Innocent Passage
after the coming into force of the UN Convention on the Law of the Sea, 1982


1 E.D. Brown, The International Law of the Sea, Vol. 1, Aldershot 1994, p 64, F. Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea, London 1990, p 38

2 they are expressively mentioned in UNCLoS '82: Art 23 requires these ships to carry sufficient documentation on board

3 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal - signed 22nd March 1989, entered into force 05th May 1992 - is explicitly concerned with these ships

4 one form of notification is established by ship reporting systems which become more and more instituted mainly for security reasons in the regulation of maritime traffic

5 the 1982 Law of the Union of Soviet Socialist Republics on the State Frontier and subsequent implementing regulations limited the innocent passage in Soviet territorial waters to designated routes: In the Baltic Sea, according to the traffic separation systems in the area of the Kypu Peninsula (Hiiumaa Island) and in the artea of the Porkkala Lighthouse: In the Sea of Okhotsk, according to the traffic separation schemes in the areas of Cape Aniva (Sakhalin Island) and the Fourth Kurile strait (Paramushir and Makanrushi islands); and in the Sea of Japan, according to the traffic separation system in the region around Cape Kril'on (Sakhalin Islands). In other areas the Soviet Union would consider passage as non-innocent, i.e. the right of innocent passage would practically not exist.

6 see F. Ngantcha, p 138ff

7 E.D. Brown: [the coastal state] could … classify a particular military mission, passage of a mammoth oil tanker […] to or from a disliked foreign country as being ipso facto prejudicial to its security and therefore non-innocent…, p 55; see also Weston Burnett, Mediterranean Mare Clausum in the Year 2000?: An International Law Analysis of Peacetime Military Navigation in the Mediterranean, 34 Naval L.Rev. 75(104)

8see E.D. Brown, pp 64f (citing Prof. Sørensen), finding, however, the contrary argument "stronger", see also I. Shearer Navigation Issues in the Asian Pacific Region, 199(206), in J.Crawford/D.Rothwell, eds, The Law of the Sea in the Asian Pacific Region, Dordrecht 1995. It is noteworthy that the International Law Commission during the preparation of the Conference concluded that the Convention should recognize the right to said requirements.

9 F. Ngantcha, p 142

10 T.T. Koh, "A Constitution for the Oceans", in United Nations, The Law of the Sea: Official Text of the United Nations Convention on the law of the Sea with Annexes and Index, New York 1983, p xxxv

11 for example the joint statement of the USA and USSR from Sept 23 1989

12 the most important difference between the two regimes is that passage through straits is not suspendable in the case of military exercises, exploration, or similar activities.

13 see above: the question of innocent passage was not settled in Geneva, I. Shearer, p 206, F. Ngantcha, p 121

14 this is the position of the USA and other maritime powers that oppose the requirements of prior notification/authorization

15 Similarly, Art. 19(2) can be read as all inclusive, and since warships are not exempted in that article they can enjoy the right of innocent passage just as any other ship. This argument is however not significant for the question of prior requirements, the reference to Art 19 can be made on a case by case basis when it is to establish that a state right- or wrongfully denied the right of innocent passage in a specific case.

16 In this respect Article 21 is different from Article 19 inasmuch as the list in Article 19(2) gives some examples of what usually constitutes a conduct prejudicial to the peace, good order or security of the coastal State in the sense of Article 19(1).

17 Early during the negotiation eight countries introduced draft articles in which the requirement of prior notification or authorization of warship passage was stated in the clearest terms: "[t]he coastal state may require notification to or authorization by its competent authorities for the passage of foreign warships through its territorial sea ...", UN Doc A/AC 138/SCII/L18 (1973), reprinted in 12 ILM 573(579-80).

