Innocent Passage Under UNCLOS: An
Exploration of the Tenets, Trials,
and Tribulations
Anish Hebbar
Abstract The right of innocent passage in territorial waters available to ships of any
State is, perhaps, among the most contested of the regimes under the United Nations
Convention on the Law of the Sea, 1982 with possibly the widest range of interpretation and implementation and an abundant inconsistency between theory and State
practice. This chapter explores the varied tenets and facets of the regime of innocent
passage and along the way, also examines the multifarious trials and tribulations to
which the regime is subjected around the globe.
1 Introduction
It would be no overstatement to say that the right of innocent passage in territorial
waters is, perhaps, among the most contested of the regimes under the United
Nations Convention on the Law of the Sea, 1982 with possibly the widest range of
interpretation and implementation and an abundant inconsistency between theory
and State practice. Indeed, the right of innocent passage lies at the intersection of the
two diametrically opposite theories of mare liberum
1 and mare clausum
2 and
represents an outcome of an eventual compromise between the two competing
theories
3
first recognized in the 1958 Convention on Territorial Sea and Contiguous
A. Hebbar (*)
World Maritime University, Malmö, Sweden
e-mail: AH@WMU.SE
1 Mare liberum which literally means ‘The Free Sea’ is the principle that the seas are international
territory and all nations are free to use it for seafaring trade. It was published in 1609 by the Dutch
jurist and philosopher Hugo Grotius.
2 Mare clausum is John Selden’s rebuttal to Hugo Grotius’ ‘Mare liberum’ and argues that a sea,
ocean or other navigable body of water is under an exclusive jurisdiction of a State and closed or
inaccessible to other States.
3 Hakapää (2013).
© Springer Nature Switzerland AG 2020
P. K. Mukherjee et al. (eds.), Maritime Law in Motion, WMU Studies in Maritime
Affairs 8, https://doi.org/10.1007/978-3-030-31749-2_12
227
Exploration of the Tenets, Trials,
and Tribulations
Anish Hebbar
Abstract The right of innocent passage in territorial waters available to ships of any
State is, perhaps, among the most contested of the regimes under the United Nations
Convention on the Law of the Sea, 1982 with possibly the widest range of interpretation and implementation and an abundant inconsistency between theory and State
practice. This chapter explores the varied tenets and facets of the regime of innocent
passage and along the way, also examines the multifarious trials and tribulations to
which the regime is subjected around the globe.
1 Introduction
It would be no overstatement to say that the right of innocent passage in territorial
waters is, perhaps, among the most contested of the regimes under the United
Nations Convention on the Law of the Sea, 1982 with possibly the widest range of
interpretation and implementation and an abundant inconsistency between theory
and State practice. Indeed, the right of innocent passage lies at the intersection of the
two diametrically opposite theories of mare liberum
1 and mare clausum
2 and
represents an outcome of an eventual compromise between the two competing
theories
3
first recognized in the 1958 Convention on Territorial Sea and Contiguous
A. Hebbar (*)
World Maritime University, Malmö, Sweden
e-mail: AH@WMU.SE
1 Mare liberum which literally means ‘The Free Sea’ is the principle that the seas are international
territory and all nations are free to use it for seafaring trade. It was published in 1609 by the Dutch
jurist and philosopher Hugo Grotius.
2 Mare clausum is John Selden’s rebuttal to Hugo Grotius’ ‘Mare liberum’ and argues that a sea,
ocean or other navigable body of water is under an exclusive jurisdiction of a State and closed or
inaccessible to other States.
3 Hakapää (2013).
© Springer Nature Switzerland AG 2020
P. K. Mukherjee et al. (eds.), Maritime Law in Motion, WMU Studies in Maritime
Affairs 8, https://doi.org/10.1007/978-3-030-31749-2_12
227