INNOCENT PASSAGES UNDER THE UNITED NATION CONVENTION ON THE LAW OF THE SEA (UNCLOS) 1982 (A COMMENT ON THE

ARTICLE INNOCENT PASSAGE AND THE 1982 CONVENTION: THE INFLUENCE OF SOVIET LAW AND POLICY BY W.E. BUTLER) Written by : Ahmad Rawi The writer can be contacted at

scholars.assist@gmail.com
Abstract : Rights of innocent passage i.e. the right for ships to pass unhindered in the territorial waters of a coastal states has its origin in the traditional law of the sea. In UNCLOS 1982, this rights is embodied in Article 17 which provides that ships of all States enjoy the right of innocent passage in territorial sea. The explicit wordings of UNCLOS 1982 provide that this right is available both to merchant vessels and warships. However, in practice few states abide by the Convention in relation to warships innocent passage which call for a new international effort to standardized the treatment to warships exercising innocent passage over territorial water. Keywords : UNCLOS, innocent passage, warships Introduction The 1989 Black Sea Incident was only one of the many hostile incidents over warships rights of passage over a body of water adjacent to coastal states, though admittedly it is not attributable to the UNCLOS III, since the US has yet to ratify the Convention, and it would have been an anomaly had the US relied on a convention which it had chosen not to ratify. As such this paper will approach this issue from a academic and purely legal stand, without taking into account the geopolitical factors involved in many such an incident.

Innocent Passage : The Legal Framework under UNCLOS 1982 Under the UNCLOS 1982, the body of water adjacent to a coastal state is divided into zones, with a set of rules applicable to each zones, said rules having been derived from customary and conventional international law. Each zone is reflective of the degree of jurisdiction which the coastal state can exercise over it1. The zones are the Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (which may overlap the preceding three zone) and the High Sea. Of these zones, the territorial sea, contiguous zone and exclusive economic zone pose strategic difficulties in that UNCLOS 1982 accorded both the coastal states and the warships competing rights in these zones. However, this paper will only discuss the right of innocent passage in the territorial sea. First and foremost, in UNCLOS 1982, rights of innocent passage in the territorial sea is given to all ships2 which include warships3. Submarines ,however, are required to navigate on the surface when exercising this right4. Under UNCLOS 1982, warship defined as a ship belonging to the armed forces of a State bearing 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 discipline5. Warship is accorded a special status by the international law due to their strategic importance to the flag states national security. As a corollary necessity to enable them to carry out their duty to their respective states without interference, the international law gives them immunity from the

Dunlap, W.V.,Transit Passage in The Russian Arctic Straits,(1996) Vol. 1 No. 7 Durham University International Boundaries Research Unit Maritime Briefing 11
2

Art. 17

K. Hakapaa & E.J. Molenaar.,Innocent Passage-Past and Present,(1999) vol 23 no. 2 Marine Policy 137
4

Art. 20 Art. 29

jurisdiction of another states which is embodied in Art. 32 of the UNCLOS 1982 6. This immunity is absolute on the high seas i.e. waters that do not fall under the sovereignty or jurisdiction of any state7. In the territorial sea however, this immunity is curtailed and warships is subjected to several limitations as contained in Art. 19 UNCLOS 1982. Under UNCLOS 1982 regime, passage is innocent so long as it is not prejudicial to the peace, good order or security of the Coastal State and such passage shall be conducted in conformity with UNCLOS 1982 and other rules of international law8. A passage will no longer considered to be innocent where the ship engage in the following activities9 : activities which pose a threat or use of force against the sovereignty, territorial integrity or political independence of the Coastal State or in any other manner which violates the principle of international law embodied in the Charter of the United Nation; any exercise or practice with weapons of any kind; any act aimed at collecting information to the prejudice of the defence of the coastal state; any act of propaganda aimed at affecting the defence or security of the coastal state; the launching, landing or taking on board of any aircraft; the launching, landing or taking on board of any military device; the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal state; any act of willful and serious pollution contrary to UNCLOS 1982; any fishing activities; the carrying out of research or survey activities; any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal state and any other activities not related to passage. To balance the rights given to ships for innocent passage, the coastal state is accorded the right to take the necessary step in its territorial sea to prevent passage which is not innocent10.

Papanicolopulu, I. Warships and noise regulation: The international legal framework, Marine Pollution Bulletin, (2010) : 2 doi:10.1016/j.marpolbul.2010.05.002
7

Art. 95 Art. 19(1) Art 19(2) (a) to (g) Art. 25(1)

10

Warships Innocent Passage Despite the explicit wordings of UNCLOS 1982 which provides equal right of innocent passage to non-military ships and warships alike, the practice of the coastal states run counter to UNCLOS 1982. Current coastal states practice can be categorized as the consent regime i.e. prior consent of coastal states is required before warship can traverse the territorial water, which is not authorized by UNCLOS 1982 11. This regime run counter to UNCLOS 1982 in that it imply the possibility of denial of passage which run counter to Art. 24(1)(a) which provides that the coastal states shall not impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage. Another regime is the notification regime, where prior notification is required before warships enter the territorial water of a coastal state. Proponents of notification regime argue that the mere asking of information does not in any way denies passage nor impair it. The notification regime however has gained a backdoor entry into the curtailment of warships rights relating to innocent passage through the establishment of various types of Ship Reporting Systems (SRSs) and Vessel Traffic Services (VTSs). In essence, both systems give a coastal state right to request a ship in coastal waters to supply information, for example the name of the ship, its location and destination12. Warships Innocent Passage : States Practice A look into the practice of several states shows that States practice is not consistent with the explicit wording of UNCLOS 1982 on innocent passage of warships, despite the fact that these countries had ratified the Convention and must change their national laws to bring it in harmony with the Convention.

