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Florian H.Th. Wegelein

Innocent Passage

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

1. Introduction

The right of innocent passage became important under UNCLoS '82 as a counterweight to the extension of the coastal states' jurisdiction: as many formerly open straits fell forthwith under national jurisdiction within the territorial sea some measure was necessary to ensure navigational rights. The regime of innocent passage applies to different areas on the sea. First it confers the right of passage to ships in the territorial sea of a foreign state, it also applies in straits used for international navigation, and thirdly to ships traversing archipelagic waters. The right of innocent passage is claimed to be a right under customary law and it is as such generally accepted. However, there is no universal agreement of what this right encompasses. Even after UNCLoS '82 entered into force in 1994, the scope of this right remained unresolved. The question of what the content of the international customary right is, becomes even more important as UNCLoS '82 consists of a well-woven set of provisions, which gives rise to the argument that single provisions cannot be considered without the broader context. Inasmuch as UNCLoS '82 is a package-deal in this sense, provisions may have to be interpreted in the light of the various trade-offs relating to each other. For states that are not a party to UNCLoS '82 it is equally important to know to what extent the relevant provisions have transformed into customary law or conversely in what respects customary law might differ. Only to the extent that conventional provisions mirror customary law, they can be invoked by Non-parties as a basis for state conduct. So not only is the question what UNCLoS '82 says about innocent passage, i.e. how states interpret the relevant provisions, but also whether or not these interpretations can be referred to as being part of the international customary law.

2. The right of Innocent Passage

The existence of the right to innocent passage within the territorial waters of a foreign state is not questioned under customary law 1. Article 18 of UNCLoS '82 defines the content of this right as it is generally understood: traversing the territorial sea in continuous and expeditious manner not subject to Coastal State consent. What is open to discussion is the scope of that right, i.e. especially whether or not the coastal state can make the passage of foreign ships subject to certain conditions (which in turn can render the passage to be subject of Coastal State consent). The right of innocent passage as a derivative of the freedom of navigation is threatened from two sides: the extensive application of limitations that are purported as part of the right itself (Article 21(1)), and the inherent limitation of the right via its definition or interpretation claimed by some states. The discussion evolves in relation to certain categories of ships: nuclear powered vessels or ships transporting hazardous waste 2, 3 and the category of warships. Various states claim that the passage of some or all of these is subject to some form of prior notification or authorization. A differentiation between the categories appears not to be necessary as the question of a permission of innocent passage is a matter of principle at this point: if certain ships can be required to give prior notice the right of innocent passage as such is qualified. If states do so, they generally claim that the right to require notification or authorization is inherently coupled with the right of innocent passage.

Notification is the least interfering with the right of free navigation as it just requires the ship to inform the coastal state of its intent to enter territorial waters 4. What the state does with this information is then subject to the rights of that state to suspend or limit the passage in its territorial waters. The scope of this right may be determined internationally or bilaterally and even unilaterally in practice - a possibility that leads to the criticism of weakness of international law. This right, it would appear, is especially limited by the prohibition of discriminating measures against foreign states.

Authorization, however, implies in itself that the coastal state considers the pursuance of the right of innocent passage to be subject to its consent. Authorization presupposes just like notification a communication of the intended conduct to the Coastal State authorities. Unlike the requirement of notification, however, authorization necessitates as a second element the responding communication by that authority granting the request to proceed. If the coastal state, for what reason it holds sufficient, refuses to give authorization, it appears that the ship pursuing the original aim to pass the territorial waters would be in violation of international law because its passage can not be considered innocent: this approach considers authorization a constituent of innocence.

Another way of effectively negating the right of innocent passage to warships was advanced by the USSR in the 80s 5. The USSR designated certain sea-lanes within its territorial waters - which it is allowed to do according to Art. 22 - and declared, any passage other than through these sea-lanes would be considered non-innocent. No sea-lanes were designated in the Black Sea, which basically excluded the territorial sea from all innocent passage. In principle, the USSR declared every passage outside the designated sea lanes as non-authorized.

