Understanding Innocent and Transit Passage

June 5, 2020

Territorial map of the world. Source: https://www.opendemocracy.net/en/territorial-map-of-world/

 

The right of innocent passage for foreign vessels within the territorial sea of a coastal State is defined as "navigation through the territorial sea for (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." The passage must be "continuous and expeditious," but it may include stopping and anchoring when incidental to ordinary navigation or rendered necessary by unusual circumstances.[1]

 

Article 19 of the Law of the Sea Convention of 1982 (herein after; LOSC) declares that passage is "innocent" so long as it is not prejudicial to the peace, good order, or security of the coastal State and further outlines a list of 12 activities that are considered "prejudicial." This list effectively precludes a range of military operations, including practicing or exercising weapons; collecting information to the prejudice of the coastal State; launching, landing, or taking on board any aircraft or military device; and jamming coastal State communications. Submarines and underwater vehicles conducting innocent passage must navigate on the surface and show their flag.[2] It is important to note that the right of innocent passage only applies to foreign vessels. Aircraft in flight are not entitled to the innocent passage, and thus aircraft must remain onboard vessels during innocent passage.[3]

 

An exception to the authority to deny innocent passage to aircraft exists within the limited context of the "right of assistance entry"[4] based on the long-recognized duty of mariners to render immediate rescue assistance to those in danger or distress at sea. The right of assistance entry permits entry into the territorial sea by ships or, under certain circumstances, aircraft without permission of the coastal State for the limited purposes of rescue or assistance. This principle of customary international law is reflected in the "duty to render assistance" described in Article 98 of the LOSC.[5] The right of innocent passage applies to straits used for international navigation following the LOSC and shall not be suspended even when a situation of armed conflict exists.[6] 

 

The right of innocent passage also applies to archipelagic waters, but it can be subject to temporary published suspensions for the protection of coastal State security.[7]

 

The right of innocent passage for foreign vessels within the territorial sea of a coastal State is defined as "navigation through the territorial sea for (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." The passage must be "continuous and expeditious," but it may include stopping and anchoring when incidental to ordinary navigation or rendered necessary by unusual circumstances.[8] Article 19 of the LOSC declares that passage is "innocent" so long as it is not prejudicial to the peace, good order, or security of the coastal State and further outlines a list of 12 activities that are considered "prejudicial." This list effectively precludes a range of military operations, including practicing or exercising weapons; collecting information to the prejudice of the coastal State; launching, landing, or taking on board any aircraft or military device; and jamming coastal State communications. Submarines and underwater vehicles conducting innocent passage must navigate on the surface and show their flag.[9]

 

It is important to note that the right of innocent passage only applies to foreign vessels. Aircraft in flight are not entitled to the innocent passage, and thus aircraft must remain onboard vessels during innocent passage.[10]

 

An exception to the authority to deny innocent passage to aircraft exists within the limited context of the "right of assistance entry" [11] based on the long-recognized duty of mariners to render immediate rescue assistance to those in danger or distress at sea. The right of assistance entry permits entry into the territorial sea by ships or, under certain circumstances, aircraft without permission of the coastal State for the limited purposes of rescue or assistance. This principle of customary international law is reflected in the "duty to render assistance" described in Article 98 of the LOSC.[12] The right of innocent passage applies to straits used for international navigation following the LOSC and cannot be suspended even when a situation of armed conflict exists. The right of innocent passage also applies to archipelagic waters, but it can be subject to temporary published suspensions for the protection of coastal State security.[13] The Coastal States may adopt measures in her territorial sea to prevent passage which is not 'innocent'. States may announce temporary suspensions of innocent passage for security reasons. Such security reasons may include weapons' exercises.[14]

 

While the text of the relevant articles of the LOSC does not explicitly grant the right of innocent passage to warships, the overall language of the LOSC in the context of its negotiation history and customary international law all make it clear that warships enjoy the right of innocent passage on an unimpeded and unannounced basis.[15] However, if a warship does not comply with coastal State regulations that conform to established principles of international law, disregards a request for compliance that is made to it then the coastal State may require the warship to leave the territorial sea immediately.[16]

