Innocent Passage, and Straits

In one line

The territorial sea is sovereign territory through which foreign ships may nevertheless sail, provided the passage is innocent, and through international straits the right is stronger still.

In the wording a student can write in an exam: under article 17 of the Convention on the Law of the Sea, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. Passage means navigation for the purpose of traversing the territorial sea or of proceeding to or from internal waters, and must be continuous and expeditious. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State, and article 19(2) lists twelve activities which make it prejudicial.

Why the right exists at all

The territorial sea is sovereign territory, as [State Territory] sets out. On land, a foreigner needs permission. At sea he does not, and the reason is that a rule requiring permission would make navigation impossible: a ship sailing from Europe to Asia would need consent from every coastal State whose belt it crossed.

So the law reached a compromise: sovereignty for the coastal State, and a right of passage for everybody else. Article 2 builds it in by making the coastal State's sovereignty over the territorial sea subject to the Convention, and the Convention then confers the right.

Passage: article 18

Article 18(1). Passage means navigation through the territorial sea for the purpose of (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters, or (b) proceeding to or from internal waters or a call at such a roadstead or port facility.

Article 18(2). Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as they are incidental to ordinary navigation or are rendered necessary by force majeure or distress, or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

So a ship that anchors to wait out a storm is still in passage; a ship that anchors to fish is not.

Innocence: article 19

Article 19(1). Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State, and shall take place in conformity with the Convention and with other rules of international law.

Article 19(2) is the crucial provision and it converts a vague standard into a list. Passage of a foreign ship is considered prejudicial if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; (f) the launching, landing or taking on board of any military device; (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; (h) any act of wilful and serious pollution contrary to the Convention; (i) any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l) any other activity not having a direct bearing on passage.