Author Name:   haris jamil

This article deals with Right to innocent passage in territorial sea in accordance with United nation convention on territorial sea. This article further lays emphasis on on the Indian scenario relating to the topic.

Right to Innocent Passage in Territorial Sea.

There are two notions that have influenced international law relating to oceans. The first notion talks about the freedom of navigation. It says that sea is common to all humankind and open to navigational use by all. This notion is borne out by the belief that geophysical nature of the ocean itself resists any claim of ownership over it. So, this notion restricts the power of state or an individual with regard to ownership over sea.

The first person to come up with this view was Hugo Grotius expressed in his seminal thesis on the law of the sea in Mare Liberum in 1609. He set up the foundation of the principle of freedom of seas.

The second notion seeks to restrict the use of the sea by positing that the sea is amenable to ownership by persons or states. Thus, whoever may bring any part of the oceans under his dominion may validly restrict its use by others. The friction between these two notions has, over the years been, the shaping rod of the law of the sea.

Seas have always been a great importance for humans. The oceans serve as a vital link between nations in terms of trade, commerce and communication. In this way it has also been one of the major sources of economy for many nations. These concerns are the mainstay of the world economy and there have been the push-and-pull factors in the line of the cross fire between the opposing forces of freedom of navigation on the one hand and restricted access on the other hand.

The middle path of the interaction between these two notions discussed is the principle of innocent passage. After centuries of turbulent evolution, this principle now appears to have crystallized with its codification in the Law of the Sea Convention.

The United Nations Convention on the Law of the Sea (LOSC) bridges the gap between centuries-old rights and obligations and the new awareness that the seas are not an inexhaustible resource for those whose geographic or economic development facilitates maritime exploitation. The LOSC represents an exceptionally important contribution to international relations.

Right To Innocent Passage And Its Codification
Department of Defense Dictionary of Military and Associated Terms defines innocent passage as the right of all ships to engage in continuous and expeditious surface passage through the territorial sea and archipelagic waters of foreign coastal states in a manner not prejudicial to its peace, good order, or security. Passage includes stopping and anchoring, but only if incidental to ordinary navigation or necessary by force majeure or distress, or for the purpose of rendering assistance to persons, ships, or aircraft in danger or distress.

So, right to innocent passage can only be exercised on that part of the sea which has sovereign power on it by any nation. This right cannot be exercised on the high sea because of the lack of power or claim over that part by any nation.

The true reason for the granting of the right to innocent passage is the promotion of trade, commerce and communication between states.

Law of sea has now become very established after a series of conventions starting from Hague Codification Conference in 1930 followed by Geneva Conference on the law of the sea,1958 (UNCLOS I), followed by UNCLOS II in 1960 and then present law of sea (UNCLOS III) came into force in the year 1982.

It is now regarded as a codification of the customary international law on the issue.

Geneva conference on the Law of the Sea, 1958 made it clear that coastal state exercises sovereignty over the territorial water but this is subject to certain restrictions. In other words, despite the fact that coastal states have sovereignty over a particular part of the sea, yet it is the duty of the state to provide innocent passage to the ships of other states.

Article 17 of LOSC provides for innocent passage to the ships of all the states, whether coastal or land locked through territorial sea.

Passage means navigation through the territorial sea for the purpose of either transversing that sea without entering internal waters, or of proceeding to internal waters, or making for the high seas forms internal waters. Passage includes stopping and anchoring but only in so far as the same are incidental to or are rendered necessary by force majeure or by distress.

Right To Innocent Passage Under Unclos 1982
Article 19(2) of the convention provides for some exceptions with regard to innocent passage. Passage is innocent so long as it is prejudicial to peace, good order or security of the coastal state. In other words, the activity of the vessel exercising the right of innocent passage should not pose a serious and unacceptable threat to the coastal state.

Passage of a foreign fishing vessel will not be considered as innocent if they do not act in conformity with laws passed by the coastal state to prevent such an act.

Submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Foreign nuclear powered ships or ship carrying other dangerous or noxious nuclear substance should carry necessary documents and present them while exercising right to innocent passage if asked by the coastal state. They should also take precautionary measures established for such ships by international agreement.

Coastal state is immune to hamper, deny or impair the right to innocent passage if vessel acts in accordance with rules and regulation set up by international convention and agreements. State shall also not discriminate against the ships of any state or against ships carrying cargoes to, from on behalf of any state. Coastal state is, however also required to give appropriate publicity to any dangers to navigation of which it has knowledge within its territorial sea.

Article 211and Art.21 (1) (f) of the UNCLOS 1982 empowers coastal state to make laws with regard to the prevention of pollution through vessels. Article 21 of the UNCLOS 1982 empowers coastal state to make laws for the safety of navigation and the regulation of maritime traffic, laying of submarine cables, the conservation of the living resources of the sea, prevention of fisheries law, scientific research, prevention of infringement of customs, fiscal, immigration, or sanitary laws.