Accordingly, the justification to limit innocent passage can be accomplished by a coastal state in two ways: 1. by interpreting the relevant articles as allowing it to do so, 2. by claiming that the passage in question is not innocent and does not fall under the right of innocent passage. The first way is of more general interest since it defines most likely what the content of the right is, while the second is only important to validate states' opinion on a case to case basis (unless, of course, the passage of certain ships is considered non-innocent per se).

2.1. Innocent Passage after the Geneva Convention

As the predecessor of UNCLoS '82, the Geneva Convention is widely respected as codifying the international customary law at the time of adoption 6. The wording of the Geneva Convention on the Territorial Sea is open for the interpretation that a certain passage may not fall under the right of innocent passage. The Coastal State is accorded a wide discretion as the Convention left open to states what activities were innocent and failed to limit the prejudicial activities to those engaged in while actually passing the territorial sea 7. Moreover, the negotiation history suggests that innocent passage of warships could be subjected to the requirement of prior notification or even authorization 8. In sum: "Whether Article 23 authorizes the coastal State to insist on prior permission as an aspect of its regulatory competence, or whether such 'permission' is determined by the uncertain rules of customary international law, was a matter of major concern to subsequent State practice and a key item in the Third United Nations Conference on the Law of the Sea." 9

2.2. Customary Law as reflected by the Convention from '82?

a. The text of UNCLoS '82

Ambassador Koh, second president of the Third UN Conference, stated after UNCLoS '82 had been adopted "...that this Convention is not a codification Convention. The argument that... the Convention codifies customary law or reflects existing international practice is factually incorrect and legally insupportable." 10

In spite of this concluding remark, the argument has been repeatedly made, that the text of it represented international customary law 11 - and as time passes by, customary law can change, i.e. if countries accept UNCLoS '82 as custom it eventually does so. The argument was especially advanced in relation to freedom of navigation in the light of the extension of the jurisdiction of coastal states, saying that these extensions would only be recognized on the basis that in return the rights of ship states as represented by the rights to passage would be acknowledged. However, this concern was - arguably - addressed sufficiently by the invention of the Transit Passage Regime. Although this regime applies only to straits, it was specifically established to counterbalance the effect of the jurisdictional extensions, and in fact this regime keeps all navigational links between different parts of the sea open. The regime of innocent passage in its contested meaning applies only where ships cross coastal waters for reasons of convenience 12.

Article 21 confers upon the coastal state the right to regulate passage according to international standards and also the right to enforce these standards, however, there is a caveat in Article 24: innocent passage may not be hampered. This, and a detailed list of what constitutes non-innocent passage in Article 19, is the most apparent change in relation to innocent passage as laid down in the Geneva Convention. Crucial parts, however, virtually repeat the Geneva provisions and remain thus ambiguous 13.

It is argued that the text of UNCLoS '82 is all inclusive, requirements such as prior notification or authorization would not fall under Article 21 since they are not mentioned in Article 21(1) 14. The counter-argument is based on a different interpretation of innocent passage as such: innocent passage in itself encompasses the right to such requirements, the text in Article 21(1) only expands on what Article 19(1) already implies and is thereby simply a list of various aspects. 15 At first sight the text supports rather the former position as the list appears to be enumerative 16. In this connection, reference has been made to the negotiation history of UNCLoS '82 17 purportedly establishing that the text cannot be interpreted as to allowing for prior requirements 18. As some states promoted different proposals with a clearer language on the subject claiming a right to require prior notification/authorization, the subsequent withdrawal of these various proposals is interpreted as abandoning, in effect, that position in total. The clearer formulation did indeed not find a majority vote during the conference 19. However, the relating statement of the president expressively reiterates that the withdrawal was not to be understood that the respective states changed their mind 20; on the contrary, the states acted upon request of the president not to push the issue as that was considered to endanger the whole treaty 21. Neither legal consideration nor conviction but the political or strategic observation that a conclusion could not be reached at that point prevailed: this cannot give an argument in either direction. Thus the history of the negotiations cannot be invoked from either side. Certainly, neither the Seven-Power Proposal 22 nor the 28-Power Proposal 23 were reflected by the final draft; but at the same time the maritime powers failed to make clear what was still open to discussion after the Geneva Convention. 'All ships' was in customary law not uniformly understood to include warships. The point is, although the list may be exhaustive, the right to require prior notification or authorization is not a right, which has to be explicitly listed since warships constitute a category of their own 24. Against this background the supporters of this reading should have insisted on clearer words. A face value interpretation seems not to be appropriate in the light of the differing opinions of the negotiators 25. Just to argue that others failed to press their issue reduces the negotiations to a mere power play without regard to the particular characteristics of public international law 26. It, in effect, amounts to a rather imperialistic interpretation of the negotiation history ignoring the controversy, which might very well persist.

