Doctrine of Innocent Passage

Defining the Doctrine of Innocent Passage

The doctrine of innocent passage is enshrined in UNCLOS, specifically Articles 17-24. It grants foreign vessels the right to pass through the territorial sea of a coastal state, provided their passage is ‘innocent.’ This means the transit must not be prejudicial to the peace, order, or marine environment of the coastal state. The term “territorial sea” extends up to 12 nautical miles from the baseline of a state.

Rights and Obligations of Coastal States

Coastal states possess certain rights and obligations regarding innocent passage:

• Right to regulate: Coastal states can regulate the passage of foreign vessels to prevent innocent passage from being impaired. This includes designating sea lanes and traffic separation schemes.
• Right to suspend: A coastal state can temporarily suspend the right of innocent passage in specified areas of its territorial sea if necessary for its security.
• Obligation to facilitate: The coastal state has an obligation to facilitate innocent passage, ensuring vessels are not unduly delayed or hampered.

Rights and Obligations of Warships

While the doctrine applies to all vessels, warships are subject to specific rules:

• Forced deviation: A coastal state cannot force a warship to deviate from its route unless it is necessary to prevent innocent passage from being impaired.
• Signals: Warships are generally required to display their identification signals when passing through the territorial sea.
• Immunity: Warships enjoy sovereign immunity, meaning they are generally immune from the jurisdiction of the coastal state's courts.

Limitations and Controversies

The interpretation of "innocent" is a constant source of contention. What one state considers innocent, another might view as prejudicial.

• Submarine Cables: The laying and maintenance of submarine cables are often viewed differently by coastal states. Some consider them essential for international communication, while others see them as a potential security risk.
• Surveillance Activities: Activities like oceanographic research and data collection can be perceived as surveillance, leading to disputes.
• Military Exercises: Naval exercises within the territorial sea can be a source of tension, especially if they involve simulated attacks.

Case Studies and Relevant Judgments

Several cases have shaped the understanding of the doctrine:

Case Name	Year	Key Issue	Outcome
United States v. Alabama	1926	The right of a foreign warship to pass through the territorial sea	The Permanent Court of International Justice (PCIJ) held that the US warship was entitled to innocent passage.
Hansen Flounder II	1986	Whether a fishing vessel’s activities constituted innocent passage	The International Tribunal for the Law of the Sea (ITLOS) ruled that the fishing activities were not innocent.

Evolving Challenges and Future Considerations

The doctrine faces new challenges in the 21st century:

• Increased Naval Activity: Rising geopolitical tensions have led to increased naval presence in strategic waterways, increasing the potential for incidents.
• Cyber Warfare: The vulnerability of submarine cables to cyberattacks poses a new threat, potentially impacting innocent passage.
• Autonomous Vessels: The emergence of autonomous vessels raises questions about responsibility and compliance with the doctrine.

The Role of UNCLOS and ITLOS

UNCLOS provides the legal framework for the doctrine, while ITLOS plays a crucial role in resolving disputes arising from its interpretation and application. The decisions of ITLOS contribute to the progressive development of international law.