RIGHT OF INNOCENT PASSAGE IN THE TERRITORIAL SEA

Introduction

A state not only enjoys sovereignty over its land and internal waters, but also its adjacent sea which lies beyond its land. Article 2 of the Part II of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) also provides that this sovereignty extends to the air space and also bed and sub soil and is subject to other rules of the international law. It extends up to 12 nautical miles from the coast baseline.

Territorial sea has been put under the sovereignty of the state to ensure security of the coastal States. Being the water adjacent to the territory of the State, it may be used by the other states to harm the integrity and security of the coastal state.

Right of innocent passage in the territorial sea

Although the coastal state enjoys sovereignty over the territorial seas, it shall not obstruct the innocent passage of the ships, submarines, under water vehicles and even warships in its territorial water. Section 3 of the Part II of the UNCLOS (Article 17 to 31) deals with the right of the innocent passage.

Section 3 is divided into three subsections: Subsection A (Article 17-26) dealing with the rules applicable to all ships, subsection B (Article 27-28) dealing with rules applicable to merchant ships and the government ships which operates for the commercial purposes and Subsection C (29-32) dealing with the rules applicable to warships and other government ships operated for non-commercial purposes.

This article deals with subsection A and subsection B and C will be dealt with in the upcoming article.

What is an innocent passage?

Passage: ‘Passage’ has been defined under Article 18 as the navigation through the territorial sea for the purpose of traversing that sea without entering the internal waters, calling a roadstead or port facility outside the internal water or proceeding to or from these areas.[1] It must be a continuous and expeditious, without unnecessary stoppages. Unnecessary delays in the territorial sea of the coastal state may create a suspicion of threat to the security of the Coastal state.

Innocent passage: A ‘passage’ is considered ‘innocent’ if it does not harm the peace, good or security of the coastal state and is taking place in conformity with UNCLOS and other international conventions.

Passages for the purposes of threatening or using force, or exercise or practice with weapons of any kind, or any act harming defence or security of the coastal state, etc. are not considered as ‘innocent’ and are out of the purview of the right of innocent passage.[2]

Rules related to submarines and other underwater vehicles: Such vehicles must navigate on the surface and show their flag while navigating in the territorial sea.[3]

Rights of coastal states relating to innocent passage: Although the coastal state has no right to hamper the right of the innocent passage of the States.[4] However coastal states can regulate this right by making laws and regulations in respect of certain matters such as: safety of the navigation and regulation of the maritime traffic, protection of the navigational aid and the facilities and other facilities and installations, protection of cables and pipelines, conservation of the living resources of the sea, prevention of infringement of the fisheries laws of coastal states, preservation of the environment of the coastal state and prevention, reduction and control of pollution thereof, marine scientific research and hydrographic surveys, prevention of the customs, fiscal, immigration or sanitary laws and regulations of the coastal state. Such laws and regulations must be given publicity in order to prevent ignorance of such regulations by the navigating ships and enabling them to comply with the laws,

Foreign ships must comply with these rules and regulations made by the coastal state and act in conformity with these.

The coastal state may also, if necessary, make rules relating to sea lanes and traffic separation schemes in the territorial sea and in case of nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances, require such ships to carry documents and observe special precautionary measures established for such ships under international agreements.[5]

Rights of the coastal states relating to passage which is not innocent: when a passage is not innocent, coastal states can take necessary measures including temporary suspension of innocent passage in specific areas, without discrimination among ships. However, such suspension must be essential for the protection of its security.

Cases

Corfu Channel (UK v. Albania)- In this case, the International Court of Justice (ICJ) (1949) upheld the right of innocent passage of the ships including warships (during peacetime) of the states. The Court tried to create a balance between the sovereign rights of the territorial states and the navigational rights of the other states in the territorial waters.

Right passage of Indian territory (Portugal v. India) – It is a 1962 judgment delivered by the ICJ related to the claims of Portugal pertaining to passage through Indian waters to the extent required to exercise Portuguese sovereignty in enclaves of Dadra and Nagar-Aveli. The ICJ held that the Portuguese has right to passage through the waters. However, such passage does not extend to the armed forces, armed police, arms and ammunitions.

Conclusion

Right of innocent passage is the part of the navigational rights of all the states. It is one of the important rights of the States, which remains unhindered by the coastal states unless it harms the good, peace and security of the coastal states. The Coastal states can regulate the movement through laws and regulations but cannot completely eliminate this right of the other states.

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For UNCLOS original text, visit: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

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[1] Article 18, UNCLOS.

[2] Article 19, UNCLOS.

[3] Article 20, UNCLOS.

[4] Article 24, UNCLOS.

[5] Article 23, UNCLOS.