The rules regulating innocent passage in the territorial sea

Abstract

The actions of States are based, to a large extent, on the principle of sovereignty. When two or more sovereign subjects of international law meet, often, questions of jurisdiction arise, that is, who has the right and obligation to act. For the average person, the sea begins at the beach. However, this is not the limit of the sea; instead, an artificial line, the baseline, is drawn. Within this artificial line all water areas (known as internal waters), the mainland, and islands are not subject to international law and the State can exercise its sovereignty. Adjacent to this baseline is a belt of sea known as the territorial sea. Every State can establish a territorial sea with a maximum breadth of twelve nautical miles, measured from the baseline. Sovereignty extends over the territorial sea, including the air space over the sea as well as its bed and subsoil. The sovereignty of a coastal State in the territorial sea is limited only by the fact that this sovereignty must be exercised in accordance with customary international law and the Law of the Sea Convention (the 1958 Convention and the 1982 Law of the Sea Convention) for those States which are parties or will be parties to the Convention. The crucial question is: to what extent the sovereignty of a coastal State in its territorial sea may be restricted or set aside to permit unhindered passage of foreign vessels through this zone? In its attempt to find an acceptable solution to the conflict of interests inherent in this question, treaty law (both the 1958 Geneva Convention and the 1982 Convention) uses the concept of innocent passage. The Law of the Sea aims at protecting the international community's interests over use of the ocean space. The main pillar of the law has been freedom of navigation. Various regimes have been proposed with the purpose of protecting the rights of passage of vessels of third States in the territorial sea. Among these rights are the right of innocent passage in the territorial sea, in straits, in archipelagic waters and sometimes in internal waters; the right of transit passage in international straits; and the right of archipelagic sea lanes passage in archipelagic sea lanes. Within the territorial sea, the coastal State exercises full sovereignty subject to the right of innocent passage. The exercise of full sovereignty, on the one hand, and the exercise of the right of innocent passage on the other, brings about two competing jurisdictions - those of individual coastal States and those of the international community via the flag State. The delicate balance between the security of the coastal State, and the interest of the international community in free and unimpeded navigation in the territorial sea, is the backbone of the right of innocent passage. The right of innocent passage is deeply rooted in the practice of States and universally recognized as one of the main rules of customary international law. The codification of the right of innocent passage has been aimed at defining with greater precision that right and at delimiting the scope of coastal State sovereignty over its exercise. The following chapters, will attempt to analyse the origin, nature and scope of the right of innocent passage in the territorial sea. The intention is to analyse the general concept of innocent passage and not the particular issues of passage through international straits and archipelagic waters. Only now will reference be made to their position in international law. The right of innocent passage in the 1982 Convention, as a regime of international navigation in the territorial sea, is exercisable not only in the territorial sea, as has been the case before (in the Hague Codification Conference of 1930, in the International Law Commission Debates of 1956 and in the 1958 Convention), but also in international straits, in archipelagic waters and in certain internal waters. [...]