Zone
4 and, thereafter, transcribed in the Law of the Sea Convention done in 1982.
5
The fact that the principle emerged, so to say, as a consequence of the evolution over
time in the concept of the territorial sea,
6 from originally being an area construed or
rather assimilated to be the property of the coastal State with consequential freedom
to exclude nationals and vessels of any other State into a jurisdictional area with
attendant right of innocent passage to all ships of all States only adds to the
contestation. If for centuries, nations have conceded that “every Prince, [whose]
Country adjoyns to the Sea. . . has [some] portion of the Sea belonging to him in
property, as an [accession] of the Land, or appendant to it, or rather incorporated
with it, like Veins and Arteries, integral parts of the [same] Body,”
7 it is quite natural
that some coastal States continue to admit it as an unavoidable limitation to coastal
State competence even to this day while modern day maritime States cherish it as
one of the cornerstones of the law of the sea.
For the purposes of providing an overview, it must be stated that UNCLOS
devotes an entire section (Part II, Section 3) to innocent passage in the territorial
sea. Apart from laying down rules applicable to all ships (Sub-section A; articles
17–26), it provides for specific rules applicable to merchant ships and government
ships operated for commercial purposes (Sub-section B; articles 27 and 28) and, to
warships and other government ships operated for non-commercial purposes
(Sub-section C; articles 29–32).
8
However, when it comes to giving effect to the provisions of the Law of the Sea
Convention, the right of innocent passage is found to be incorporated in national
legislation in at least four different ways. One group of States have simply
reproduced the relevant articles of the 1982 Convention together with the list of
‘activities’ in Article 19(2), although with some variation. Another set of States have
chosen to incorporate only the definition of the right of innocent passage but not the
list of activities, apparently following upon the older 1958 Convention. A third set of
States have simply recognized the right of innocent passage, emphasizing in some
cases on its interpretation in conformity with the 1982 Convention. Then there is a
fourth group of States that implicitly recognize the right of innocent passage in
various ways.
9
4 U.N.T.S. Vol. 516, p. 205. 29 April 1958.
5 U.N.T.S. Vol. 1833-A-31363.
6 Some scholars suggest that the early roots of the concept of innocent passage may also be traced to
the writings of St. Augustine, “transitus innoxius . . . quijure humanae societatis aequissimo patere
debebat” which, if translated from the Latin reads, “innocent passage . . . that according to the law
of the human society had to be left open in a highly equitable manner”.
7 IR Philip Medows, Observations concerning the dominion and sovereignty of the seas: Being an
abstract of the marine affairs of England 42 (Bell & Howell Micro Photo Division, 1970) (1689)
cited in Agyebeng (2006), pp. 377–378.
8 U.N.T.S. Vol. 1833-A-31363.
9 Hakapää and Molenaar (1999), pp. 131–145.
228
A. Hebbar
4 and, thereafter, transcribed in the Law of the Sea Convention done in 1982.
5
The fact that the principle emerged, so to say, as a consequence of the evolution over
time in the concept of the territorial sea,
6 from originally being an area construed or
rather assimilated to be the property of the coastal State with consequential freedom
to exclude nationals and vessels of any other State into a jurisdictional area with
attendant right of innocent passage to all ships of all States only adds to the
contestation. If for centuries, nations have conceded that “every Prince, [whose]
Country adjoyns to the Sea. . . has [some] portion of the Sea belonging to him in
property, as an [accession] of the Land, or appendant to it, or rather incorporated
with it, like Veins and Arteries, integral parts of the [same] Body,”
7 it is quite natural
that some coastal States continue to admit it as an unavoidable limitation to coastal
State competence even to this day while modern day maritime States cherish it as
one of the cornerstones of the law of the sea.
For the purposes of providing an overview, it must be stated that UNCLOS
devotes an entire section (Part II, Section 3) to innocent passage in the territorial
sea. Apart from laying down rules applicable to all ships (Sub-section A; articles
17–26), it provides for specific rules applicable to merchant ships and government
ships operated for commercial purposes (Sub-section B; articles 27 and 28) and, to
warships and other government ships operated for non-commercial purposes
(Sub-section C; articles 29–32).
8
However, when it comes to giving effect to the provisions of the Law of the Sea
Convention, the right of innocent passage is found to be incorporated in national
legislation in at least four different ways. One group of States have simply
reproduced the relevant articles of the 1982 Convention together with the list of
‘activities’ in Article 19(2), although with some variation. Another set of States have
chosen to incorporate only the definition of the right of innocent passage but not the
list of activities, apparently following upon the older 1958 Convention. A third set of
States have simply recognized the right of innocent passage, emphasizing in some
cases on its interpretation in conformity with the 1982 Convention. Then there is a
fourth group of States that implicitly recognize the right of innocent passage in
various ways.
9
4 U.N.T.S. Vol. 516, p. 205. 29 April 1958.
5 U.N.T.S. Vol. 1833-A-31363.
6 Some scholars suggest that the early roots of the concept of innocent passage may also be traced to
the writings of St. Augustine, “transitus innoxius . . . quijure humanae societatis aequissimo patere
debebat” which, if translated from the Latin reads, “innocent passage . . . that according to the law
of the human society had to be left open in a highly equitable manner”.
7 IR Philip Medows, Observations concerning the dominion and sovereignty of the seas: Being an
abstract of the marine affairs of England 42 (Bell & Howell Micro Photo Division, 1970) (1689)
cited in Agyebeng (2006), pp. 377–378.
8 U.N.T.S. Vol. 1833-A-31363.
9 Hakapää and Molenaar (1999), pp. 131–145.
228
A. Hebbar