30. Innocent passage

Definition:
The concept of innocent passage is a principle of international maritime law that allows a foreign ship to pass through the territorial waters of another state, provided that the passage is not prejudicial to the peace, good order, or security of the coastal state.

It is mainly governed by Part II, Section 3 (Articles 17 to 32) of the United Nations Convention on the Law of the Sea (UNCLOS), 1982.

Key Features of Innocent Passage:

1. Territorial Sea:
   Innocent passage applies only to territorial seas, which are waters extending up to 12 nautical miles from a coastal state’s baseline.
2. Continuous and Expeditious:
   The passage must be continuous and expeditious. Ships are allowed to stop or anchor only if it is:
   • Incidental to normal navigation;
   • Due to distress;
   • To render assistance to persons, ships, or aircraft in danger.
3. Innocence Defined:
   Passage is innocent so long as it is not harmful to the coastal state. If the foreign ship commits activities that are hostile or violate the laws of the coastal state, the passage ceases to be innocent.

Permitted vs. Prohibited Activities:

Permitted:

• Navigation through territorial waters without stopping or delaying.
• Anchoring in emergency situations.
• Passage that does not threaten the peace or security of the coastal state.

Prohibited (Article 19 of UNCLOS):
Passage is not innocent if it involves activities such as:

• Threat or use of force.
• Exercises or practice with weapons.
• Spying or intelligence gathering.
• Propaganda harmful to the coastal state.
• Launching or landing aircraft or military devices.
• Pollution or illegal fishing.
• Research or survey activities without consent.
• Interfering with the coastal state’s communication systems.

Rights and Duties of Coastal State:

1. Rights:
   • May regulate innocent passage for safety and environmental protection.
   • May suspend innocent passage temporarily in specific areas if necessary for national security (Article 25).
2. Duties:
   • Must not hamper innocent passage unnecessarily.
   • Should ensure that their laws and regulations conform with international law.

Application to Warships:

• A controversial aspect is whether warships enjoy the right of innocent passage.
• Some states require prior notification or authorization before foreign warships can pass through.
• However, UNCLOS does not explicitly require prior notice for warships, leading to disputes.

Legal Cases and Examples:

• Corfu Channel Case (1949, ICJ): The UK warships passed through Albanian waters; Albania claimed violation of sovereignty. The International Court of Justice upheld the right of innocent passage but emphasized the need to respect the coastal state’s peace and order.
• China–U.S. Disputes in the South China Sea: The U.S. Navy conducts “freedom of navigation” operations, sometimes leading to disputes with China, which claims broader control over its territorial waters.