18J.W. Rolph, Freedom of Navigation and the Black Sea Bumping Incident: How "Innocent" Must Innocent Passage Be?, 135 Mil.L.Rev., p 137 (155); W. Schachte/ P. Bernhardt, International Straits and Navigational Freedoms, 33 Va.J. Int'l L. p 527 (533)

19S.N. Nandan/S. Rosenne, eds., United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. II, Dordrecht 1993, at 21.8f, and E.D. Brown, p 68f

20 the Statement at the 176th meeting read: "They would, however, like to reaffirm that their decision [to withdraw] is without prejudice to the rights of coastal States to adopt measures to safeguard their security interests,…"

21 see Commentary at 21.10

22 this proposal provided: "The navigation of warships includes the right to require prior authorization or notification of passage through the territorial sea," promoted the Philippines, Argentina, China, Ecuador, Madagascar, Pakistan and Peru

23 the intention was to add the word "security" in Art. 21(1)(b) which was understood to entitle the coastal state to the desired requirement, promoted by Algeria, Bahrain, Benin, Cape Verde, China, Congo, Egypt, Guinea-Bissau, Dijbouti, Iran, Libya, Malta, Morocco, Oman, Pakistan, Papua New Guinea, Philippines, Syria, North Korea, Romania, Sao Tome and Principe, Sierra Leone, Somalia, Surinam, Uruguay, both Yemens

24 see Richardson, Law of the Sea: Navigation and Other Traditional National Security Considerations, 19 San Diego Rev. 553(560), see also statement of the American delegate, Elihu Root, to the North Atlantic Coast Fisheries Tribunal in 1912, 11 North Atlantic Coast Fisheries Arbitration (US v Great Britain) 2007 (PCA 1912)

25 Philip Allott, Power Sharing in the Law of the Sea, 77 AJIL 1(6) pointing at the difficulty to apply traditional methods of interpretation of international law in the context of UNLCoS '82: "It is very difficult to unravel the story of how a text came to acquire its final form, especially, as at UNCLOS, when all substantive discussion was off the record. Instead of the will of a majority opposed to the will of the minority, there is the interaction of many wills within the groups and among the groups, interacting not merely in relation to a draft text and a limited number of proposed amendments but in relation to an infinite number of possible alternative textual formulations, as various as the ingenuity and the patience of the negotiators will allow."

26 note that the Vienna Convention on the Law of Treaties (concluded at Vienna on 23 May 1969 Came into force on 27 January 1980) refers to subsequent state practice for the interpretation of treaty provisions, in that sense negotiations are but a dominant point in the continuum of the emergence of international law

27 J.W. Rolph, p 154

28 Art. 310 states: "[declarations or statements shall] not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State."

29 In public international law the opinion of a state becomes very important for establishing whether or not a particular rule has become part of the customary law. Persistent objection is in this connection as significant as official assertion of a certain right. And even for the treaty itself state practice remains important according to Art 31(3)(b) of the Vienna Convention, it provides that any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation [shall be taken into account]

30See report of the secretary general, A/52/487, Nov. 1997, para. 14

31that is, e.g., Iran, Sao Tome and Principe, Yemen Arab Republic, China, North Korea, Pakistan

32 that is, e.g., Yugoslavia, Oman, Romania

33 Libya requires all ships to give prior notification but this is clearly a single case

34 4 and 5 states respectively, 6 states made express objections to these declarations upon ratification (ratio 3:2)

35 The argument that this is contrary to Art. 310 can be invoked by both sides: in both cases it is either a simple interpretation or it modifies the legal effect, i.e. it allows a state to require prior notification/authorization, or it allows the state to pass innocently dependent on the point of view.

36 Netherlands, Italy, France, Germany, the United Kingdom, and the Russian Federation; For the Russian Federation as a successor of the USSR the objection is rather a restatement of its joint statement with the USA in 1989. The opinion of the United Kingdom was expressed before during the negotiations of the treaty itself.

37 See 28 I.L.M. 1444

38 26 and 15 require prior authorization or notification respectively (19 and 11 respectively are party to the Treaty, roughly a half of these has made declarations to that effect)

39 e.g. Denmark and Sweden

40 this is also true for states that signed the Treaty but have not ratified it yet: according to the Vienna Convention they must not jeopardize the objectives of the Treaty.

