Innocent Passage Research Articles

Evolve, Teeter, and Reinvigorate: Analyzing The Innocent Passage Through A Comprehensive Perspective

Facing an anarchy world who tries to reach a consensus of peaceful and legalized governance, its unavoidable to discuss the actual effectiveness of international law, yet such discussion shall be continuous, taking long-term efforts in order to get closer to its goal before a cooperative world come into being. Starting from the vital case of Corfu Channel that shaped its sphere of application, this article aims to discuss the innocent passage principle in the international law system, emphasizing its characteristics, flaws and the reasons behind. The article mainly used the methods of regulatory research and case study. The analysis stressed that the flaws of innocent passage regulations was on account of its nature of being a part of soft laws, but similar principles performed well in some other areas, such as the arctic and the outer space. Eventually, the article suggested that the soft laws like the innocent passage can be commendably applied in areas that was unexploited and without obvious military threats.

What Is Innocent? Freedom of Navigation Versus Coastal States’ Rights in the Law of the Sea

Freedom of navigation and the rights of coastal states in zones extending from their shores are two of the foundational pillars of the law of the sea regime. However, these two foundational pillars are in tension when it comes to innocent passage, especially the innocent passage of warships. Traditional maritime powers such as the United States and the United Kingdom assert the right to virtually unrestricted passage by warships around the globe. Rising powers such as China and India, on the other hand, protest these activities as threatening their security and global peace and as a violation of their rights in their maritime zones. Conflict over these issues is not new, and history shows how such disagreement can lead to the brink of war. For example, the collision between Soviet and U.S. warships in the Soviet territorial sea in 1988 increased the already heightened tensions of the Cold War. This article explores the positions of Russia, China, and India regarding the passage of warships through the territorial sea. Looking at the history of these countries, we argue that the legacies of colonialism and imperialism have produced national collective senses of insecurity and trauma vis-à-vis their maritime frontiers. Thus, it should not be assumed that, like past great powers, India and China will eventually support the unrestricted innocent passage of warships.

The Right of Innocent Passage of the Warship

The root cause of the territorial water system establishment is the urgent demand of the sovereign states to prevent land-based aggression from the sea so that only harmless ships would be allowed to navigate usually. This Article is about the right of innocent passage and analyzes whether a warship shall be entitled to cross the territorial sea of another country rapidly and continuously. Based on the 1982 United Nations Convention on the Law of the Sea and the controversy of Article 17, this article illustrates the origin and essence of the innocent passage, thus arguing the problem in the jurisprudential dimension, whether warships shall enjoy this right.

Back to the USSR: The Consequences of the 1965 Soviet Decree No. 331-112 “On the Procedure for Navigation of Foreign Ships in the Straits Along the Track of the Northern Sea Route” on Today’s Navigation Through the Russian Arctic Straits

This article analyzes the consequences of the recently declassified Soviet decree No. 331-112 of 27 April 1965 that established, inter alia, the status of the Soviet Arctic straits along the Northern Sea Route with respect to warships’ right of innocent passage. This article argues that the decree, read in conjunction with Article 5.2 of the 1958 Convention on the Territorial Sea and Contiguous Zone and Article 8.2 of the United Nations Convention on the Law of the Sea, establishes a right of innocent passage through the majority of the Russian Arctic straits, which warships can enjoy. Furthermore, this article asserts that the decree calls into question the existence of a customary regime regulating navigation through the Arctic straits.

Navigational Rights in Archipelagic Waters

The United Nations Convention on the Law of the Sea of 1982, through the institutions of the right of innocent passage, the right of transit passage, and the right of archipelagic sea lanes passage, defines the rules for the navigation of foreign-flagged vessels, including warships, in territorial waters (internal waters, territorial sea, and archipelagic waters). The paper analyses the concept of archipelagic waters, the right of innocent passage within Archipelagic Waters, and the right of archipelagic sea lanes passage, respectively. How vital for the global economy and security are archipelagic waters with navigational rights and overflight on them exemplify waters of Indonesia, where nowadays shipping accounts for approximately 50% of total world trade (including Malacca and Singapore Strait, from the Indian Ocean to the Far East), and is rapidly growing.