The systematic argument was made that Articles 29 and 30 "purport to tailor the innocent passage provisions to warships" 27. However, the position of these provisions can also support the opposite interpretation: warships are dealt with separately. Also, the position of the articles does not conflict with the opposite view in another respect: Article 30 spells out special rules applying to warships in innocent passage, nothing is thereby said how the warships obtain the right of innocent passage, i.e. be it because the right is afforded to all ships or by virtue of a prior notification or permission of the coastal state. This article can be read just as well as defining the passage of a warship once it has been granted.

Accordingly, an interpretation of the text of UNCLoS '82 does not give a conclusive result. Both sides may find support in the history and in the wording of the provisions on innocent passage.

b. Declarations of states made upon signature and accession

Under UNCLoS '82 the parties have a limited right 28 to make declarations and statements on the treaty provisions 29. Of the 122 states that have become a party to the treaty, 44 states have made declarations upon ratification or accession, 35 states have made declarations or statements upon signature 30. The respective declarations have mainly been made before UNCLoS '82 entered into force and only a small fraction of these refer to innocent passage. Still it is interesting to analyze what the states say about the right of innocent passage as these declarations reflect the opinio juris of that particular state in a brief but eminent statement.

Some states made it clear upon signing UNCLoS '82 that, according to their interpretation of the text they were entitled to require prior notification and/or authorization from foreign warships 31. On ratification of UNCLoS '82 some states have made declarations to the same effect 32. The objects of concern in those declarations, that refer to innocent passage at all, are warships and nuclear powered vessels 33. Most States do not distinguish between prior notification or authorization but speak of permission. Permission, however, is in fact the same as authorization since it, too, requires a communication with the respective authorities to obtain the clearance for the intended activity. As UNCLoS '82 does not explicitly provide for a requirement of prior notification or authorization, states in their statements claim that innocent passage through their territorial waters is inherently subject to either notification or authorization 34, 35.

Other states upon their accession have made objections to such claims stating that a right to such requirements would not exist under UNCLoS '82. These objections have especially weight as they were made by important maritime powers 36. It is remarkable that these objections were made after the coming into force of UNCLoS '82 and that they were made at all. That these countries felt compelled to make such an objection upon ratification of UNCLoS '82, says at the very least that the question whether or not the coastal state may require prior notification/authorization still needs to be defended under UNCLoS '82. In this connection the Joint Statement of the USSR and the USA is of significance, too (as the USA is not a party to UNCLoS '82). In it both states gave their interpretation of innocent passage as clearly comprising the passage of warships without any prior requirements 37. This gives important evidence of opinio juris since it is the expressed view of two major maritime powers. Still, the states, that explicitly require prior notification and/or authorization, outnumber those that are equally explicit opposed to it. The latter, however, have more economic and political power - and they have to loose the most as they have the major naval forces in the world.

The foregoing leads to the conclusion that the interpretation of the relevant text among the parties is still not settled; the positions on the right of innocent passage remain in fact the same as during the negotiations. The argument that UNCLoS '82 codifies the content of customary international law, is thus not valid.

c. States practice: legislation

States legislation is an important source as to what states think the international law is, assuming that the states, in enacting their coastal law, abide by what they think their obligation under international law is. Outside UNCLoS '82, this information gives some clues as to existing or evolving state practice both, if the law is changed or kept as it is.