 

Due to the sovereign immunity of warships, the degree to which a coastal State can force a warship to exit its territorial waters in this situation is not precise. Additionally, coastal States may not prohibit transit or otherwise impair the rights of innocent passage of nuclear-powered sovereign vessels.[17]

 

Several articles of the LOSC addressing innocent passage have led to differing interpretations by States. For example, some coastal States interpret Article 19(1), which allows for innocent passage, to prohibit several activities not explicitly listed under Article 19(2). Another issue of interpretation is whether the coastal State may require foreign ships conducting innocent passage to carry equipment that enables the coastal State to monitor the ship's movement. Some commentators have argued that no LOSC provision prevents the coastal State from imposing such a measure.[18] However, the LOSC does not expressly characterize a foreign ship's passage in the territorial sea as non-innocent if it fails to enable monitoring by the coastal State.

 

These disputed issues originate from the negotiations that preceded the adoption of the LOSC, which placed the interests of maritime powers in conflict with those of coastal States. Maritime powers pushed for more freedom of navigation, but coastal States argued for the ability to constrain mobility in certain circumstances to protect coastal State interests.[19]

 

Right of transit passage is defined as the exercise of the freedoms of navigation and overflight, solely for continuous and expeditious transit through an international strait between one part of the high seas or an EEZ and another part of the high seas or an EEZ, in the normal modes of operation utilized by ships and aircraft for such passage. 

 

An exception to the right of transit passage declares that the right "shall not apply if the strait is formed by an island of a State bordering the strait and its mainland" and "there exists seaward of the island a route through the high seas or an exclusive economic zone of similar convenience concerning navigational and hydrographical characteristics."[20] Transit passage cannot be hampered or suspended by the coastal State for any purpose during peacetime. Such applies even to transiting ships, including warships, of States at peace with the neighboring coastal State but involved in armed conflict with another State.[21] The right of transit passage applicable in peacetime, along with the laws and regulations of States bordering straits adopted under international law, continue to apply during armed conflict. However, during transit belligerents must not conduct offensive operations against enemy forces, nor use such neutral waters as a sanctuary or as a base of operations.[22]

 

It is important to note a few critical differences between the innocent passage and transit passage that are particularly relevant to military operations and highlight the fact that fewer restrictions may be imposed on transit passage compared to innocent passage. While there is no right to innocent passage for aircraft, and coastal States may deny entry to aircraft attempting to traverse airspace over their territorial waters, they may not deny transit passage to aircraft over an international strait.

 

Besides, while coastal States may require submarines to conduct innocent passage on the surface and showing their flag, they may not prohibit submarines from conducting transit passage submerged.[23] Another difference is that transit passage may not be suspended by the coastal State, whereas innocent passage may be temporarily suspended.[24] Ships and aircraft exercising the right of transit passage shall (a) proceed without delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty, territorial integrity, or political independence of States bordering the strait; and (c) refrain from any activities other than those incidents to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress.[25] Surface warships may transit in a manner consistent with sound navigational practices and the security of the force, including the use of their electronic detection and navigational devices such as radar, sonar, and depth sounding devices, formation steaming, and the launching and recovery of aircraft.[26]

 

Foreign ships are required to obtain the authorization of the coastal States that border straits before conducting research or survey activities while exercising the right of transit passage.[27] States bordering straits have the authority to establish sea lanes and traffic separation schemes where necessary to promote the safe passage of ships in straits used for international navigation.[28] Warships, auxiliaries, and government ships operated on exclusive government service, i.e., sovereign-immune vessels, are not legally required to comply with such sea lanes and traffic separation schemes while in transit passage must exercise due regard for the safety of navigation. The Coastal States may not prohibit transit or otherwise impair the right of transit passage of nuclear-powered sovereign vessels.[29]

