Rights of Innocent Passage in

Territorial Sea
Project submitted to Prof. Shabnam Shabana for her kind perusal and marks
allocation.

FEBRUARY 4, 2017
Ankush Chattopadhyay (13LLB011) AND Ashish Bhardwaj (13LLB016)
4th Year Students of Law, School of Law, The North Cap University
 Acknowledgement

This research was supported by the esteemed teachers of our institution as well as all the
students we study with. We are thankful to our colleagues who provided expertise that greatly
assisted in the research, although they may not agree with all of the interpretations provided in
this paper.

We are also grateful to Prof. Shabnam Shabhana for her immeasurable assistance in teaching
the subject and in clarifying all the doubts and questions we posed.

We have to express our appreciation to the Law Faculty of The North Cap University for
sharing their pearls of wisdom with us and for making and forging us not only into better human
beings but also into knowledgeable professionals.

We are also immensely grateful to all our peers and friends for their comments and their
continuous support without which it would have been a lot harder and nigh impossible to finish
this manuscript.

Although there were numerous people and entities helping and assisting us through this
journey, any errors that have been committed are our own and should not tarnish the reputations
of these esteemed professionals.
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 of Innocent Passage and Its Codification

Department of Defence 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 traversing 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 of 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 21 and 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.

Section 4(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.
Bibliography

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_pap
ers

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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Department of Defence Dictionary of Military and Associated Terms(as amended on

23rd January,2002) dept. of navy and air force, USA-
http://www.fas.org/irp/doddir/dod/jp1_02.pdf

See, Chronological lists of ratifications of, accessions and successions to the

Convention and the related Agreements as at 06 December 2008-
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Bernaerts And 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

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