41 parties of UNCLOS among these are UK, France, Netherlands, Italy, Russian Federation, FRG, most prominent but not a party: the USA which runs the so called FON program since '79 to object the claims practically….; other states object on a case to case basis, see diplomatic exchange in relation to the laws of Iran in LoS Bull. 34

42 as acknowledged by the ICJ in the Asylum Case (Colombia vs Peru), 1950 I.C.J. 265 (Judgment of Nov. 20)

43 Art. 9 of the Marine Areas Act 1993

44 USA, 25 LoS Bull. p 101-3, Germany, 30 LoS Bull. p 60, Kuwait, 32 LoS Bull. p88, Qatar, 32 LoS Bull. 89, Saudi Arabia, 32 LoS Bull. p 90, United Arab Emirates, 32 LoS Bull. p 91

45 see for a general account: Rebecca A Kirby, The Basel Convention and the Need for United States Implementation, 24 Ga.J.Int'l&Comp.L. 281,2

46 adopted March 22 1989, entered into force in May 05 1992, at present (July 97) 117 parties

47 e.g. Iran requires prior authorization because of the delicate environmental situation of the Persian Gulf, 33 LoS Bull. p 88

48 Art 6 (1) reads: "The State of export shall notify,…, in writing, through the channel of the competent authority of the State of export, … the States concerned of any proposed transboundary movement…" This appears to be at odds with Art 4 (12):"Nothing in this Convention shall affect in any way…the exercise by ships and aircraft of all States of navigational rights and freedoms as provided for in international law…" But certainly only if there is no such right as to require prior notification. Countries have made declarations according to their understanding of innocent passage in the relevant provisions in UNCLoS III, the positions are equally diverse.

49 Germany, Italy, Japan, the Netherlands, Singapore, the United Kingdom, and the United States have indicated that nothing in the Basel Convention shall be deemed to require the giving of notice to or the consent of any State for the passage of hazardous wastes on a vessel under the flag of a party exercising its rights of innocent passage through the territorial sea under international law

50 this argument was/is advanced by states along the routes of nuclear waste shipments, see S.D. Poulin, Freedom of Navigation Reaching Critical Mass for Nuclear Cargoes?, 42 Federal Lawyer 16 (17), and below

51 see for example USA, 31 LoS Bull. p 39

52 amongst these states were Brazil, Chile, Argentine, see D. Currie, The Right to Control Passage of NuclearTransport Vessels Under International Law, 7 April 1995 (last visited 11 January 1999)

53 Although the position papers submitted at this meeting do not employ the words notification or authorization clearly, they describe a desire to be advised or consulted prior to the voyage, see Eugene R Fidell, Maritime Transportation of Plutonium and Spent Nuclear Fuel, 31 Int'l Law. 757,8

54 report of the Secretary General, A/52/487, para. 15, a change in the attitude of states is not reported, states rather persistently hold up their notification/authorization requirements, para. 64ff

55 ibid, para. 66

56 Union of Soviet Socialist Republics--United States: Joint Statement With Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, entered into Jackson Hole, Wyoming, Sept. 23, 1989), reprinted in 28 I.L.M. 1444 (1989), Rule 2 restates basically the US point of view: "All ships, including warships, regardless of cargo, armament or means of propulsion, enjoy the right of innocent passage through the territorial sea in accordance with international law, for which neither prior notification nor authorization is required."

57 see for a full account W.J. Aceves, The Freedom of Navigation Program: A Study of the Relationship between Law and Politics, 19 (1996) Hastings Int'l and Comp L.Rev. 259 (277); George Galdorisi, The United States Freedom of Navigation Program: A Bridge for International Compliance with the 1982 United Nations Convention on the Law of the Sea?, 27(1996) OD & IL, p 399 (404)

58 this practice might fall under the abuse of right doctrine, a principle, while not yet established as international customary law, consistent with the principles of good faith; see Special Working Committee on Maritime Claims of the American Society of International Law, See American Society of International Law, Nonviolent Responses to Violence-Prone Problems: The Cases of Disputed Maritime Claims and State- Sponsored Terrorism (1991). p4

59 W. Schachte/ P. Bernhardt, at p 533,4

60 see The Corfu Channel case (merits), ICJ reports 1949, p 28 (30)

61 in the Corfu Channel case the right of innocent passage in straits was under the scrutiny by the judges, not the right of innocent passage in general