except for the cases explicitly listed (which do not contemplate ‘boat migration’
as such).
Incidentally, opinion of the intelligentsia is fairly divided on the measures taken
by coastal States. At one end of the spectrum we have a cross-section which argues
in support of actions of the coastal States, suggesting that a vessel carrying asylum
seekers intending to request the protection of the coastal State removes the vessel
from the category of innocent passage. At the other end, we have States who take the
approach from the standpoint of humanitarian law that unless there is actual ‘loading’ or ‘unloading’ of persons in breach of immigration regulations, the right of
innocent passage should continue to hold good. Then, we have yet other States who
tread the middle path in proposing that seeking asylum does accord with international law, although there may be cases in which passage with asylum seekers aboard
may be non-innocent.
98
Several other points would emerge if we were to take international humanitarian
law into consideration. Refugees must not be penalised for unauthorised entry.
99
States are bound to interpret anti-smuggling/anti-trafficking provisions in keeping
with refugee law. The practices of retention at, or ejection from, territorial waters not
only neglects human rights but also violates the principle of non-refoulement, which
prohibits States from sending people to any country where they may face persecution, ill-treatment or other serious harm.
7 The Inherent Dimension
7.1 Passage of Warships Through Territorial Seas
The right of innocent passage for warships is possibly among the most controversial
of issues in the innocent passage doctrine given the diplomatic debates and international disputes which have generated throughout the history of the doctrine.
100
Many coastal states view passage of foreign ships through their territorial sea as a
potential threat to their national security. This underlying concern is believed to
have lead Japan and South Korea to limit the breadth of their territorial sea in the
vicinity of several international straits through their waters to six miles, leaving a
corridor of high seas through the straits thereby denying right of transit passage to
foreign vessels that are only able to enter the territorial sea under the more restrictive
regime of innocent passage.
101
98 Moreno-Lax (2017).
99 Refugee Convention 1951, Article 31 Refugees unlawfully in the country of refuge.
U.N.T.S. Vol. 189-I-2545.
100 Zou (1998).
101 Bateman (2005).
246
A. Hebbar
as such).
Incidentally, opinion of the intelligentsia is fairly divided on the measures taken
by coastal States. At one end of the spectrum we have a cross-section which argues
in support of actions of the coastal States, suggesting that a vessel carrying asylum
seekers intending to request the protection of the coastal State removes the vessel
from the category of innocent passage. At the other end, we have States who take the
approach from the standpoint of humanitarian law that unless there is actual ‘loading’ or ‘unloading’ of persons in breach of immigration regulations, the right of
innocent passage should continue to hold good. Then, we have yet other States who
tread the middle path in proposing that seeking asylum does accord with international law, although there may be cases in which passage with asylum seekers aboard
may be non-innocent.
98
Several other points would emerge if we were to take international humanitarian
law into consideration. Refugees must not be penalised for unauthorised entry.
99
States are bound to interpret anti-smuggling/anti-trafficking provisions in keeping
with refugee law. The practices of retention at, or ejection from, territorial waters not
only neglects human rights but also violates the principle of non-refoulement, which
prohibits States from sending people to any country where they may face persecution, ill-treatment or other serious harm.
7 The Inherent Dimension
7.1 Passage of Warships Through Territorial Seas
The right of innocent passage for warships is possibly among the most controversial
of issues in the innocent passage doctrine given the diplomatic debates and international disputes which have generated throughout the history of the doctrine.
100
Many coastal states view passage of foreign ships through their territorial sea as a
potential threat to their national security. This underlying concern is believed to
have lead Japan and South Korea to limit the breadth of their territorial sea in the
vicinity of several international straits through their waters to six miles, leaving a
corridor of high seas through the straits thereby denying right of transit passage to
foreign vessels that are only able to enter the territorial sea under the more restrictive
regime of innocent passage.
101
98 Moreno-Lax (2017).
99 Refugee Convention 1951, Article 31 Refugees unlawfully in the country of refuge.
U.N.T.S. Vol. 189-I-2545.
100 Zou (1998).
101 Bateman (2005).
246
A. Hebbar