Some of the states implemented in parts or in total the provisions of UNCLoS '82, even without being a party to it. A number of states, however, specifically mentions the right of innocent passage in their territorial waters. Interestingly, more states have legislation, that contains a requirement of prior notification or authorization before entry into territorial waters, than have made declarations to the same effect 38. Apparently, for these states there is no contradiction between the terms of UNCLoS '82 and the domestic legislation. A positional change of those states, that had included such a requirement in their legislation, after the entry into force of UNCLoS '82, is not recorded (at least no change has been brought to the attention of the UN). The few industrialized nations 39, that require prior notification or authorization in their legislation, have neither made declarations to the effect that the provisions of UNCLoS '82 overrule contradicting national law, nor have they enacted new legislation. That suggests that these states see the requirement as an inherent limitation of the right of innocent passage because otherwise they would be in violation of UNCLoS '82 40. Outside the context of UNCLoS '82 this again invalidates the interpretation of the right of innocent passage being a custom without any requirements inasmuch states consistently claim the opposite: if not even the parties to UNCLoS '82 agree on the concept of innocent passage, how then can the provision mirror customary law?

The number of states, that persistently and officially objects to claims of prior notification or authorization, is a little smaller 41, however, these objectors represent the major maritime nations. As much as there is local custom 42 in international law there also might be a subject matter related custom: if the few countries interested in the subject matter arrive at a common understanding this may form the customary law in the particular area. However, this is not the case in relation to innocent passage as noted above, since coastal states and ship states are involved on opposing ends of the same question, i.e. the navigational use of certain parts of the oceans. Customary law can not be established by some powerful countries as any followers would be compelled by force not by their opinio juiris.

Chile incorporated in its legislation a statement of reciprocity, which leaves open what its opinio juris on the subject actually is. Also open to some guessing is the opinion of those states, that do not mention the right of passage at all. In such a case one may assume that the UNLCoS '82 regime is incorporated by virtue of the state's ratification, but it would be incorporated with all the uncertainties of the text itself. However, as there is no clear statement, one must assume that those countries will follow what will generally be viewed to be customary law. The positions on the question remain nevertheless divided, and ratifying UNCLoS '82 does not necessarily change the view of the particular state on the matter.

The Islamic Republic of Iran has caused an exchange of diplomatic notes on the law regarding innocent passage. In its Marine Areas Act, Iran requires warships and vessels carrying dangerous or noxious substances to obtain prior authorization 43. In reaction some states have expressed their objection to that legislation 44. It is interesting to look at the different language of the respective notes. While the USA, Qatar, and the European countries are quite clear and specific in relation to the required authorization, i.e. that it is not covered by international law, others like Kuwait, the United Arab Emirates, and Saudi Arabia use a much broader language condemning the Iranian Act as a whole not referring to particular provisions. This suggests the argument that the latter states do not entirely agree with the former countries; and it maybe doubted that the requirement of prior notification (instead of authorization) would have caused the same reactions among the latter states. Especially if one bears in mind that the United Arab Emirates reserved the right to require prior notification on signing UNCLoS '82, and Saudi Arabia made a declaration to the same effect in relation to nuclear powered vessels and vessels carrying nuclear material.

Apart from the question of warships, another development has increasingly endangered the unhampered right of innocent passage: transport of hazardous or noxious waste has become a major concern of several countries in recent years 45. One of the results is the Basel Convention 46 but also national legislation on the particular matter 47. The Basel Convention requires by virtue of Art. 6(1) the notification of the transit state 48. The interpretation of this article varies in accordance with the approach towards the regime of innocent passage 49. UNCLoS '82, in contrast, requires ships with hazardous substances only to carry certain documents, there is no mentioning of prior notification, these ships seem to fall within the category of all ships in respect of innocent passage. States that prohibit transboundary movement of such vessels through their territorial sea do this on the basis that the passage in question is generally prejudicial to the security of the coastal state 50, which leads in effect to the same result as to require prior authorization: passage prejudicial to the security of the coastal states is not innocent and thus subject to coastal state consent. The coastal state's argument is attacked from the ship state's point of view with principally the same arguments as in respect of warships and nuclear powered vessels 51.

In the wake of the Basel Convention several states along the routes of nuclear shipments denied these ships entry into their waters. The journey of the Japanese Pintail in early 1995 carrying nuclear waste from Europe to Japan raised numerous concerns among the countries along the course. Several states gave the Japanese government notice that they would not allow the ship to pass through their waters 52. Other states expressed concern in a Special Consultative Meeting convened by IMO Secretary General, William A O'Neill in March 1996 53. While these were singular events they still raise concern in relation to the innocent passage regime in general: it might turn out that the interpretation of the innocent passage regime is not as unambiguous as some states would like to have it.

