LAW OF THE SEA

ASSIGNMENT ON

RIGHT OF PASSAGE IN TERRITORIAL WATERS

Submitted by:

ANNIE MAMPILLY BBA LL.B (HONS) SEMESTER VIII ROLL NO.07 SCHOOL OF LEGAL STUDIES CUSAT

.Right to Passage in Territorial Waters.

TABLE OF CONTENTS
______________________________________________________________Page No. INTRODUCTION..4 RIGHT TO PASSAGE AND ITS CODIFICATION..5 RIGHT TO PASSAGE UNDER UNCLOS 1982: A WORMS EYE VIEW6 UNCLOS 1982: A BIRDS EYE VIEW..8-19 A. RULES APPLICABLE TO ALL SHIPS.8-15 THE CONCEPT OF PASSAGE.8 INNOCENT PASSAGE.9 POWERS OF COASTAL STATE IN RELATION TO INNOCENT PASSAGE.11 SEA LANES AND TRAFFIC SEPARATION SCHEMES IN THE TERRITORIAL SEA12 DUTIES OF VESSELS ENJOYING NAVIGATIONAL RIGHTS IN TERRITORIAL WATERS13 DUTIES OF COASTAL STATE..14 RIGHTS OF PROTECTION OF THE COASTAL STATE.14 CHARGES WHICH MAY BE LEVIED UPON FOREIGN SHIPS...15 B. RULES APPLICABLE TO MERCHANT SHIPS AND GOVERNMENT SHIPS OPERATED FOR COMMERCIAL PURPOSES15-17 CRIMINAL JURISDICTION ON BOARD A FOREIGN SHIP.16 CIVIL JURISDICTION IN RELATION TO FOREIGN SHIPS.17

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.Right to Passage in Territorial Waters. C. RULES APPLICABLE TO WARSHIPS AND OTHER GOVERNMENT SHIPS OPERATED FOR NON-COMMERCIAL PURPOSES.18-19 WHAT IS A WARSHIP?...................................................................................18 WHAT WILL HAPPEN IF A WARSHIP ACTS DETORGATORY TO THE COASTAL STATE REGULATIONS?..............................................................18 FLAG STATE RESPONSIBILITY FOR DAMAGES CAUSED BY WARSHIP OR OTHER GOVERNMENT SHIPS19 IMMUNITIES OF WARSHIPS AND OTHER GOVERNMENT SHIPS OPERATED FOR NON-COMMERCIAL PURPOSES.19 RELEVANT PRECEDENTS.20-23 CORFU CHANNEL CASE..20 S.S. LOTUS CASE...21 MASSIMILANO LATORRE v. UNION OF INDIA.22 THE QUEEN v. CARR AND WILSON.22 INDIAN SCENARIO24 CONCLUSION..25 REFERNCE...27

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.Right to Passage in Territorial Waters.

INTRODUCTION
The facet of territory in the concept of Statehood includes islands, islets, rocks and reefs.1 It is composed (ab inferos et usque ad sidera) by land territory (mainland) and its subsoil, internal waters and their soil and subsoil, and column of air (the aerial or atmospheric space). These spaces constitute the states territory strictly speaking.2

The water bodies are indeed a pertinent factor for Statehood. Just as we have laws for land mass, we also have laws governing territorial waters in the International platform. This assignment makes a meticulous analysis on the Right to passage in territorial waters. The said topic is well explicated with reference to the International instruments such as the UN Conventions of the Law of the Sea, the position in the Indian scenario and the national legislations. The relevant precedents of the Indian and International Courts are also referred here.

Beagle Channel Arbitration, 18 Apr.1977, Disposition of the Decision; Red Sea Islands Case, Phase One, Award of 9th October 1998; ILR 114, 2, Dispositif at 139-9; Quatar v. Baharin, Judgement of 16 March 2001, paras.200-9
2

Ian Brownlie, Principles of Public International Law, (Seventh Edition 2008)

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.Right to Passage in Territorial Waters.

