraft proceed without delay and without stopping except in distress situations, and that they refrain from any threat or use of force against the coastal state. Thus, this new concept of transit passage combines the legally accepted provisions of innocent passage through territorial waters and freedom of navigation on the high seas.
   According to Article 37 of the Convention, the regime of transit passage applies to straits that are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. The nature of the right of transit passage is outlined in Article 38 in the following words:
   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.
      One of the special features of transit passage in international straits is that there can be no suspension of transit passage rights through such straits.

5. Archipelagic sea lanes passage

   The concept of ‘archipelagic sea lanes passage’ is another innovation of the 1982 Convention on the Law of the Sea designed to safeguard navigational rights. Subject to certain limitations outlined in Part IV of the Convention, ships of all states enjoy the right of innocent passage through archipelagic waters. According to Article 53, the archipelagic state may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security.
   The archipelagic states must designate sea lanes and air routes thereabove suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.
   Archipelagic sea lanes passage includes the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

6. Summary and conclusions

   One of the main objectives of the law of the sea is to ensure peaceful maritime trade by the ships of all nations, and the notion of the right of innocent passage is designed to help achieve this objective. When agreeing to a 12-mile limit to the territorial sea, the major naval powers wished also to ensure that the right of innocent passage was available not only to commercial ships but also to warships. The regime of innocent passage in the law of the sea strikes a fine balance between the sovereign rights of the coastal state and the right of innocent passage for all foreign ships.

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This article is written by our Principal Associate, Chakaravarthi