Innocent passage

What Is Innocent Passage?

Innocent passage is a fundamental principle within international maritime law that grants ships of all states the right to navigate through the territorial sea of another coastal state without hindrance. This right falls under the broader category of International Maritime Law, which governs the use of the world's oceans and seas. For passage to be considered "innocent," it must not be prejudicial to the peace, good order, or security of the coastal state. This means vessels exercising innocent passage must not engage in activities such as weapons exercises, intelligence gathering, or acts of pollution, among other specified prohibitions. The principle aims to balance a coastal state's sovereignty over its territorial waters with the global interest in freedom of navigation and global trade.

History and Origin

The concept of innocent passage has roots in customary international law, evolving over centuries as global trade and exploration expanded. Early interpretations of maritime rights often varied, with some states asserting extensive control over adjacent waters. However, with the advent of steamships and the increasing economic importance of shorter sea routes, the need for a universally recognized right of passage became evident. Customary law principles regarding innocent passage began to solidify in the mid-19th century.¹⁴

The formal codification of innocent passage occurred with the 1958 Convention on the Territorial Sea and the Contiguous Zone, and it was later affirmed and elaborated upon in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). This comprehensive treaty, widely considered the constitution of the oceans, defines the legal framework for maritime activities worldwide. Article 19 of UNCLOS specifically outlines what constitutes innocent passage, detailing a list of activities that would render passage non-innocent.¹³ A significant historical case illustrating the principle is the Corfu Channel case (1949), where the International Court of Justice affirmed the existence of the right of innocent passage even through international straits, emphasizing its importance for international navigation.¹² The ruling highlighted that states could not prohibit innocent passage through such vital waterways.

Key Takeaways

• Innocent passage allows foreign vessels to traverse the territorial sea of another state, provided the passage is not detrimental to the coastal state's peace, good order, or security.
• The principle is a core component of the United Nations Convention on the Law of the Sea (UNCLOS), balancing national sovereignty with navigational freedom.
• Activities like military exercises, research, fishing, or serious pollution render passage non-innocent.
• Submarines exercising innocent passage are required to navigate on the surface and show their flag.
• Coastal states may temporarily suspend innocent passage in specific areas for security reasons, but not in international straits.

Interpreting the Innocent Passage

Interpreting innocent passage involves assessing whether a vessel's conduct within a coastal state's territorial waters aligns with the strict requirements of international law. The United Nations Convention on the Law of the Sea (UNCLOS) provides a detailed, though not exhaustive, list of activities that are considered "prejudicial" and thus violate the conditions for innocent passage. These include any threat or use of force, exercising with weapons, collecting information prejudicial to defense, launching or landing aircraft or military devices, and carrying out research or survey activities.

For example, a foreign merchant ship transiting a territorial sea in a continuous and expeditious manner, without stopping or engaging in any of the proscribed activities, is exercising innocent passage. Conversely, a vessel that stops without necessity or conducts unauthorized scientific research within these waters would be considered to be engaging in non-innocent passage. The coastal state has the right to take necessary steps to prevent passage that is not innocent.¹¹ This interpretation is crucial for maintaining maritime security and avoiding international incidents.

Hypothetical Example

Imagine a cargo vessel, the "MV Global Voyager," registered in Country A, is transporting goods from Port X to Port Y. The most direct route requires it to pass through the territorial sea of Country B, which extends 12 nautical miles from its coastline. As the MV Global Voyager enters Country B's territorial sea, its crew ensures that all activities on board are strictly limited to navigation. They maintain a steady course and speed, do not engage in any fishing, research, or unauthorized communication, and their cargo manifest is in order.

Under the principle of innocent passage, Country B must allow the MV Global Voyager to transit its territorial sea without interference. The vessel's passage is "innocent" because it is continuous, expeditious, and does not pose any threat or prejudice the peace, good order, or security of Country B. If, however, the MV Global Voyager were to suddenly stop, deploy smaller boats, and begin surveying the seabed without prior authorization, its passage would cease to be innocent, giving Country B the right to intervene. This right of passage facilitates international shipping and the flow of supply chains globally.