RIGHT TO 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.3

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.

D.P. OConnell, International Law (2nd Edn.1970) London

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.Right to Passage in Territorial Waters.

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.4

Article 17 of UNCLOS 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.5 RIGHT TO PASSAGE UNDER UNCLOS 1982: A WORMS EYE VIEW

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

I. A. Shearer, Starkes International Law (11th Edn. 2007) Oxford University Press, New Delhi David Harris, Cases & Materials on International Law, (Seventh Edition2011), Rakmo Press Pvt. Ltd, Delhi

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.Right to Passage in Territorial Waters. of the living resources of the sea, prevention of fisheries law, scientific research, prevention of infringement of customs, fiscal, immigration, or sanitary laws.6

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.7

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.8

Ian Brownlie, Basic Documents in International Law, (Fourth Edition 1995) Oxford University Press Inc., New York
7

Ian Brownlie, Principles of Public International Law, (Seventh Edition 2008) Malcolm N. Shaw, International law, (Sixth Edition 2008), Cambridge University Press, New Delhi

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.Right to Passage in Territorial Waters.

UNCLOS 1982: A BIRDS EYE VIEW Let us now have a birds eye view on each provision of the UNCLOS 1982 which deals with right to passage. SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA Section 3 of the UN Convention on the Law of the Sea of 1982 focus on the various provisions that revolves around the right to passage in territorial waters. Section 3 is further divided into three subsections and these subsections together encompasses a total of 16 Articles. SUB SECTION A. RULES APPLICABLE TO ALL SHIPS This is the first Sub-Section under Section 3. It deals with those rules which govern all sorts of ships. Sub Section A covers Article 17 to Article 26. THE CONCEPT OF PASSAGE Article 18 of the UNCLOS embodies the meaning of passage. Passage, in line with UNCLOS means navigation through the territorial sea for the purpose of traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters. Navigation for the purpose of proceeding to or from internal waters or a call at such roadstead or port facility also fall here. This Article also puts forth certain conditions to deem navigation as passage. Passage shall be continuous and expeditious. However, passage includes stopping and
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.Right to Passage in Territorial Waters.

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.9 INNOCENT PASSAGE Innocent passage is a concept in law of the sea which allows for a vessel to pass through the territorial waters of another state subject to certain restrictions. Ships of all States, whether coastal or land-locked, are bestowed with the right of innocent passage through the territorial sea under Article 17. 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

Oppenheims, International Law (9th Edn. 1996) Longman Publications, London

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.Right to Passage in Territorial Waters. exercising right to innocent passage if asked by the coastal state. They should also take precautionary measures established for such ships by international agreement.10

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.11

Article 19 explicates that 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. However, the 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: (a) 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; (b) any exercise or practice with weapons of any kind;
10

Rattigan, Customary Law, (Sixteenth Edition 2007), Universal Law Publishing Co., New Delhi

11

Sharma O.P., The international law of the sea: India and the UN convention of 1982 (2009) Oxford university press, India

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.Right to Passage in Territorial Waters. (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; (f) the launching, landing or taking on board of any military device; (g) the loading or unloading of any commodity, currency or personcontrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; (h) any act of wilful and serious pollution contrary to this Convention; (i) any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l) any other activity not having a direct bearing on passage. POWERS OF COASTAL STATE IN RELATION TO INNOCENT PASSAGE UNCLOS confers powers on the Coastal State to frame laws and regulations with regard to innocent passage under Article 21. It shall impose laws in respect of the safety of navigation and the regulation of maritime traffic. It shall take measures for the protection of navigational aids, installations, cables, pipelines and conservation of the living resources of the sea. The coastal state shall also introduce laws for the prevention of infringement of the fisheries laws and regulations of the coastal State and preservation of the environment of the coastal State and the prevention, reduction
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.Right to Passage in Territorial Waters. and control of pollution. Further, it shall also bring about regulations for promoting marine scientific research and hydrographic surveys and also for the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. The coastal State is also bound to give due publicity to all such laws and regulations.12 Article 21 also envisages certain restrictions and limitations on these powers of a Coastal State. By no means, the laws and regulations drafted by a coastal State shall apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards. Finally, Article 21 mandates that 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. SEA LANES AND TRAFFIC SEPARATION SCHEMES IN THE