U.S. privateering and China in the 21st century: Tied at anchor

Given calls for the United States to launch privateers against China, the article contends that such an effort would be unsuccessful for two reasons. First, the contemporary private military and security industry – the focal point of present calls – is not attuned to privateering. This is because of the following: its defensive posture; quantitative and qualitative issues related to maritime vessels; its non-U.S. ownership; concerns about innocent passage; and the nature of its expertise. Second, the article contends that despite legal uncertainty regarding privateering, the necessary international relationships for privateering to function are not in place.

The Law of the Sea and PRC Gray-Zone Operations in the South China Sea

A growing number of incidents—particularly since 2009—highlight the South China Sea (SCS) as the preeminent venue for the People's Republic of China (PRC) maritime gray zone operations. “Gray zone operations” are, in essence, operations that are designed to exploit or create legal (and other) uncertainties for a military or strategic advantage. A prominent example is the way that China has used the so-called nine(ten)-dash line without fully explaining the legal basis for it. There are other examples, as well. China has deliberately cultivated uncertainty about the sovereign status of maritime militia vessels—and thus about whether and how the conduct of these vessels might be directly attributable to the PRC. It has harassed U.S. survey vessels seventy-five nautical miles (nm) south of Hainan Island in an effort to disrupt military survey operations that it claims are impermissible and has sunk a Philippine fishing vessel at Reed Bank in an effort to enforce Chinese claims to exclusive fisheries rights in this area. It has also asserted claims and enforcement rights in zones that clearly belong to other states—including actions against Indonesian fishing vessels in seas in the vicinity of the Natuna Islands, which are part of the Indonesian Exclusive Economic Zone (EEZ) (and Continental Shelf). And it has conducted operations on the basis of inapplicable maritime zone rights, such as by asserting a territorial sea and thus the right to control innocent passage around low-tide elevations with artificial installations built upon them—such as with Mischief Reef. The list goes on.

THE CRIMINAL JURISDICTION OF A COASTAL STATE IN TERRITORIAL SEAWATERS OVER FOREIGN-FLAGGED SHIPS IN THE LIGHT OF INTERNATIONAL LAW

The coastal State does not enjoy the same level of powers over the territorial sea as it has over land territory. The extent of the coastal State’s criminal jurisdiction over ships flying a foreign flag is determined by the Right of Innocent Passage. Although such a ship cannot be considered an extension of the flag State’s land territory, in the interests of maritime trade and safe navigation, international law of the sea confers the exercise of criminal jurisdiction primarily on the flag State. However, the coastal state can exercise this jurisdiction only in strictly limited cases.

중국 해상교통안전법의 국제법적 쟁점에 관한 고찰

On April 29, 2021, People's Republic of China(hereinafter, China) had promulgated revised Maritime Traffic Safety Law(hereinafter, MTSL) and took effect on September 1. It aims to reflect recent maritime traffic conditions and strengthen China’s maritime sovereignty. MTSL and Coast Guard Law(hereinafter, CGL) serve as a dual major legal framework to protect China’s maritime jurisdiction and national interests at sea, especially in East and South China Sea. However some provisions in revised MTSL are inconsistent with international law. For examle, ambiguous jurisdictional maritime zone, obligatory reporting system hampering the right of innocent passage and improper applications to sovereign immunity vessels such as foreign warships, non-commercial government ships. If China conducts strict law enforcement in accordance with MTSL in disputed maritime zone, South China Sea, it is highly likely to occur conflicts with foreign ships and could turn into diplomatic dispute. Such provisions are in line with similar provisons in CGL, not in conformity with international law, which is raising concerns in neighboring countries and the international community. This paper examines international legal issues in China’s MTSL comparatively and draws implications after law enforcement, and then argued the necessity to prepare countermeasures for future conflict situations with China in maritime traffic section.

