Innocent, non-innocent and not-so-innocent passage

The right of innocent passage being enjoyed by ships at sea is a subject, which, though lying at the periphery of the maritime security paradigm, keeps nibbling its way to the core. The intricacies of the maritime domain are best symbolised by the very concept of innocent passage as it mingles rather effortlessly with the realm of non-innocent and not-so-innocent passage.
Most people in Pakistan understand the concept of land borders, though they tend to disregard it at times to their peril. On crossing over through Wagah, Chaman or Torkham for instance, there is an instinctive realisation of leaving our territory behind and entering the territory of another state. This side is ours, that side is someone else’s. It’s as simple as that!
It should be apparent even to those whose interests do not extend to things maritime, that such an overtly simple concept of demarcation can hardly find a place at sea. The maritime domain, termed euphemistically as the sea frontier, is certainly huge and complex – constituting inland waters, gulfs, straits, bays, territorial waters, contiguous zones, exclusive economic zones, continental shelves and the so-called open sea. It is indeed so vast that an eminent visionary and sci-fi writer Arthur C. Clarke is reported to have found the calling of this planet as Earth “inappropriate….. when it is quite clearly Ocean”.
This article, however, exclusively deals with the right of coastal states over what they consider to be their very own watery backyard vis-à-vis the freedom of the sea guaranteed to all states. A basic question goes abegging here: Can a ship from one state traverse the territorial waters of another state, waters that are treated as a virtual extension of its land territory. Or differently put and designed to shock, can an Indian warship pass within visual distance of the newly-developed Gwadar port? A ‘yes’ answer would send most of my countrymen into paroxysms of disbelief. Strange are the ways of men and of the seas!
Permit me to elaborate, by taking the reader back in time to a period spanning over four centuries, when the world’s major navies roamed the seas at will, in search of trade, colonization and exploitation, though not necessarily in that order. Freedom of navigation on the sea thus became enshrined as a principle of customary international law towards the early part of the nineteenth century. As many formerly open territorial seas, international straits and archipelagic waters came under national jurisdiction on the adoption of the 1982 UN Convention on Law of the Sea (UNCLOS’82), the right of innocent passage gained prominence, according to which no state could prohibit the passage of ships of other nations through its territorial waters if the passage was innocent. This “if” is a relatively small one in the case of transit passage (through international straits) and archipelagic sea lanes passage (through archipelagic waters) but a much bigger, though still easily surmountable, one, when the said vessels are traversing though another state’s territorial waters.
In order to qualify for ‘innocent passage’, a vessel should not only traverse the territorial sea in a ‘continuous and expeditious’ manner but should also desist from activities ‘considered to be prejudicial, to the peace, good order or security of the coastal state’. The prohibited list of activities range from security (use of force, weapons practice, data gathering, aircraft operation, propaganda, communication interference etc) to fishing and pollution.
The devil, as they say, is in the details. So while conforming to the broad concept of innocent passage, signatories to the UN Convention (UNCLOS’82) 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 brouhaha going on around them till it hits them in the face.
During the course of this article, I shall try to cover some of the hotly disputed areas and illustrate by way of some selected case studies the nature of such disputes.
One touchy area is that of warships. No country likes warships of another country, particularly one that it is not on good terms with, plodding along within a few miles of their coast, and even anchoring still closer, on the pretext of an alleged emergency, all under the cover of ‘innocent passage’. Regardless of any likes or dislikes, 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 ICJs historic judgment of 1946 on the Corfu channel case, of which more anon, 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 judgement only refers to international straits and not to territorial waters.
Leaving this controversy aside for the moment, 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”. The Swedish coast was another favourite haunt of the Soviet submarines. The captain of the Russian Whiskey-class submarine that had accidentally got grounded in October 1981 on an underwater rock barely 2 Km from the Swedish main naval base at Karlskrona (and remained so for the next 10 days) brazenly claimed that he thought he was operating off the Polish coast. Just goes to show that if one is strong and powerful, one can get away with blue murder. As an aside, the US was not so lucky when its intelligence gathering surface vessels, the USS Liberty and USS Pueblo, came under deliberate attack in 1967/68 from Israel and North Korea respectively, while in international waters.
The US and Britain have both been in the forefront as far as championing the cause of freedom of the seas and rights of navigation through international straits and territorial waters is concerned. Britain certainly had a point to prove when in 1946, it despatched four warships to traverse the Corfu channel situated between the Albanian mainland and the island of Corfu. Under dispute was the Albanian government’s contention that such passages required it’s permission in advance. The mission however went awry as two of the RN destroyers struck mines and the case subsequently ended up creating history as the first ever decided upon by the International Court of Justice. The Court upheld the rights of states in peacetime to send their warships through international straits in accordance with international custom, provided the passage was innocent, without fear of being prohibited by the coastal state.