TERRITORIAL SEA In line with Article 22, the coastal State may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage

12

Bernaerts, Bernaerts Guide To The 1982 United Nations Convention On The Law Of The Sea (2006) Trafford Publishing Co.

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.Right to Passage in Territorial Waters. 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.13 Moreover, this Article lay down that tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials should compulsorily confine their passage to such sea lanes. Hence there shall be clear indicators of such sea lanes and traffic separation schemes on charts to which due publicity shall be given. The only condition that Article 22 depicts is that, a coastal State shall make any sort of regulations after duly considering the following factors: (a) the recommendations of the competent international organization; (b) any channels customarily used for international navigation; (c) the special characteristics of particular ships and channels; and (d) the density of traffic. DUTIES OF VESSELS ENJOYING NAVIGATIONAL RIGHTS IN TERRITORIAL WATERS According to Article 20, in the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Article 23 accentuates another duty on the foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances. Such ships shall, while exercising their right of innocent passage through the territorial sea, carry all those

13

James Harrison., Evolution of the law of the sea: developments in law-making in the wake of the 1982 Law of the Sea Convention

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.Right to Passage in Territorial Waters. necessary documents and shall also be bound to observe special precautionary measures established for such ships by international agreements.14 DUTIES OF COASTAL STATE The prime duty imposed by Article 24 of the UNCLOS is that the coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. Wherefore a coastal state is not empowered to impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage. The Coastal State shall not discriminate in form against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. Finally, the coastal State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea.15 RIGHTS OF PROTECTION OF THE COASTAL STATE UNCLOS 1982 empowers the coastal state to take all sorts of necessary measures within the ambit of its territorial sea to prevent those passages which are not innocent. Article 25 of UNCLOS 1982 deals specifically with this power. In instances of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has absolute 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.
14

Kissi Agyebeng, Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea Lynden Hall, Territorial Jurisdiction and the Criminal Law, [1972] Criminal Law Review p.276

15

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.Right to Passage in Territorial Waters. But, while exercising this right, the coastal State shall not in any form discriminate among foreign ships, suspend temporarily in specified areas of its territorial sea, the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.16 CHARGES WHICH MAY BE LEVIED UPON FOREIGN SHIPS Article 26 embodies two sub articles that elucidates on charges which may be levied upon foreign ships. The first sub article states that a coastal state shall not levy any charge on a foreign ship solely on the reason of its passage through the territorial sea. The second sub article enables the coastal state to levy charges upon a foreign ship passing through the territorial sea as payment for those specific services which are rendered to that ship. These charges shall be levied without discrimination. SUBSECTION B. RULES APPLICABLE TO MERCHANT SHIPS AND GOVERNMENT SHIPS OPERATED FOR COMMERCIAL PURPOSES Sub Section B specifically deals with those rules which can be applied to Merchant Ships and Government Ships which operate for commercial purposes in the International Scenario. This Sub Section consists of only two Articles Article 27 and Article 28.

16

Stephen Rose , Naval Activity in the Exclusive Economic Zone : Troubled Waters Ahead (1990) O.D.I.L., Vol.21

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.Right to Passage in Territorial Waters.

