The question of innocent passage of warships

The question of innocent passage of warships After UNCLOS Ill

Shao Jin

This article looks at the international law concerning the innocent passage of warships through territorial seas after UNCLOS Ill. At UNCLOS I no agreement was reached as to whether foreign warships in peacetime enjoy the same right of innocent passage through the territorial sea as merchant ships or whether the coastal state may grant the passage subject to prior notification or authorization. Consequently, the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone is characterized by the absence of a special provision on this matter. This leads to a wealth of interpretations and a great deal of ambiguity. Shao Jin is Professor of International law, Faculty of Law, Peking University, Beijing, China.

‘AICONF 62/C 2/L 16, Official Records of UNCLOS III (referred to as Official Records in future references), Vol 111,p 194. See also ‘China: working paper concerning maritime zones within the limit of state jurisdiction’, A/AC 13WSC II/L 34, Oda, The International Law of Ocean Development, Vol 2; Cyprus, Greece, Indonesia, Mafavsia. Morocco, Philippines, Soain and Yemen: draft articles’ ’ on .N~vjgation through the Territorial Sea including Straits Used for International Navigation, AJAC 138ISC II/L 18, ibid p 306.

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The type of conflict at UNCLOS III was essentially the same as that at UNCLOS I. The major naval powers strive for global naval mobility in order to secure their strategic and naval-diplomatic interests, while a large number of coastal states seek to control the access of foreign warships to the territorial sea out of national security considerations. The alignment, however, has somewhat changed. While the number of states supporting the coastal state’s right to require previous notification or authorization of passage has been growing with the emergence of more than 60 newly independent nations since 1958, the Soviet Union, an enthusiastic champion for the right of the coastal state to require prior authorization at UNCLOS I, has become an ardent claimant to the right of innocent passage for warships. It turned out after UNCLOS III, however, that the Soviet concept of the right of innocent passage of warships is not the same as that of the Western powers.

Two trends Many developing coastal states have sought to include an express provision in the new LOS Convention to make it specific that the coastal state may require prior notification or authorization for the passage of foreign warships. Article 15 of the draft articles on navigation through the territorial sea submitted by Malaysia, Morocco, Oman and Yemen, for example, says: ‘The coastal State may require prior notification to or authorization by its competent authorities for the passage of foreign warships through the territorial sea, in conformity with the regulations in force in such a State.” On the other hand, the two superpowers and their allies attempted to establish warships’ right to innocent passage. The draft articles on the territorial sea and straits submitted by the UK contain a provision stipulating: ‘The rules contained in section I (i.e., rules under the rubric “Rules Applicable to All Ships”, including the rule that ships of all

0308-597X/89/01

0056-l 2$03.00 @ 1989 Bu~e~o~h

& Co {publishers)

Ltd

The question of innocent passage of warships

States shall enjoy the right of innocent passage through the territorial sea) shall apply to warships.‘2 The draft articles cosponsored by the Soviet Union. Bulgaria, German Democratic Republic and Poland contain a similar provision.”

From main trends to the UN Convention

‘Article 26 l/A/CONF 62/C 2/L 3, Official Records, Vol Ill, United Nations, NY, USA, p 185. ‘Article 26, A/CONF 62/C 2/L 26, Official Records, Vol III, p 205. 4Provision 43, paragraph 2 and Provision 44. Formula C, Official Records, Vol Ill, p114. 5Article 9.2, A/CONF 62/WP G/Pat-l II, Official Records, Vol IV. ‘A/CONF 62/WP 8/REV l/Part II, Official Records, Vol V. 7C 2/informal Meetings/%/Rev I, 12 March 1982. ‘See Shen Weiliang and Xu Guangjian, ‘UNCLOS III and the Convention on the Law of the Sea’, Chinese Yearbook of lrtternational Law, 7983 (in Chinese), p411. ‘A/CONF 62/L 117, Official Records, Vol XVI, p 225. At the same time Gabon tabled an amendment proposing to insert in Article 21, paragraph 1 a new subparagraph to read: ‘navigation of warships including the right to require prior authorization and notification for passage through the territorial sea’, Official Records, Vol XVI, UN, NY, USA, p 217. :“$dc$ Ref 8, p 411. “Official p 132.

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Both the trends were reflected in ‘Main Trends’, a working paper compiled by the Second Committee during the 1974 Caracas Session.4 In the 1975 Informal Single Negotiating Text, Part II, however, the formula giving expression to the view of the major naval powers was incorporated, while the formula proposed by Asian and African nations was ignored.’ As is well known, the ISNT, Part II, was prepared by the Chairman of the Second Committee and was not the result achieved by consensus. During the Fourth Session over 30 developing coastal states expressed dissatisfaction with the said provision of the ISNT and maintained that the coastal state may make the passage of foreign warships subject to prior authorization or notification. As a result the reference to the right of warships was deleted in the 1977 Informal Negotiating Text.6 This zero formula was kept intact in the 1977 Informal Composite Negotiating Text, and indeed in all the following Negotiating Texts and the draft convention. Thus, a return to the 1958 Geneva Convention was ensuing. In order to have a clear-cut provision on the question of the passage of warships and avoid possible disputes in the future, a large number of developing coastal states made persistent efforts to improve the text. Several amendments were proposed. The last-minute effort was made at the Eleventh Session. At the plenary meetings the proposal tabled by 27 nations7 including China was expressly supported by over 30 states and opposed by about 20. 8 To another amendment cosponsored by 28 nations,” also including China, 46 states voiced their support, 30 0bjected.l” In an effort to break through the impasse, the president personally convened the delegates of states representing the sponsors of the 2%nation amendment (China, Romania, Morocco, Sierra Leone and Uruguay) and the delegates of the Soviet Union and the USA for a consultation. No compromise proved to be possible. An understanding reached was that the sponsors would not press the amendment to a vote and the president would make this statement:” Although the sponsors of the amendment in document A/CONF/62/L.117 had proposed the amendment with a view to clarifying the text of the convention, in response to the President’s appeal they have agreed not to press it to a vote. They would, however, like to reaffirm that their decision is without prejudice to the rights of the coastal State to safeguard their security interests, in accordance