Article 22 of UNCLOS 1982 empowers coastal state to implement sea lanes and traffic separation schemes for the foreign ships exercising the right to innocent passage through their territorial sea with regard to safety of navigation. However, they can temporarily suspend right to innocent passage within their territorial sea but this should be done in accordance with the conventions and laws relating to innocent passage.

Even if conditions of passage under Article 18 of UNCLOS 1982 are fulfilled, there remains exception to the right of innocent passage with respect to criminal and civil jurisdiction of the coastal state on foreign vessels. A coastal state may not exercise its jurisdiction on board a foreign vessel unless there is a serious threat to the coastal state, measures for the suppression of drug traffic are necessary, requests for aid have been made, or there is a particular situation in which the vessel has left the internal waters of the coastal state and is still in the territorial sea and action by the coastal state is warranted. If the vessel cannot be stopped in the territorial sea, further action may be taken in accordance with the provisions for hot pursuit under article 111 of the same convention.

One of the famous case on the right to innocent passage is The Corfu Channel Case.In this case, on 22-10-1946 squadron of British warships, the cruisers Mauritius and Leander; and the destroyers Saumarez and Volage, left the port of Corfu and proceeded northwards through a channel previously swept for mines in the North Corfu Strait. Outside the bay Saranda, Saumarez struck a mine and was heavily damaged whilst towing the damaged ship Volage struck a mine and was badly damaged. On 13-11-1946, the Britishers removed 22 mines in the north Corfu channel. As the mines were swept by Britishers, the Albanian army fired at Britishers causing damage to their ship and lives of the navy. British reported the matter to Security Council. Later both the countries agreed to refer the matter to International Court of Justice. In court, Albania contended that the Corfu channel was an innocent passage. Britain prayed for the compensation for the damage caused to its ships and lives of the navy.

The international court of justice held Albania liable for installing mines and explosions in the innocent passage, i.e. North Corfu Channel. The court also held that Britain intervened the sovereignty of Albania by removing explosive substance from the territorial water of Albania without its permissions. It was held that Albania should have given prior intimation to the Britishers regarding the mines and explosives in their territorial sea. Albania was asked to pay compensation to Britain. But by removing the mines, Britain intervened the sovereignty. Therefore, the Britain is not entitled to receive compensation.

Indian Scenario
India is a signatory to the U.N. Convention on the Law of the Sea, 1982. Besides this, there is a national legislation governing the coastal regions within the sovereignty of India known as the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976.

Section 4(1) of this act deals with right to innocent passage within the territorial sea of India. It provides that all foreign ship other than the warships which excludes submarines and other under water vessels shall enjoy the territorial sea of India. However, section 4(2) this act allows foreign warships including submarines and other underwater vehicles to enter or pass through the territorial waters after giving prior notice to the Central Government and they are also required to navigate on the surface and show their flags.

Section4 (3) of this act provides that the Central Government may, if satisfied that it is necessary so to do in the interests of the peace, good order or security of India or any part thereof, suspend, by notification in the Official Gazette, whether absolutely or subject to such exceptions and qualifications as may be specified in the notification, the entry of all or any class of foreign ships into such area of the territorial waters as may be specified in the notification.

India’s merchant fleet is global career, and besides Indian trade, its vessels are also chartered for carrying cargoes. Therefore, right to innocent passage is exercised by Indian vessels to move and trade across the globe.

References:
· Kissi Agyebeng, Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea ,available at: http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1024&context=lps_papers  (last visited on 10th Feb.2010)

· James Harrison., Evolution of the law of the sea: developments in law-making in the wake of the 1982 Law of the Sea Convention, available at: http://www.era.lib.ed.ac.uk/bitstream/1842/3230/1/J Harrison, Evolution of the Law of the Sea, PhD Thesis, 2008.pdf (last visited on 10th Feb.2010)

· Department of Defense Dictionary of Military and Associated Terms(as amended on 23rd January,2002) dept. of navy and air force, USA, available at: http://www.fas.org/irp/doddir/dod/jp1_02.pdf (last visited on 11th Feb.2010)

· See, Chronological lists of ratifications of, accessions and successions to the Convention and
the related Agreements as at 06 December 2008, at http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm (last visited on 29th December 6, 2009).

· Bernaerts,Arnd; Bernaerts’ Guide To The 1982 United Nations Convention On The Law Of The Sea, Trafford Publishing Co.,2006,p.28.

· United Kingdom v. Albania, [1949] ICJ Rep. 4

· Sharma O.P., The international law of the sea: India and the UN convention of 1982, Oxford university press, India, 2009, p; 88

The  author can be reached at: haris@legalserviceindia.com

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