CRIMINAL JURISDICTION ON BOARD A FOREIGN SHIP Article 27 implicates that a coastal state shall not exercise its criminal jurisdiction on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage. The coastal state is not prevented from exercising criminal jurisdiction on board a foreign ship in the following instances: (a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. Under no circumstance the above three provisions shall affect the right of a coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. The coastal State may also, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall

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.Right to Passage in Territorial Waters. facilitate contact between such agent or officer and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken. With regard to the manner in which an arrest should be made, the local authorities shall have due regard to the interests of navigation. The coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. CIVIL JURISDICTION IN RELATION TO FOREIGN SHIPS The powers of a coastal State in relation to the exercise of its civil jurisdiction are given in Article 28 of UNCLOS 1982. According to this Article, the coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. Secondly, the coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. The aforementioned right shall be exercised without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.

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.Right to Passage in Territorial Waters.

SUBSECTION C. RULES APPLICABLE TO WARSHIPS AND OTHER GOVERNMENT SHIPS OPERATED FOR NON-COMMERCIAL PURPOSES The third Sub Section of Section 3 elucidates the rules with regard to Warships and other Government Ships which operate for purposes that are not commercial. This subsection covers Article 29 to Article 32. WHAT IS A WARSHIP? The definition of the term warship is embedded in Article 29 of the UNCLOS. In line with Article 29, "warship" means a ship belonging to the armed forces of a State which bears the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline. WHAT WILL HAPPEN IF A WARSHIP ACTS DETORGATORY TO THE COASTAL STATE REGULATIONS? Whenever there is a non-compliance by warships with the laws and regulations of the coastal State, Article 30 of UNCLOS comes into operation. In instances where any warship declines to comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for

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.Right to Passage in Territorial Waters. compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately. FLAG STATE RESPONSIBILITY FOR DAMAGES CAUSED BY WARSHIP OR OTHER GOVERNMENT SHIPS Article 31 enumerates the responsibility of the flag State for damage caused by a warship or other government ship operated for non commercial purposes. The flag State shall bound to bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law. IMMUNITIES OF WARSHIPS AND OTHER GOVERNMENT SHIPS OPERATED FOR NON-COMMERCIAL PURPOSES The final provision, i.e. Article 32 guarantees that none of the provisions in UNCLOS 1982 shall affect the immunities of warships and other government ships operated for non-commercial purposes. The exceptions in various Articles such as Article 30, Article 31, etc. shall be applicable.

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.Right to Passage in Territorial Waters.

RELEVANT PRECEDENTS CORFU CHANNEL CASE17 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

17

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

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.Right to Passage in Territorial Waters.

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. This series of incidents led to the Corfu Channel Case, where the United Kingdom brought a case against the People's Socialist Republic of Albania to the International Court of Justice. The Court rendered a decision under which Albania was to pay 844,000 to Great Britain, the equivalent of 20 million in 2006. But by removing the mines, Britain intervened the sovereignty. Therefore, the Britain was not entitled to receive compensation. S.S. LOTUS CASE18

This is a landmark decision in the area of exercising jurisdiction and delivered by the Permanent Court of International Justice. The Objective Territorial Principle, applied here. In this case, a French mail steamer, the LOTUS collided on the high seas with a Turkish Collier. It was alleged that the collision was due to the gross negligence of the officer of the watch on board the LOTUS. As a result of the collision, the Turkish Collier sank and 8 Turkish nationals on board perished. The Turkish Authorities instituted the proceedings against the officer of the watch, basing the claim to jurisdiction on ground that the act of negligence on board the LOTUS had produced effect on Turkish Collier and thus applying the Objective Territorial Principle the case could be tried in Turkey. By a majority decision the Permanent Court held that action of the Turkish Authorities was not inconsistent with the International Law.
18

1927 PCIJ series A, No.10

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.Right to Passage in Territorial Waters.