In 1973, Libya needlessly provoked the United States by declaring the Gulf of Sidra to be a closed bay and part of its territorial waters, despite the required conditions not being met. With the US reaffirming its right to conduct naval operations in what it termed “international waters”, a confrontation was inevitable. Matters came to a head in December 1979, after a Libyan mob stormed and burned down the US Embassy. US presence in the Gulf of Sidra started increasing and aerial battles, resulting in Libyan losses, more common. Libya tried to get even through terrorist attacks on US citizens in Europe, with the one on a Berlin nightclub in April 1986 triggering a massive US aerial assault supposedly on military complexes, air bases, ports and the tent of the Libyan leader, causing a lot of collateral damage. Things started cooling down as the Republican star in the US waned and the Libyans revolutionary fervour receded somewhat.
The incidents in the Black Sea involving the US and the USSR were stranger still, though much less eventful. The US had the upper hand, mainly because the vulnerability of the Soviet Union had been hopelessly exposed in Afghanistan, from where it was looking for an honourable way out. After the adoption of UNCLOS III in 1982, the Soviet Union established authorized coastal areas by taking Art 22 out of context (ignoring its stress on safety of navigation) and prohibited all passages, howsoever innocent, in the Black Sea off the Soviet coast by not designating such areas there. US warships entered Soviet territorial waters on a number of occasions thereafter to assert the right of peaceful passage. Soviet warships tried to thwart one such foray on 13 Feb 1988 by scraping the side of its US counterpart, though the effort wasn’t much successful in preventing the US vessels from continuing with their routine operations.
It appears perplexing at first sight as to why the Soviets did not rely on the rationale furnished by Art 19(2) (c) of UNCLOS’82 which includes “any act aimed at collecting information to the prejudice of the defence or security of the coastal state” amongst the prohibitions that renders a passage “non-innocent”. This would have been more plausible than the illogical stand that they took regarding ‘designated coastal areas’, considering that the US warships were fitted with a wide array of listening devices. Two reasons come to mind: first, that the US was not a signatory of UNCLOS 82 and therefore not bound by it’s provisions and secondly, this would have brought the spotlight on the Soviet’s own shady activities off others’ coasts. A joint US-USSR statement issued in the aftermath of the scraping incident reaffirmed the right of warships to innocent passage without any prior requirements.
A close quarter incident in the Strait of Hormuz in January 2008, involving three US warships and five Iranian Revolutionary Guard speedboats, generated headlines around the world. Though blamed on the palpable level of hostility between the two countries, the incident was a reflection of opposing viewpoints over the applicability of the law of the sea. The US stance regarding the freedom of its warships to go wherever they want to in the Persian Gulf or in the Strait of Hormuz does not sit well with Iran, which has passed its own local marine legislation requiring all warships passing through Iran’s territorial waters or its part of the International Strait of Hormuz to obtain prior authorization. Iran also feels that countries like the US which haven’t even signed the 1982 UN Convention don’t have the right to claim any benefit from the ‘innocent passage’ or ‘innocent transit’ regime. In this case too, the (militarily) mightier view prevails.
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 fulfil 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. As a case in point, Chilean Naval vessels forced the Pacific Pintail, carrying hazardous nuclear waste from Europe to Japan, to move away from its EEZ before setting sail due west. Portuguese naval vessels likewise, expelled several radioactively contaminated decommissioned vessels proceeding from the USA to Europe, away from the territorial sea around the Azores. While Spain had legislated as far back as 1964 to treat the passage of nuclear-powered ships as non-innocent, a Mediterranean Sea Protocol also insists on the process of prior notification and consultation whenever hazardous materials are being shipped through the territorial seas of Mediterranean nations. While the nuclear powers still stick to their stand regarding the freedom of movement of nuclear-powered and hazardous material carrying ships, they have wisely chosen not to strongly confront determined countries like Chile. Round One to the smaller, though resolute, powers.
It’s nice to see Pakistan finally promulgate the Pakistan Merchant Shipping (Carriage of Hazardous and Dangerous Substances by Ships) Rules 2009 on 30 July that year. The question of nuclear-powered ships passing through our territorial waters had been partially addressed in the Territorial Waters and Maritime Zones Act 1976 by imposing the condition of “giving prior notice”. Rules for carrying out the purposes of the above Act are however supposed to be enacted as per Art 14 (1). Enabling legislation is definitely needed in order to manage and regulate various activities in our maritime zones. The precautionary, preventive and consultative principles can also be inserted in this legislation to make it more wholesome and to better safeguard our maritime interests by creating a less confrontational and more multilateral environment.
The writer is a retired Rear Admiral of the Pakistan Navy, who is currently serving as the Director General, National Centre for Maritime Policy Research at Bahria University Karachi Campus. He can be reached at [email protected]