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Fri. November 16, 2018
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Tribulation of the Right to Free Passage: Strolling in your neighbor’s front yard with a hand gun?
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By Amit R. Saksena.

Times would have definitely been better when the three nautical mile rule (attack range of a medium canon), was used to determine the jurisdiction of a nation state’s sovereign extent over a water body. Over the years, as technological advancements and the advent of human civilization pushed the exclusive territorial limit to twelve nautical miles, they failed to take into consideration the political polarity of the recently formed and weakly constructed governance structures in place which now held a very powerful mechanism in their hands; inherent control of access to major water travel routes.

The ‘right of innocent passage’ is the right of any nation's ships to traverse continuously and expeditiously through the territorial waters of a coastal nation, subject to certain conditions. Under the Law of the Sea Treaty, such passage is conditioned on passing in a manner that isn't threatening to ‘sovereignty, territorial integrity or political independence’ or the ‘good order and security’, of that nation. The devil, as they say, is in the details.  So while conforming to the broad concept of innocent passage, signatories to the UN Convention tend to interpret its relevant provisions in a way best suited to their interests, while the non-signatories insist on following the provisions that they like, under the label of customary law.  Some countries are simply disinterested in all the on - goings around them till it hits them in the face.

Allowing trade and merchant vessels to pass through might still be acceptable. But what about warships? No nation state would accept warships of other countries to plod along a few miles of their coast, on the pretext of an alleged emergency, all under the cover of ‘innocent passage’.  Regardless, the foremost question that arises is whether it’s legally permissible or not.                                                         

As per UNCLOS’ 82, ‘ships of all states enjoy the right of innocent passage through the territorial sea’.  Whether warships are included or not in this clause is arguable on the basis of customary law; the fact still remains that some of the prohibitions placed on innocent passage with reference to weapon exercises, on board aircraft operations, operation of military devices, communication interference etc. are more closely linked with warships.  The ICJ’s historic judgment of 1946 on the Corfu channel case, established a vital peacetime principle of the right of warships to pass through straits used for international navigation.  There can again be a counterargument, howsoever weak, to the effect that the judgment only refers to international straits and not to territorial waters.

 Irrespectively, all warships are bound in any case (under a separate Article of UNCLOS’ 82) to comply with the laws and regulations of the coastal state concerning passage through the territorial sea.  Such enabling legislation is thus vital for all states interested in safeguarding their maritime interests.

The other UNCLOS’ 82 clause pertaining to warships is the requirement for all submarines, while in the territorial sea of another state, to navigate on the surface and to show their flag.  Many maritime nations possessing submarines, and seized with the need and wherewithal, do tend to indulge in surreptitious intelligence gathering.  Both American and Russian submarines are known to have routinely operated off each other’s coasts since the early days of the cold war.  The maxim employed was “keep doing it and try not to get caught”.

An interesting and perhaps deliberate omission of a particularly dangerous category of vessels, namely those carrying ultra hazardous substances, from the UNCLOS prohibition list constituting non-innocent passage, has given rise to needless showdowns.  ‘Nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances’ are however required to ‘carry documents and observe special precautionary measures established for such ships by international agreements’.  The 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal requires environmental assessments, prior notifications and consultation.  Another justification for imposing control on such transboundary movements through a state’s territorial sea or even its EEZ is because such a passage does not fulfill the primary condition of being innocent, in that it is prejudicial to the security of the coastal state and thus subject to its prior consent.  The precautionary principle mentioned in the UNCLOS section pertaining to preservation of the marine environment and subsequently enshrined in the Rio Declaration of 1992 is now being effectively applied.

The UN Convention on Law of the Sea is a skillfully balanced, well-deliberated and carefully drafted document. It has, as an unfortunate consequence, given rise to legal disputes generated by the clashing self-interest of competing states. Given the necessary political will, these issues can easily be resolved in the context of the principles and arbitration mechanisms enshrined in the document. If nations commit themselves to observing and treating the passage of ships at sea as what it is meant to be, innocent passage, the oceans of the world will become a much more tranquil place to sail in.

Amit R. Saksena is an independent researcher and member of the Wikistrat analytic community from New Delhi. He tweets @arsaksena.

 

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