MASSIMILANO LATORRE v. UNION OF INDIA19

The 2012 Italian shooting in the Arabian sea is an incident under investigation of 15 February 2012, off the coast of southern India, in which the use of lethal force by members of an Italian navy Vessel Protection Detachment (VPD) on board oil tanker MV Enrica Lexie was linked to the death of two Indian fishermen on board a fishing boat. Ajesh Pink and Valentine aka Gelastine, natives of Tamil Nadu and Kerala respectively, were allegedly shot dead by Italian marines of the Reggimento San Marco, Marina Militare. The Italian Marines Massimiliano Latorre and Salvatore Girone are the alleged perpetrators of the crime. The case provides an ample room wherein it is evincible how a country can exercise its criminal jurisdiction and extra territorial jurisdiction in its territorial waters and Exclusive Economic Zone. THE QUEEN v. CARR AND WILSON20

In this case, certain bonds or valuable securities were stolen from a British oceangoing merchant ship whilst she was lying afloat, in the ordinary course of her trading, in the river at Rotterdam, in Holland, moored at the quay, and were afterwards wrongfully received in England by the prisoners with a knowledge that they had been thus stolen. The place where the ship lay at the time of the theft was in the open river, sixteen or eighteen miles from the sea, but within the ebb and flow of the tide. There

19

(2012) 252 KLR 794 QBD Vol. X. dated 25/11/1882

20

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.Right to Passage in Territorial Waters.

were no bridges between the ship and the sea, and the place where she lay was one where large vessels usually lie. It did not appear who the thief was, or under what circumstances he was on board the ship. At Page 85, it was held as follows: The true principle is, that a person who comes on board a British ship, where English law is reigning, places himself under the protection of the British flag, and as a correlative, if he thus becomes entitled to our law's protection, he becomes amenable to its jurisdiction, and liable to the punishments it inflicts upon those who there infringe its requirements. If the ship had sailed for this country before he got ashore with the bonds thus stolen, instead of after, and brought him to this country against his will, I say he could have been tried and convicted here. The conviction must be affirmed.

The alleged offence was committed in a British ship flying the British flag and the case was correctly tried and convicted in England.

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.Right to Passage in Territorial Waters.

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. Indias 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.

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.Right to Passage in Territorial Waters.

CONCLUSION 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.

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.Right to Passage in Territorial Waters.

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 (UNCLOS) 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 UNCLOS represents an exceptionally important contribution to international relations.

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.Right to Passage in Territorial Waters.

REFERNCE a) Books Referred 1. D.P. OConnell, International Law (2nd Edn.1970) London 2. David Harris, Cases & Materials on International Law, (Seventh Edition2011), Rakmo Press Pvt. Ltd, Delhi 3. I. A. Shearer, Starkes International Law (11th Edn. 2007) Oxford University Press, New Delhi 4. Ian Brownlie, Basic Documents in International Law, (Fourth Edition 1995) Oxford University Press Inc., New York 5. Ian Brownlie, Principles of Public International Law, (Seventh Edition 2008) 6. Malcolm N. Shaw, International law, (Sixth Edition 2008), Cambridge University Press, New Delhi 7. Oppenheims, International Law (9th Edn. 1996) Longman Publications, London 8. Rattigan, Customary Law, (Sixteenth Edition 2007), Universal Law Publishing Co., New Delhi 9. Sharma O.P., The international law of the sea: India and the UN convention of 1982 (2009) Oxford university press, India b) Articles Referred 1. Bernaerts, Bernaerts Guide To The 1982 United Nations Convention On The Law Of The Sea (2006) Trafford Publishing Co. 2. James Harrison., Evolution of the law of the sea: developments in law-making in the wake of the 1982 Law of the Sea Convention
(http://www.era.lib.ed.ac.uk/bitstream/1842/3230/1/J)

3. Kissi Agyebeng, Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea
(http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1024&context=lps_papers)

4. Lynden Hall, Territorial Jurisdiction and the Criminal Law, [1972] Criminal Law Review p.276 5. Stephen Rose , Naval Activity in the Exclusive Economic Zone : Troubled Waters Ahead (1990) O.D.I.L., Vol.21
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