Innocent Passage, and What a Coastal State May Forbid

In one line

A foreign ship may cross another State's territorial sea without permission, and the coastal State may make pollution laws about that crossing, and articles 17 to 26 are where the two rights are reconciled.

In exam wording: articles 17 to 26 of the United Nations Convention on the Law of the Sea 1982 confer on ships of all States the right of innocent passage through the territorial sea, define passage and innocence, permit the coastal State to adopt laws and regulations relating to innocent passage in respect of specified matters including the preservation of the environment and the prevention, reduction and control of pollution, permit it to suspend passage temporarily in specified areas for security reasons, and prohibit it from hampering innocent passage or levying charges except for services rendered.

The provisions, in order

Article 17: right of innocent passage. Subject to the Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

Article 18: meaning of passage. Passage means navigation through the territorial sea for the purpose of traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters, or of proceeding to or from internal waters or such a call. Passage shall be continuous and expeditious; it includes stopping and anchoring, but only in so far as these 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.

Article 19: meaning of innocent passage. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Paragraph 2 lists twelve activities that render passage non-innocent, and two of them matter here:

• (h) any act of wilful and serious pollution contrary to this Convention; and
• (i) any fishing activities.

The others include the threat or use of force, weapons exercise, intelligence gathering, propaganda, launching or landing aircraft or military devices, loading or unloading commodities or persons contrary to customs, fiscal, immigration or sanitary laws, research or survey activities, interference with communications, and any other activity not having a direct bearing on passage.

Sub-paragraph (h) is the environmental one, and its threshold is high: wilful and serious. Ordinary operational discharge, however unlawful under MARPOL, does not make passage non-innocent.

Article 20: submarines and other underwater vehicles are required to navigate on the surface and to show their flag.

Article 21: laws and regulations of the coastal State relating to innocent passage. The coastal State may adopt laws in respect of:

• the safety of navigation and the regulation of maritime traffic;
• the protection of navigational aids and facilities and other facilities or installations;
• the protection of cables and pipelines;
• the conservation of the living resources of the sea;
• the prevention of infringement of the fisheries laws and regulations of the coastal State;
• the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
• marine scientific research and hydrographic surveys; and
• the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.