On the one hand a Coastal State has the duty not to impair movement of vessels in
its territorial waters under UNCLOS
10 and at the same time, on the other hand, ships
are expected not to engage in activities that are prejudicial to the peace, good order
and security of a State.
11 But, if we are to couple the lack of uniformity and wide
variation in implementation together with the emerging trends and methods of
gradually chipping away at this valuable right, it is perhaps an opportune time to
introspect where and in which direction are these creeping jurisdictions headed and,
whether there will be a point in time, in the future when the Right of Innocent
Passage
12 will be a notion that would effectively be ultimately set to R.I.P.
Innocent passage is a mature subject, discussed in several scholarly texts and
journal articles over the years. While most writings focus on one or several aspects of
the right of innocent passage, this chapter is an attempt to provide a comprehensive
and well-rounded overview, exclusively devoted to innocent passage. In the process
of doing so, it emerged that the tenets of the regime of innocent passage and the trials
and tribulations to which it is subjected could broadly be classified into six themes
or, dimensions—action, temporal, spatial, cargo, social and inherent wherein, the
spatial dimension further comprises economic, safety and environmental factors and,
the cargo dimension includes health, safety, environment and security factors, as
illustrated in Fig. 1.
This perspective and rather new understanding of innocent passage is perhaps the
highlight of this chapter’s contribution to the existing body of literature on innocent
passage. We now proceed to examine in-depth, how the right of innocent passage is
impacted in each of the different dimensions, illustrating wherever possible with
practical examples of State practice.
2 Socio-Cultural Perspectives
The Law of the Sea Convention does distinguish between freedom of navigation on
the high seas
13 and transit through international straits
14 and, the rights of innocent
passage and navigation in territorial waters
15 and archipelagic waters
16 and sea
lanes.
17 However, there is an interesting socio-cultural perspective put forth by
Sam Bateman
18 to explain the sensitivity of coastal States when it comes to the
10 UNCLOS Article 24, Duties of Coastal State, p. 33.
11 UNCLOS Article 19, Meaning of innocent passage, p. 31.
12 UNCLOS Article 17, Right of innocent passage, p. 30.
13 UNCLOS Article 87, Freedom of the High Seas, p. 57.
14 UNCLOS Article 38, Right of transit passage, p. 37.
15 UNCLOS Article 17, Right of innocent passage, p. 30.
16 UNCLOS Article 52, Right of innocent passage, p. 42.
17 UNCLOS Article 53, Right of archipelagic sea-lanes passage, pp. 42–43.
18 Bateman (2005), pp. 57–66.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
229
its territorial waters under UNCLOS
10 and at the same time, on the other hand, ships
are expected not to engage in activities that are prejudicial to the peace, good order
and security of a State.
11 But, if we are to couple the lack of uniformity and wide
variation in implementation together with the emerging trends and methods of
gradually chipping away at this valuable right, it is perhaps an opportune time to
introspect where and in which direction are these creeping jurisdictions headed and,
whether there will be a point in time, in the future when the Right of Innocent
Passage
12 will be a notion that would effectively be ultimately set to R.I.P.
Innocent passage is a mature subject, discussed in several scholarly texts and
journal articles over the years. While most writings focus on one or several aspects of
the right of innocent passage, this chapter is an attempt to provide a comprehensive
and well-rounded overview, exclusively devoted to innocent passage. In the process
of doing so, it emerged that the tenets of the regime of innocent passage and the trials
and tribulations to which it is subjected could broadly be classified into six themes
or, dimensions—action, temporal, spatial, cargo, social and inherent wherein, the
spatial dimension further comprises economic, safety and environmental factors and,
the cargo dimension includes health, safety, environment and security factors, as
illustrated in Fig. 1.
This perspective and rather new understanding of innocent passage is perhaps the
highlight of this chapter’s contribution to the existing body of literature on innocent
passage. We now proceed to examine in-depth, how the right of innocent passage is
impacted in each of the different dimensions, illustrating wherever possible with
practical examples of State practice.
2 Socio-Cultural Perspectives
The Law of the Sea Convention does distinguish between freedom of navigation on
the high seas
13 and transit through international straits
14 and, the rights of innocent
passage and navigation in territorial waters
15 and archipelagic waters
16 and sea
lanes.
17 However, there is an interesting socio-cultural perspective put forth by
Sam Bateman
18 to explain the sensitivity of coastal States when it comes to the
10 UNCLOS Article 24, Duties of Coastal State, p. 33.
11 UNCLOS Article 19, Meaning of innocent passage, p. 31.
12 UNCLOS Article 17, Right of innocent passage, p. 30.
13 UNCLOS Article 87, Freedom of the High Seas, p. 57.
14 UNCLOS Article 38, Right of transit passage, p. 37.
15 UNCLOS Article 17, Right of innocent passage, p. 30.
16 UNCLOS Article 52, Right of innocent passage, p. 42.
17 UNCLOS Article 53, Right of archipelagic sea-lanes passage, pp. 42–43.
18 Bateman (2005), pp. 57–66.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
229