박통항금지해역 설정에 관한 법리적 고찰 - 유조선통항금지해역을 중심으로 -

In the past, the sea has been a space where routes are designed fornavigation like roads on land, or where freedom of navigation is guaranteed.However, as the jurisdiction of coastal states has been expanded for variousreasons such as resource development and security, there was growing concernthat the high seas, the waters where the freedom of passage of ships isguaranteed, will gradually decrease, which may limit the passage of ships. As aresult, a system such as the right of innocent passage was prepared to ensurefreedom of navigation even in the waters within the sovereignty of the coastalstate. The right of innocent passage literally means that when a vessel isharmless to the coastal state when it passes through the waters under thejurisdiction of the coastal state, it guarantees the passage of the vessel.However, the traffic-prohibited sea area for oil tankers established along thecoast of Korea prohibits passage regardless of whether or not oil tankerspassing through the sea area are harmless, which may violate the UNConvention on the Law of the Sea. Therefore, it is considered that it isnecessary to change the area to a cautionary zone for oil tankers to ensurecareful navigation of oil tankers and active management of coastal states rather than unilaterally prohibiting the passage of oil tankers. By doing so, it will bepossible to achieve the legislative purpose of the traffic-prohibited sea area foroil tankers and to solve the problem of conflicts with international law.

АМЕРИКАНО-КИТАЙСКИЕ ПРОТИВОРЕЧИЯ ВОКРУГ ТАЙВАНЬСКОГО ПРОЛИВА (Часть 2. Правовые трактовки и противоречия)

China, while insisting that the definition of "international waters" does not apply to the entire Taiwan Strait, especially emphasizes which maritime zones of sovereignty and jurisdiction predominantly comprise its water area - the territorial sea and the exclusive economic zone. The article examines in detail the restrictions that exist both at the level of national legislation of the PRC and on the part of other states concerning the exercise of the right of innocent passage of foreign warships through the territorial sea. In addition, it shows how the implementation of various types of naval activities, including reconnaissance activities, within the exclusive economic zone of a coastal state has become the stumbling block that has divided certain countries into two opposing camps. The PRC and the United States, in this case, are the main antagonists on this issue. It is concluded that the existence of these contradictions, which could not be agreed even with international mediation, significantly increases the level of conflict both in the South China Sea in general and in the waters of the Taiwan Strait in particular.

Research on the Right of Innocent Passage in the Territorial Waters

This article takes the relevant legal system of innocent passage in the territorial waters in international law as the research object, combines the knowledge of jurisprudence, comprehensively uses comparative analysis, historical analysis, and law hermeneutics. Based on an in-depth analysis of the innocent passage system, the relevant practices and positions of various countries about the innocent passage system in territorial waters are summarized, and various issues such as whether innocent passage system in territorial waters is applicable to the warships are discussed. And analyzes China’s current position and practice on innocent passage system, and then put forward suggestions for improvement.

The ‘Due Regard’ of Article 234 of UNCLOS: Lessons From Regulating Innocent Passage in the Territorial Sea

Article 234 of UNCLOS is in many ways exceptional, but it is not unique in the sense that it grants to the coastal state “complete” legislative power. Arguably, “complete” coastal state jurisdiction exists in the territorial sea for the purposes enumerated in Article 21(1), allowing coastal states to adopt ship reporting systems, pilotage, and other routing measures unilaterally. The analysis of state practice reveals that states often decide to engage the International Maritime Organization (IMO) in different ways, even when such a course of action is not mandatory. This article advocates for meaningful deliberation as both a suitable method of meeting Article 234’s due regard standard, and a practice that can be expected from a steward.

