THE RIGHT OF INNOCENT PASSAGE IN THE TERRITORIAL SEA FOR WARSHIPS - Rana Keiko - ALSA LC UNDIP

THE RIGHT OF INNOCENT PASSAGE IN THE TERRITORIAL SEA FOR WARSHIPS By: Rana Keiko ALSA Local Chapter Universitas Diponegoro

Divided in maritime zones, each one with distinct features, the maritime space covers the biggest part of earth surface. This in itself witnesses how vital it can be for States individually and most significantly for the humankind. The territorial sea is one of the maritime zones immediately adjacent to the land territory of a State. The right of innocent passage is one of the most important and controversial rights that foreign vessels enjoy while passing through the territorial sea of a State. A crucial question that is being raised is whether warships do fall under those vessels with the right to sail through those waters.

The only case so far that addressed the issue of innocent passage for warships is the Corfu Channel case. This dispute gave rise to three Judgments by the Court. It arose out of the explosions of mines by which some British warships suffered damage while passing through the Corfu Channel in 1946, in a part of the Albanian waters which had been previously swept. The ships were severely damaged and members of the crew were killed. The United Kingdom seised the Court of the dispute by an Application filed on 22 May 1947 and accused Albania of having laid or allowed a third State to lay the mines after mine-clearing operations had been carried out by the Allied naval authorities. The case had previously been brought before the United Nations and, in consequence of a recommendation by the Security Council, had been referred to the Court.1 The judgment however was given in favour of warships for navigation through international straits2 and it is for this reason that this case has been characterised as ¨not one in point” and certainly “of no avail”3 to be used in favour of the right of warships through the territorial sea.4 Nonetheless, the supporters of granting this right to warships have promoted a more general interpretation with regards to the Court´s understanding of the concept of innocent passage. Their interpretation relates to a more general application of the concept. In other words, they assert that a Court using as precedent the

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International Court of Justice, The Corfu Channel Case, https://www.icj-cij.org/en/case/1, [accessed 25 March 2019, 23:44].

2 Corfu Channel case, Merits (U.K. v. Alb.), 1949, (I.C.J) 28.

3 Zou Keyuan “Innocent passage for warships: The Chinese doctrine and practice” (1998) 29:3 Ocean Development & International Law, 195, 208.

4 Shao Jin “The question of innocent passage of warships after UNCLOS III” (1989) 13 Marine Policy 56, 65.

Corfu judgment would conclude that innocent passage is to be applied to warships navigating through the territorial sea.

Article 19 paragraph 2 of UNCLOS enumerates some of the activities which shall be considered to fall outside the scope of the concept of innocent passage. This enumeration is only an indication and thus exhaustive.5 This is derived from the wording of the last provision of the article which refers to “any other activity not having a direct bearing on passage”6 which leaves space for acts being subject to subjective interpretation. However, this shall not constitute the rationale behind the coastal State´s denial to prevent the innocent passage. It is presumed that in cases where the coastal State has doubts regarding the passage of a foreign vessel it shall provide the vessel with the benefit of the doubt and hence a presumption of innocence, by giving it the possibility to make clear what its real intentions are. In this way, unnecessary actions can be avoided.

As it would be anticipated, the activities which shall be prohibited include all those which require the use of force against the coastal State’s sovereignty, territorial integrity or political independence. 7In this respect, the use of any kind of weapons is strictly prohibited and will remove the right of the vessels to innocent passage. Another consequence of the use of weapons might be the immediate response on behalf of the coastal State which can ultimately result in the prevention of the passage and furthermore, the temporary suspension of any passage through the territorial sea . Suspension though shall not be discriminatory against foreign ships and shall only be enforced for the sake of the security of the coastal State. Fishing activities, research and survey activities, polluting activities, spying activities are all included in the prohibitive list of UNCLOS. It is estimated that the violation of the scope of Article 19 will ipso facto deprive a passage of its innocent character contrary to the violation of the law of the coastal State.8

Naval mobility is feasible and secured through the establishment and global recognition of the right of innocent passage. Whether warships shall enjoy the right of innocent passage has been one of the most hotly debated issues during the negotiation rounds before the adoption of the Convention.

Several commentators have been against this privilege for warships due to the simple fact that warships have on board several weapon mechanisms. This is their equipment and “[u]nlike the

5

Donald R. Rothwell and Tim Stephens, The International Law of the Sea (2010), Hart Publishing, 216.

United Nations Convention on the Law of the Sea (UNCLOS),, Art. 9(2)(l).

7 United Nations Convention on the Law of the Sea (UNCLOS), Art. 9(2)(a).

8 Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press 2015), 89.

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situation of merchant vessels, [in the case of warships] there is no commercial interest involved and there may be danger at times to the nation whose waters are being used.”9 The definition of warships is to be found in Article 29 defines a warship 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…”10 Following this definition, any vessels belonging to rebel movements and used for warfare are not considered warships. UNCLOS also secures the immunity of warships but it is quite unclear as to the actions that a coastal State can take against warships which do not comply with its rules and regulations.The only explicit action is to “require it to leave its territorial waters” . The responsibility of the flag state for the reimbursement of any damage caused by the noncompliance is also unambiguous under UNCLOS.

No explicit, express reference is made in UNCLOS stating that warships fall under the category of those vessels which enjoy the right of innocent passage. Likewise, no explicit provision excludes them from exercising this right. It can be presumed that warships were intended to fall under Article 17 since no distinction was made by the drafters. Moreover, it is accepted so far that submarines, which are obliged to navigate on the surface as a prerequisite, are for military services hence they can benefit from the right of innocent passage. Rosenne is of the opinion that the coastal State does not have the right to forbid the passage of any warship through its territorial waters but it retains the right to regulate those kinds of passages.11 In addition, Article 30 is to be applied to warships as well and noncompliance with the potential regulations of their passage constitutes solid ground for their incumbent exit from the territorial waters.

The United Nations (UN) have made extremely clear so far that the concept of innocence is inextricably bound to peace, good order and security. Article 1 of the UN Charter is the mirror of the creation of the United Nations in the first place, highlighting that one of the purposes of the UN is “to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace…”.12 In this respect, UNCLOS could not deviate from the foundational principle of the UN and accordingly provide that innocent passage shall mean the passage which is Bowen L. Florsheim, “Current Legislation and Decisions: Territorial Seas” (1970), 73, 75.

William K. Agyebeng, “Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea” (2006), Cornell Int'l L.J. 371, 387.

11 Shabtai Rosenne, “League of Nations Conference for the Codification of International Law” vol 4, 1418.

12 United Nations, Charter of the United Nations, UNTS XVI Art 1, http://www.un.org/en/charter-unitednations/ , [accessed 25 March 2019, 00:53].

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“not prejudicial to the peace, good order or security of the coastal State”.13 It is evident that the element of innocence is defined in a negative way. This provision imposes another condition on foreign vessels and that is the manner in which they exercise this right. Anything that might deem to endanger the peace and security of the coastal State will be conceived as a hostile activity and will not fall under the concept of “innocent passage”.

A detailed list is provided for by UNCLOS in order to eliminate the possibility of acts being interpreted by the coastal State unilaterally and in an arbitrary manner. Nonetheless, a list can only be indicative and nothing more than non-exhaustive. In this respect, masters of vessels must be extra cautious with their actions while in innocent passage.14

13 14

United Nations Convention on the Law of the Sea (UNCLOS), Art. 19(1).

Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Hart Publishing 2010), 216.