Q6. (b) What is innocent passage on the Law of the Sea? Examine the Indian position on this matter.

Innocent passage is a cornerstone principle of the Law of the Sea, granting foreign vessels the right to pass through a coastal state's territorial sea without interference, provided the passage is 'innocent'.

Innocent Passage under International Law (UNCLOS)

The right of innocent passage is enshrined in Part II, Section 1 (Articles 17-32) of UNCLOS.

• Definition: Passage means navigation through the territorial sea, including stopping and anchoring, if incidental to navigation or necessitated by force majeure or distress. It applies to both merchant ships and warships.
• Condition of Innocence: Passage is considered innocent so long as it is not prejudicial to the peace, good order, or security of the coastal State. Activities that render passage non-innocent are explicitly listed under Article 19(2) of UNCLOS.
• Rights of Coastal State: Coastal states have the right to take necessary steps in their territorial sea to prevent passage that is not innocent (Article 25(1)). They can also make laws and regulations relating to innocent passage, applicable to foreign ships, provided they don't hamper or impair innocent passage (Article 21).
• Prohibited Activities (Non-Innocent Passage): Under Article 19(2), passage is deemed prejudicial if the ship engages in any of the following activities:
  • Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations.
  • Any exercise or practice with weapons of any kind.
  • Any act of propaganda aimed at affecting the defence or security of the coastal State.
  • The launching, landing or taking on board of any aircraft.
  • The embarking or disembarking of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary regulations of the coastal State.
  • Any wilful and serious act of pollution.
  • Fishing activities.
  • The carrying out of research or survey activities.
  • Any other activity not having a direct bearing on passage.
• Distinction from Transit Passage: Innocent passage applies to territorial seas, whereas 'transit passage' (Articles 37-44) applies to international straits used for navigation between two parts of the international sea or EEZ. Transit passage is generally less restrictive, obligating states to allow unimpeded transit passage.

India's Position on Innocent Passage

India, as a party to UNCLOS since 1995, recognizes the right of innocent passage. However, its position is nuanced, particularly concerning the passage of warships and submarines, reflecting national security imperatives.

• Legal Framework: India's primary domestic legislation is The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976. This Act defines India's territorial waters as extending up to 12 nautical miles from the baseline.
• Merchant Vessels: India upholds the right of innocent passage for merchant vessels, subject to compliance with its laws and regulations concerning customs, fiscal, immigration, and sanitary matters, as permitted under UNCLOS Article 21.
• Warships and Submarines: This is where India's position diverges subtly from a purely UNCLOS interpretation, aligning with several other nations.
  • While UNCLOS Article 17 grants the right of innocent passage to warships, it does not explicitly state whether prior notification or authorization is required.
  • India generally requires foreign warships and submarines to provide prior notification before entering its territorial waters under the right of innocent passage. While not explicitly mandated by UNCLOS, India asserts this as a necessary measure to safeguard its national security.
  • The rationale is that the nature and intent of warships are different from civilian vessels, and monitoring their passage is crucial for security. This requirement aims to ensure passage remains 'innocent' in practice.
  • Submarines are expected to navigate on the surface and show their flag, as per Article 20 of UNCLOS, although India's notification policy implicitly covers their passage regardless.
• Interpretation of 'Security': India interprets 'security' broadly, encompassing maritime surveillance, territorial integrity, and preventing illicit activities within its maritime zones. Any activity perceived as potentially compromising these aspects, even if not explicitly listed under Article 19(2), could be deemed non-innocent.
• Enforcement: The Indian Navy and Coast Guard monitor maritime traffic within India's territorial waters and EEZ to ensure compliance with national laws and international norms, intervening when passage is deemed non-innocent or violates regulations.

Comparative Table: UNCLOS vs. India's Practice (Warships)

Aspect	UNCLOS Provision	Indian Position/Practice
Right of Passage	Article 17: All ships enjoy the right of innocent passage through the territorial sea. (Silent on explicit notification for warships)	Recognizes the right but requires prior notification for warships and submarines entering territorial waters.
Definition of Innocence	Article 19(2): Lists specific activities making passage non-innocent.	Adheres to UNCLOS list but maintains a broader interpretation of 'security' concerns, potentially requiring notification as a precautionary measure.
Coastal State Rights	Article 21: Right to make laws; Article 25: Right to take measures against non-innocent passage.	Exercises these rights, including requiring prior notification for warships as a measure related to security and passage management.

India's stance reflects a common practice among many states that seek to balance the UNCLOS-guaranteed right of innocent passage with the sovereign right and responsibility to protect national security interests in their maritime domain.