 

The Coastal States have the authority to adopt laws and regulations relating to transit passage through straits, concerning all or any of the following such as the safety of navigation and the regulation of maritime traffic, as provided in Article 41 or the prevention, reduction, and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes, and other noxious substances in the strait concerning fishing vessels, the prevention of fishing, including the storage of fishing gear. The loading or unloading of any commodity, currency, or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits. States bordering straits have the duty not to hamper transit passage and to give appropriate publicity to any danger to navigation or overflight within or over the strait of which they know.[30]

 

 

 

1.  Law of the Sea Convention (LOSC), Articles 17-18.

2.  LOSC, Articles 19-20.

3.  Naval Warfare Publication 1-14M, The Commander's Handbook of the Law of Naval Operations, "General Maritime Regimes Under Customary International Law as Reflected in the 1982 LOS Convention," 2-4. [from now on Naval Warfare Publication 1-14M] (available at http://www.jag.navy.mil/documents/NWP_1-14M_Commanders_Handbook.pdf).

4.  Chairman of the Joint Chiefs of Staff Instruction 2410.01D, "Guidance for the Exercise of Right-of-Assistance Entry," August 31, 2010. (available at http://www.jcs.mil/Portals/36/Documents/Library/Instructions/2410_01.pdf?ver=2016-02-05-175013-783); See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Articles 31-33, June 12, 1994. [hereinafter San Remo Manual] (available at: https://ihl-databases.icrc.org/ihl/INTRO/560).

5.  LOSC, Article 98.

6.  LOSC, Article 45; see also San Remo Manual, Articles 31-33. 11

7.  LOSC, Articles 52-53.

8.  LOSC, Articles 17-18.

9.  LOSC, Articles 19-20.

10.  Naval Warfare Publication 1-14M, The Commander's Handbook of the Law of Naval Operations, "General Maritime Regimes Under Customary International Law as Reflected in the 1982 LOS Convention," 2-4. [from now on Naval Warfare Publication 1-14M] (available at http://www.jag.navy.mil/documents/NWP_1-14M_Commanders_Handbook.pdf).

11.  Chairman of the Joint Chiefs of Staff Instruction 2410.01D, "Guidance for the Exercise of Right-of-Assistance Entry," August 31, 2010. (available at http://www.jcs.mil/Portals/36/Documents/Library/Instructions/2410_01.pdf?ver=2016-02-05-175013-783); See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Articles 31-33, June 12, 1994. [hereinafter San Remo Manual] (available at: https://ihl-databases.icrc.org/ihl/INTRO/560).

12.  LOSC, Article 98.

13.  LOSC, Article 45; see also San Remo Manual, Articles 31-33. 11

14.  LOSC, Articles 52-53.

15.  LOSC, Article 30.

16.  Naval Warfare Publication 1-14M, 2-5.

17.  See John A. Knauss & Lewis M. Alexander, "The Ability and Right of Coastal States to Monitor Ship Movement: A Note," 31 Ocean Dev. & Int' l L. 377, 379 (2000).

18.  See generally William Agyebeng, "Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea," Cornell International Law Journal, Volume 39, Issue 2, 389-390, (2006). (available at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1672&context=cilj)

19.  LOSC, Article 38.

20.  Naval Warfare Publication 1-14M, 2-6; See also San Remo Manual, Articles 31-33, June 12, 1994.

21.  San Remo Manual, Articles 27-30.

22.  Naval Warfare Publication 1-14M, 2-6.

23.  LOSC, Article 25.

24.  LOSC, Article 39.

25.  Naval Warfare Publication 1-14M, 2-6.

26.  LOSC, Article 40.

27.  LOSC, Article 41.

28.  Naval Warfare Publication 1-14M, 2-5, 2-6.

29.  LOSC, Article 42.

30.  LOSC, Article 44.

 

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