The Award Concerning Jurisdiction in the Coastal State Rights Dispute Between Ukraine and Russia: What Has Been Decided and What to Expect Next

On 21 February 2020, the Annex VII Tribunal rendered its Award concerning the jurisdiction in the Dispute Concerning Coastal State Rights in the Black Sea, the Sea of Azov, and Kerch Strait (Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), PCA Case No. 2017-06, Award Concerning the Preliminary Objections of the Russian Federation [Award], 2020). The Award opened a new chapter in the high-stakes legal battle between Ukraine and the Russia Federation over the alleged seizure and exploitation of oil fields on Ukraine’s continental shelf, fisheries near the coast of Crimea, navigation through Kerch Strait, the construction of Kerch Bridge, and the conduct of studies of underwater archeological and historical sites in the Black Sea. The Award reflected on six objections raised by Russia. Thus, the Tribunal backed Russia’s arguments that ruling on most Ukrainian claims concerning the rights in the Black Sea will inevitably require the Tribunal to first decide on the issue of sovereignty over Crimea. Therefore, it won’t have jurisdiction over those claims. Addressing the objection concerning the status of Kerch Strait and the Sea of Azov, the Tribunal stressed that the issue does not possess an exclusively preliminary character and cannot be resolved without judging on the merits. It also disagreed with the Russian objection that UNCLOS does not at all regulate a regime of internal waters. The Tribunal listed three examples of provisions of UNCLOS that are applicable to internal waters. They regulate 1) the boundaries of the internal waters areas; 2) execution of the right of innocent passage in internal waters areas which had not previously been considered as such, and 3) protection and preservation of the marine environment. The Tribunal declined further objections of the Russian Federation and set 20 August 2021 as a deadline for the submission of memoranda by the parties.

The (In)applicability of the Right of Innocent Passage in the Gulf of Finland – Russia’s Return to a Mare Clausum?

Abstract The Gulf of Finland has one of the busiest shipping routes globally and is the main export channel for Russian oil and gas. The Russian Federation has not closed its territorial sea for the east-west passage of ships to and from its ports. However, it has blocked over the past dozen years the north-south passage of an Estonian-Finnish commercial ferry line that has not received the Russian Federation’s permission for crossing its territorial sea. The Russian Federation’s permit-based passage regime caused the closure of that ferry line in 2007 and reportedly still hinders its re-establishment. In this context, the Russian Federation’s practice on the right of innocent passage through its territorial sea in the Gulf of Finland resembles the Soviet Union’s practice prior to the 1989 Jackson Hole statement.

Эгейское море противоречий (Часть II)

The Aegean Sea as a common sea region for Greece and Turkey is not only an important source of aquatic biological and energy resources, but also a water area where both countries have their own interests in its economic development and use. Traditionally, this sea area, most of which is a high sea in terms of rules and provisions of the modern international maritime law, has been used by both states on a parity basis, and other extra-regional countries have had equal rights with them here. However, the desire of Greece and Turkey to extend their zones of sovereignty, sovereign rights and jurisdiction over maritime zones, seabed and subsoil has given rise to new maritime disputes. It is no coincidence that the problem of delimiting the continental shelf, i. e. the underwater margin of the continent where coastal countries are vested with rights to explore and exploit its resources, has accompanied the Turkish-Greek negotiations for decades. Greece has even initiated legal proceedings before the International Court of Justice on the issue, but for various reasons the Court found that it had no jurisdiction to hear the case. To date, the positions of the parties on this issue have not changed; they are directly opposite and mutually exclusive. This and other circumstances, as well as the fact that Turkey is not a party to either the 1958 Geneva Conventions or the 1982 UN Convention on the Law of the Sea, severely limits the possibility of a new trial. Moreover, the legal positivism of the Greek position on the entire spectrum of Aegean Sea problems, i. e. an appeal solely to the applicable rules and provisions of international law of the sea, not only fails to satisfy Turkey but also has negative consequences for other countries. First of all, this concerns issues related to the freedom of navigation. Greece’s claim to extend the outer limits of its territorial sea from 6 to 12 nautical miles around the huge number of Greek islands in the Aegean Sea would inevitably lead to a significant reduction of the high sea. Although at a minimum the right of innocent passage and at a maximum the more liberal rule of the law of the sea – the right of transit passage – will apply, the legal regime for these maritime areas will be fundamentally different and more heavily regulated. The passage of merchant ships and warships, as well as the overflight of military aircraft, including those of any foreign country, also of the U.S. and Russian Federation, will not be as free as on the high seas. All of these issues are dealt with in this (second) part of the paper. Acknowledgements. The article was prepared within the project “Post-Crisis World Order: Challenges and Technologies, Competition and Cooperation” supported by the grant from Ministry of Science and Higher Education of the Russian Federation program for research projects in priority areas of scientific and technological development (Agreement № 075-15-2020-783).

