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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
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.
1
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 discipline”5.
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
1 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
3 K. Hakapaa & E.J. Molenaar.,”Innocent Passage-Past and Present”,(1999) vol 23 no. 2 Marine Policy 137
4 Art. 20
5 Art. 292
jurisdiction of another states which is embodied in Art. 32 of the UNCLOS 19826. 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.
6 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
8 Art. 19(1)
9 Art 19(2) (a) to (g)
10 Art. 25(1)3
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
12 Supra, note 3, p. 1344
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 Chinese’s 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
China’s Territorial Sea and the air space above it without the permission of the Government of
the People’s Republic of China’14.
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
for prior approval and prior
Requires prior notification Requires prior
authorization
13 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
15 Ibid
16 Ibid, p. 204
17 Ibid5
notification
1. France Croatia Albania
2. Germany Denmark Algeria
3. Italy Egypt Antigua & Barbuda
4. Netherlands Guyana Bangladesh
5. Russian Federation India Barbados
6. Thailand Indonesia Cambodia
7. United Kingdom South Korea China
8. United States Libya Congo
9. Malta Iran
10. Mauritius Maldives
11. Seychelles Myanmar
12. Oman
13. Pakistan
14. Philippines
15. Poland
16. St. Vincent &
Grenadines
17. Sri Lanka
18. Sudan
19. Syria
20. UAE
21. Vietnam
22. Yemen
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
18 K. Hakapaa & E.J. Molenaar.,”Innocent Passage-Past and Present”,(1999) vol 23 no. 2 Marine Policy 1436
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
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 Soviet’s 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.
19 Keyuan, Z. 'Innocent Passage for Warships: the Chinese doctrine and practice', Ocean Development and International Law, 29 (1989): 206
20Butler, W.E., ’Innocent Passage and the 1982 Convention : The Influence of Soviet Law and Policy’, American Journal of International Law, April (1987) : 345
7
REFERENCES
1. United Nation Convention on The Law Of the Sea 1982
2. Dunlap, W.V.,”Transit Passage in The Russian Arctic Straits”,(1996) Vol. 1 No. 7 Durham University International Boundaries Research Unit Maritime Briefing
8
3. K. Hakapaa & E.J. Molenaar.,”Innocent Passage-Past and Present”,(1999) vol 23 no. 2 Marine Policy
4. Papanicolopulu, I.’ Warships and noise regulation: The international legal framework’, Marine Pollution Bulletin, (2010) : 2 doi:10.1016/j.marpolbul.2010.05.002
5. Keyuan, Z. 'Innocent Passage for Warships: the Chinese doctrine and practice', Ocean Development and International Law, 29 (1989)
6. Butler, W.E., ’Innocent Passage and the 1982 Convention : The Influence of Soviet Law and Policy’, American Journal of International Law, April (1987) : 345
9