Practical Applications

The principle of innocent passage is integral to maintaining stability in international relations and facilitating global commerce. Its practical applications are numerous:

• Commercial Shipping: It ensures that merchant vessels can traverse essential trade routes through foreign territorial waters without undue restrictions, reducing transit times and costs for global trade. This reliability is factored into logistics and maritime insurance.
• Naval Operations: While subject to stricter interpretations, warships also enjoy the right of innocent passage. This allows for naval transit through strategic waterways, contributing to geopolitical stability and the projection of presence, provided their activities remain non-prejudicial.
• Dispute Resolution: The defined framework of innocent passage provides a legal basis for resolving potential disputes between coastal states and transiting vessels. Adherence to UNCLOS helps prevent unilateral actions that could escalate tensions.
• Environmental Protection: The prohibition of "wilful and serious pollution" during innocent passage contributes to the protection of coastal environments.¹⁰ Coastal states can enforce regulations consistent with international law to prevent environmental damage from passing vessels.
• Humanitarian Aid: In emergency situations, the principle of "right of assistance entry" allows for ships, and sometimes aircraft, to enter territorial seas without permission for rescue or assistance, reinforcing humanitarian duties at sea.⁹

Limitations and Criticisms

While innocent passage is a cornerstone of the law of the sea, it is not without its limitations and has been the subject of various interpretations and criticisms. A primary area of contention lies in the subjective nature of what constitutes "prejudicial to the peace, good order, or security of the coastal State."⁸ The broad wording of UNCLOS Article 19 allows for differing interpretations, potentially leading to disputes. For instance, some coastal states may consider certain naval activities, such as reconnaissance, to be non-innocent, even if the transiting state views them as part of legitimate innocent passage.

Another limitation is the temporary suspension of innocent passage allowed for coastal states in specified areas of their territorial sea if "such suspension is essential for the protection of its security."⁷ While not applicable to international straits, this provision can impact navigational rights and disrupt shipping lanes in certain circumstances. Furthermore, the requirement for submarines to surface and show their flag during innocent passage is a specific constraint not applicable to surface vessels, reflecting a balance between security concerns and freedom of movement.

The application of innocent passage has also been challenged in specific contexts, such as the interception of vessels engaged in illegal activities like smuggling or illegal immigration. Recent discussions have arisen regarding the legality of coastal states stopping vessels within their territorial seas for reasons related to border control, with interpretations often hinging on whether such activities fall outside the scope of innocent passage.⁶ These complexities highlight the ongoing need for precise legal interpretation and international cooperation to ensure the principle's effective and fair application, impacting areas like foreign policy and international cooperation.

Innocent Passage vs. Transit Passage

Innocent passage and transit passage are both significant concepts within the Law of the Sea, but they apply to different maritime zones and entail distinct rights and obligations. The primary distinction lies in their scope and the degree of freedom granted to transiting vessels.

Confusion often arises because both rights facilitate passage through waters under a coastal state's sovereignty. However, transit passage provides a broader set of freedoms for ships and aircraft specifically within international straits, recognizing their critical importance for global navigation. Innocent passage, conversely, is more restrictive and subject to greater regulatory control by the coastal state over its territorial sea.

FAQs

What activities are prohibited during innocent passage?

During innocent passage, a foreign vessel cannot engage in activities such as any threat or use of force, exercising with weapons, collecting information to the prejudice of the coastal state's defense, launching or landing aircraft or military devices, fishing activities, carrying out research or survey activities, or any act of willful and serious pollution.⁴ Any such activity renders the passage non-innocent.

Can a coastal state stop a ship exercising innocent passage?

A coastal state may take necessary steps in its territorial sea to prevent passage that is not innocent.³ However, a coastal state generally cannot hamper or stop a ship that is genuinely exercising innocent passage in accordance with the rules of international law. Temporary suspension of innocent passage is permitted in specific areas for security reasons, but not in international straits.

Does innocent passage apply to warships?

Yes, warships also generally enjoy the right of innocent passage through the territorial sea of other states, though this is sometimes debated and coastal states may have specific regulations.² However, they must adhere to the same conditions as other vessels, ensuring their passage is not prejudicial to the peace, good order, or security of the coastal state. Submarines, for example, must navigate on the surface and show their flag.

What is the difference between innocent passage and freedom of navigation?

Innocent passage is a specific right of passage through a coastal state's territorial sea, which is an area under that state's sovereignty, subject to strict conditions.¹ Freedom of navigation, on the other hand, is a broader principle that applies primarily to the high seas and Exclusive Economic Zones (EEZs), where all states have the right to navigate without interference. While both support maritime mobility, freedom of navigation is a more expansive right in areas beyond national sovereignty, whereas innocent passage is a limited right within sovereign waters.

How wide is the territorial sea where innocent passage applies?

The territorial sea extends up to 12 nautical miles (approximately 22 kilometers or 14 miles) from a coastal state's baseline, which is typically the low-water line along the coast. The right of innocent passage applies throughout this entire zone.