11

Supra, note 3, p. 138 Supra, note 3, p. 134

12

China, a state which has ratified UNCLOS 1982, requires foreign warships to obtain prior permission before they pass through the Chinese territorial sea, which is not consistent with UNCLOS 198213. The Chineses Declaration on China Territorial Sea, promulgated on September 4, 1958 and which is generally regarded as the first law to regulate the territorial sea of China stated that No foreign vessels for military use and no foreign aircraft may enter Chinas Territorial Sea and the air space above it without the permission of the Government of the Peoples Republic of China14. The promulgation by China was clearly a consequence of geopolitical conditions i.e. to hamper the US logistic efforts in their support for Taiwan15. China justify their stance arguing that since their sovereignty, under international law, extends to the territorial sea and the airspace above it, it follows naturally that they also have the right to prescribe that foreign aircraft and military vessels obtain their prior approval before proceeding on their territorial water16. China stance remains even after the country ratified UNCLOS 1982, citing among others, the practice of various states in requiring warships to obtain the coastal states prior approval before such warships can enter territorial water17. The table below tabulated the states practice in relation to restrictions on warships in innocent passage as of 1998.
No . Opposed both requirement Requires prior notification for prior approval and prior notification
13

Requires authorization

prior

Keyuan, Z. 'Innocent Passage for Warships: the Chinese doctrine and practice', Ocean Development and International Law, 29 (1989): 195.

14

Supra, note 13, p. 202 Ibid Ibid, p. 204 Ibid

15

16

17

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

France Germany Italy Netherlands Russian Federation Thailand United Kingdom United States

Croatia Denmark Egypt Guyana India Indonesia South Korea Libya Malta Mauritius Seychelles

Albania Algeria Antigua & Barbuda Bangladesh Barbados Cambodia China Congo Iran Maldives Myanmar Oman Pakistan Philippines Poland St. Vincent & Grenadines Sri Lanka Sudan Syria UAE Vietnam Yemen

17. 18. 19. 20. 21. 22. Source : K. Hakapaa & E.J. Molenaar18

Manners in which notification must be given or approvals must be obtained vary between countries and so are the conditions attached to the granting of such approval. Vietnam, for example, requires foreign warship that wish to enter its contiguous zone to seek permission from the Vietnam relevant authorities through diplomatic channel at least 30 days in advance and if permission is granted, the government to which the warship belongs has to notify Vietnam government 48 hours in advance before entering the contiguous zone. India subjected warships right to innocent passage to the condition that such warship use a designated sea lanes while Denmark limits the number of warships from a single nation that can traverse its territorial water at the same time19. Conclusion
18

K. Hakapaa & E.J. Molenaar.,Innocent Passage-Past and Present,(1999) vol 23 no. 2 Marine Policy 143
19

Keyuan, Z. 'Innocent Passage for Warships: the Chinese doctrine and practice', Ocean Development and International Law, 29 (1989): 206

A balance is clearly needed to be struck between the competing interests of warships to carry out their duty unhindered and the coastal states rights to maintain the integrity of their sovereignty in whose territorial water such warships are passing. More importantly, this balance must be incorporated in the UNCLOS III to avoid the Convention to be rendered useless in relation to innocent passage by warships, as it is right now. It is submitted that since the states practice of the majority of nations is to require some sort of approval and notification prior to warships entry into their territorial waters, such practice should be accepted as the special exception to UNCLOS III, and should be abided by all warships. It must be noted that modern warships threat to coastal states nowadays is no longer limited to its arsenal of weaponry, but also to its intelligence gathering capacity. As what had happened in the Black Sea Incident, the two warships were under order to engage in intelligence gathering activities on Soviets water to verify the readiness of Soviet forces20, acts which under UNCLOS 1982 will render the passage to lose its innocent. As such it is submitted that an exception to UNCLOS 1982 or a new international regime with respect to passage of warships on territorial water must be established.

20

Butler, W.E., Innocent Passage and the 1982 Convention : The Influence of Soviet Law and Policy, American Journal of International Law, April (1987) : 345

REFERENCES 1. 2. 3. 4. 5. 6. United Nation Convention on The Law Of the Sea 1982 Dunlap, W.V.,Transit Passage in The Russian Arctic Straits,(1996) Vol. 1 No. 7 Durham University International Boundaries Research Unit Maritime Briefing K. Hakapaa & E.J. Molenaar.,Innocent Passage-Past and Present,(1999) vol 23 no. 2 Marine Policy Papanicolopulu, I. Warships and noise regulation: The international legal framework, Marine Pollution Bulletin, (2010) : 2 doi:10.1016/j.marpolbul.2010.05.002 Keyuan, Z. 'Innocent Passage for Warships: the Chinese doctrine and practice', Ocean Development and International Law, 29 (1989) Butler, W.E., Innocent Passage and the 1982 Convention : The Influence of Soviet Law and Policy, American Journal of International Law, April (1987) : 345