argue that the article allows sufficient latitude to make own interpretations as to what
renders a passage not-innocent.
28
A ship in need of assistance is a good starting point for a discussion on innocent
passage. It was customary for ships including foreign ships, to seek and be granted
shelter or refuge in ports, and also to take such shelter in the territorial sea or, in
roadsteads, straits, bays, river-mouths, lakes, rivers, canals, and even in ports closed
to foreign commerce and military ports, until the state of distress is over. A question
here would be whether or not an occurrence of stopping or anchoring due to force
majeure distress while a vessel traverses the territorial seas of a coastal State is
incidental to the innocent passage and integral to the meaning of innocent passage?
And, if so, why the refusal, or even the possibility of a refusal of access to a place of
refuge?
29 If we are to go by the 1995 ruling of learned Justice Barr J. of the Irish
High Court of Admiralty in the m.v. Toledo
30 case, as per the evolving modern
practice, States clearly make a distinction between the “humanitarian” and “economic” aspects of distress and refusing entry to foreign ships in distress in the
territorial waters of States in which access is sought appears to be the norm rather
than the exception, especially where risk to cargo is purely economic or, in other
words, where property is in danger. Judge Barr went on to categorically reaffirm that
access to place of refuge is not an absolute right,
31 until member States came
together consequent to the famous troika of incidents
32
—here we are referring to
the Erika, the Castor and the Prestige—and adopted guidelines at the IMO in 2003
33
stating that while there is no obligation on a coastal State to grant refuge, it should
nevertheless weigh all factors and risks in a balanced manner and give shelter
whenever reasonably practicable. Again, the question here would be, what if the
coastal State decides that it is not reasonably practicable? In any case, with the
exception of the EU member States that are mandated
34 to grant a place of refuge,
28 Agyebeng (2006), pp. 371–399.
29 See Eric van Hooydonk (2003), pp. 403–445 for a review of four very contrasting theories on
place of refuge namely, the absolute right of access, the absolute right of refusal, balance of interests
and good management on the basis of right of access.
30 The m.v. Toledo was a Singapore flagged vessel bound for Frederica, Denmark from New
Brunswick, Canada with a cargo 14,000 metric tonnes potash, and abandoned on 21 February
1990 after she encountered heavy weather in the North Atlantic whereupon she was brought under
tow to Ireland on 23 February but refused entry by the Irish Ministry of Marine. The vessel was then
towed to Falmouth in April 1990 but ended up as constructive total loss. The owners consequently
filed a suit in Ireland.
31 Tanaka (2014), pp. 157–180.
32 The Andros Patria (December 1978), Presidiem (October 1980), Eastern Mariner I (February
1981), Stanislaw (April 1981) are amongst the lesser known vessels that were similarly faced with
refusals.
33 IMO (2004).
34 Article 20 of EU Directive 2002/59/EC and its subsequent amendment seek to address the issue of
place of refuge in EU Member States.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
233
renders a passage not-innocent.
28
A ship in need of assistance is a good starting point for a discussion on innocent
passage. It was customary for ships including foreign ships, to seek and be granted
shelter or refuge in ports, and also to take such shelter in the territorial sea or, in
roadsteads, straits, bays, river-mouths, lakes, rivers, canals, and even in ports closed
to foreign commerce and military ports, until the state of distress is over. A question
here would be whether or not an occurrence of stopping or anchoring due to force
majeure distress while a vessel traverses the territorial seas of a coastal State is
incidental to the innocent passage and integral to the meaning of innocent passage?
And, if so, why the refusal, or even the possibility of a refusal of access to a place of
refuge?
29 If we are to go by the 1995 ruling of learned Justice Barr J. of the Irish
High Court of Admiralty in the m.v. Toledo
30 case, as per the evolving modern
practice, States clearly make a distinction between the “humanitarian” and “economic” aspects of distress and refusing entry to foreign ships in distress in the
territorial waters of States in which access is sought appears to be the norm rather
than the exception, especially where risk to cargo is purely economic or, in other
words, where property is in danger. Judge Barr went on to categorically reaffirm that
access to place of refuge is not an absolute right,
31 until member States came
together consequent to the famous troika of incidents
32
—here we are referring to
the Erika, the Castor and the Prestige—and adopted guidelines at the IMO in 2003
33
stating that while there is no obligation on a coastal State to grant refuge, it should
nevertheless weigh all factors and risks in a balanced manner and give shelter
whenever reasonably practicable. Again, the question here would be, what if the
coastal State decides that it is not reasonably practicable? In any case, with the
exception of the EU member States that are mandated
34 to grant a place of refuge,
28 Agyebeng (2006), pp. 371–399.
29 See Eric van Hooydonk (2003), pp. 403–445 for a review of four very contrasting theories on
place of refuge namely, the absolute right of access, the absolute right of refusal, balance of interests
and good management on the basis of right of access.
30 The m.v. Toledo was a Singapore flagged vessel bound for Frederica, Denmark from New
Brunswick, Canada with a cargo 14,000 metric tonnes potash, and abandoned on 21 February
1990 after she encountered heavy weather in the North Atlantic whereupon she was brought under
tow to Ireland on 23 February but refused entry by the Irish Ministry of Marine. The vessel was then
towed to Falmouth in April 1990 but ended up as constructive total loss. The owners consequently
filed a suit in Ireland.
31 Tanaka (2014), pp. 157–180.
32 The Andros Patria (December 1978), Presidiem (October 1980), Eastern Mariner I (February
1981), Stanislaw (April 1981) are amongst the lesser known vessels that were similarly faced with
refusals.
33 IMO (2004).
34 Article 20 of EU Directive 2002/59/EC and its subsequent amendment seek to address the issue of
place of refuge in EU Member States.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
233