In his annual reviews of the developments in the Law of the Sea, the Secretary General notices that the right of innocent passage through the territorial sea is still an issue generating objections 54. A clear language as to the state practice on the matter is missing, the Secretary General simply quotes the text that still gives rise to the tensions 55.

d. States practice: actions

The USA has, in various cases and in an organized manner since 1979, asserted its right of innocent passage thereby opposing 'excessive' claims of coastal states. The most famous of these acts was the incident in the Black Sea in January 1988 leading eventually to the Joint Statement of the USSR and the USA 56. In this statement the two superpowers agreed on an interpretation of innocent passage that The practice under the FON program by the US Navy 57, trying to solidify a right whose scope is uncertain both under UNCLoS '82 and customary law may seem at least questionable 58 to the extent that the activity may lack a legal basis. On the other hand, it is the only possibility that international law offers: state practice needs to be persistent, both in the factual and diplomatic sense, to establish a custom. It is this unique characteristic of customary law that justifies or legitimizes this conduct.

Finally, as far as customary law is concerned, it was argued that the judgment of the ICJ in the Corfu Channel Case "stated that coastal states do not have the right to prohibit innocent passage in times of peace" 59. First, a single judgment does certainly not establish a custom in international law, it is at best very good evidence to the extent that the ICJ usually has to establish a rule of customary law for its decisions by careful consideration of state practice and opinio juris. And secondly, the ICJ did indeed find a customary rule relating to the passage of warships. But this rule applied only to passage through straits during peace time 60. Nothing is thereby said about the regime applicable in the territorial sea of a state. The Corfu Channel Case judgment is mirrored in the provisions on straits in Part III of UNCLoS '82. The straits regime is different from that in the territorial sea already by virtue of its systematic position: the right of innocent passage in straits is given in Art 37 ff. In addition, the innocent passage through straits is expressis verbis non-suspendable - as the ICJ said in the Corfu Channel Case 61 and is explicitly held in Art 43.

3. Conclusion

Although the right of innocent passage became more important as a result of extended claims of jurisdiction, the entry into force of UNCLoS '82 has not changed the principally opposed positions on innocent passage. On the contrary, the content of the right of innocent passage has continued to be under discussion since the adoption of UNCLoS '82 . As the convention text is not interpreted uniformly it cannot be concluded that it does not permit the requirement of prior notification. States' practice as to what the content of the international customary law is not conclusive, and the two major positions continue to exist as the secret operation of naval forces is a condition of itself and coastal states fear the interference with their sovereignty. And new intergovernmental agreements, like the Basel Convention, appear not to assume that prior notification is a violation of innocent passage.

One question remains: why do most of the maritime powers refuse to notify coastal states in advance of their peaceful operations? This is not necessarily in accordance with the doctrine of the new world order that wavered through the United Nations for a while after the Gulf War.

For states with little or no maritime forces the territorial sea represents a security zone. Only a limited number of nations has the technology available to detect any reconnaissance activities during innocent passage that would render that passage non-innocent, e.g. investigation, surveillance, etc, and clearly warships are simply by their nature more likely to engage in such activities than other vessels, that enjoy the presumption of innocence under UNCLoS '82. The one that hides his moves raises quite naturally the suspicion of others.

As the majority of states is silent on the point of prior notification or authorization and the two positions remain to be in existence, both under the UNCLoS '82 and under customary law, it is hard to say which way the pendulum will strike. The major maritime powers have the means to establish custom by continuously pursuing their purported right - albeit against normative and legal criticism. Eventually the silence of other states may be interpreted as acknowledging that right. But as it stands, passiveness works for the coastal state as the right of passage can only be established by passage; and judging from the objections made, only the industrialized nations with warship fleets worry about the right of innocent passage. Thus, it is really the maritime powers that have to defend the interest of innocent passage for literally all ships.

A solution might be brought about by a ruling of the Tribunal on the Law of the Sea on this matter as such a judgment would at least bring the discussion to a rest, that relates to the interpretation of the UNCLoS '82 text.

Florian H.Th. Wegelein
Seattle, February 1999