New Russian Legislative Approaches and Navigational Rights within the Northern Sea Route

The regulation of foreign navigation in the Northern Sea Route (NSR) has been dominated by the rules of international law applicable to merchant ships only. Neither the domestic set of rules of navigation on the NSR, based on Article 234 of UNCLOS nor the Polar Code applies to State-owned vessels. While the application of Article 234 has so far let Russia evade discussion on the navigational rights, one can expect an increasing spotlight on this issue. In response to the recent crossing of the NSR by a French warship, as well as the voices from the United States indicating similar plans, Russia has signalled the intention to adopt more stringent rules for passage of warships, potentially including the requirement of prior notification and pilotage. The aim of the paper is twofold. First, examine the navigational rights as applicable in the NSR. As such, the paper will discuss historical State practice and relevant international law to demonstrate, among other things, that the enclosure with straight baselines preserved innocent passage in all Russian Arctic straits. Second, examine the international legality of prior notification and pilotage in the context of the applicable navigational rights on the NSR.

Post-rescue Innocent Passage by Non-governmental Search and Rescue Vessels in the Mediterranean

Abstract This article analyses the conformity of Italian legislation adopted in 2019 – and its implementation – with the regime of innocent passage in the territorial sea under Part II of the 1982 United Nations Convention on the Law of the Sea with respect to civil rescue vessels returning from rescue operations with rescued persons on board. It first gives a brief overview over the international legal regime applicable to search and rescue (SAR) operations. Next, the article introduces Italian legislation adopted in 2019, which establishes a legal basis for administrative orders prohibiting ships the entry into, transit through, and stopping in Italy’s territorial sea. In a third step, the article shows how the new Italian legislation has so far been implemented vis-à-vis SAR vessels of non-governmental organizations in post-rescue situations. This is followed by an analysis of the conformity of the Italian legislation and its implementation with the regime of innocent passage.

Port states, coastal states and national security: A law of the sea perspective on the 2017 Qatar-Gulf crisis

In June 2017 a wide-ranging and protracted dispute between several members of the Gulf Cooperation Council (GCC) simmered over into the public sphere with the United Arab Emirates (UAE), Bahrain and Saudi Arabia all severing diplomatic ties with Qatar. This diplomatic dispute is accompanied by a number of port state and coastal state measures which includes the denial of the use of ports and the denial of innocent passage to vessels either linked to Qatar or carrying cargo linked to Qatar. This paper will use the current law of the sea framework to analyse the legality of the UAE's, Bahrain's and Saudi Arabia's Qatar-related restrictions upon international shipping. This paper concludes that in both cases the three GCC states have a valid jurisdictional basis to adopt such measures, but the limitations of customary international law and the United Nations Convention on the Law of the Sea (UNCLOS) are arguably not being followed. The conclusion also touches upon whether the compulsory dispute settlement procedure found in Part XV of UNCLOS presents another avenue for flag states to challenge the restrictions on innocent passage imposed by Saudi Arabia and Bahrain as parties to UNCLOS.

The Right of Innocent Passage of Warships Through Territorial Seas in the Light of the Kerch Strait Incident

Le présent article considère le passage inoffensif de navires de guerre dans la mer territoriale d’un État côtier. Le problème a été clairement énoncé dans les événements survenus à la fin de 2018 lorsque la marine russe a tiré sur trois navires de guerre ukrainiens et capturé leurs membres d’équipage au cours de leur passage de la mer Noire à la mer d’Azov par le détroit de Kertch. L’auteur présente une appréciation juridique du pilonnage et de la saisie de navires de guerre étrangers par la marine russe. Il explique également le statut juridique des navires de guerre et de leurs membres d’équipage en temps de paix et pendant les conflits armés internationaux.