with article 19 and 25 of the draft convention.‘2 The President read out the statement at the 176th plenary meeting. Thus the text of the relevant articles of the draft convention remained unchanged. The 1982 UN Convention on the Law of the Sea and the 1958 Geneva Convention, in the sections on the innocent passage in the territorial sea, not only contain virtually identical provisions under exactly the same subsection title (TSC Articles 14.1, 14.6 and 23: LOSC Articles 17, 20 and 30) but also have a similar background of failure to include a compromise formula. Both Conventions do not contain a special provision on the question at issue.

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The question of innocent passage of warships

Three interpretations Warship’s

right of innocent passage

established

One interpretation is that the two Conventions have established the right of innocent passage of warships and that the coastal state cannot require prior notification or authorization. Three basic arguments have been put forward for this interpretation. (1) Since the title of Subsection A, of the section on innocent passage in the territorial sea, is ‘Rules Applicable to All Ships’, the provisions under that title, including the provision according to which ships of all states enjoy the right of innocent passage through the territorial sea (TSC Article 14.1; LOSC Article 17), apply indifferently to warships as well as other types of vessels.‘” (2) The failure of Article 24 of the ILC draft specially applicable to the passage of warships to figure in the Convention on the Territorial Sea and Contiguous Zone has the effect that no special legal regime for the passage of warships is created and consequently they are given exactly the same rights as merchant ships.14 (3) Provisions concerning submarines (TSC, Article Article 20) and the non-compliance of warships with regulations of the coastal state (TSC Article 23; LOSC implication comprise warships in the expression ‘ships’ right of innocent passage.” Coastal state’s right to make requirements

The arguments include: ‘%ee Fitzmaurice, ‘Some results of the Geneva Conference on the Law of the Sea’, International and Comparative Law Quarter/y, Vol 6, January 1959, p 90; Molozov, The Legal Regime of Maritime Zones (in Russian), 1982, p 56; Treves, ‘Navigation’, in Dupuy and Vignes (eds), Traite du Nouveau Droit de la Mer, 1985, pp 774-775. ‘%ee Fitzmaurice, ibid, pp 102-l 03; O’Connell, international Law, Vol 2, (second edition), 1970, p 638; and Ferron, Le Droit International de /a Mer, 1958, pp 61-62. 15Fitzmaurice, ibid, p 98. J.N. Moore cited the provision concerning submarines to support the interpretation in his talk on questions in the law of the sea given at the Chinese Society of International Law, Beijing, 16 June 1986. ‘%ee, for example, statements of Cape Verde, Iran, Oman, Romania and Sudan, Bulletin of the Law of the Sea, No 1, September 1983. ‘%ee the remarks bv the representative of the Philippines, Official Redords, Vol XVI, D 51. See also Tunkin, ‘The Geneva Conierence on the Law if the Sea’, International Affairs, No 7, 1985, p 49. “See, for example, remarks by the representative of United Arab Emirates, ibid, p 28; remarks by the representative of Romania, ibid, pp 20, 97; and remarks by the representative of Iran, ibid, p 117.

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on which

14.6; LOSC, the laws and Article 30) by enjoying the

established

this interpretation

has relied

or may

rely

(2) In the light of provisions on the meaning of innocent passage and on the rights of protection of the coastal state (TSC Articles 14.4, and 16; LOSC Articles 19 and 25) the coastal state has the right of taking all necessary measures to protect its security interests, including requirement of prior notification or authorization for the passage of foreign warships. lh (2) The provision on the right of the coastal state in case of non-compliance by warships of its laws and regulations concerning passage through the territorial sea (TSC Articles 23; LOSC Article 30) empowers the coastal state to require prior notification or authorization.17 integrety and security (3) The principles of sovereignty, territorial state to make such provide basis for the right of the coastal requirements, the territorial sea being a part of the territory and under the sovereignty of that state.‘s (4) In the UN Convention the term used in articles on the right of transit passage through straits used for international navigation and on the right of archipelagic sea lanes passage (Articles 38.1, 53.2) is ‘all ships’, while the term used in articles on the right of innocent passage is ‘ships’ (Articles 17, 52). If the former term is intended to cover ships of all types, the latter can only mean vessels other than warships. No agreement

and not regulated

A third view maintains

by conventional

that since there

law

are no provisions

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in the two Conventions” and the t~ava~x pr+xzrutoires of both point to the failure to reach a compromise, the question is not regulated by conventional law and is thus governed by customary law.20 The Chinese doctrine The People’s Republic of but in its Declaration on provision is made that territorial sea without the Fu Chu, an internatioanl to the territorial sea of well grounded both in writes:

China is not a party to the 1958 Convention, the Territorial Sea of September 4, 1958, a foreign military vessels may not enter its authorization of the Chinese Government.2’ law writer, in his article ‘Questions relating out that ‘this provision is China’, pointed international law and State practice’. He

First, since international

law recognizes that the sovereinty of a State extends to its territorial sea and the air space over the territorial sea the coastal State, for purposes of its security, naturally has the indisputable right to prescribe that all foreign aircrafts and military vessels cannot enter its territorial sea without prior authorization . . . . Second, in State practice quite a few States have provisions in their national laws similar to that included in China’s Declaration on the Territorial Sea.”

‘%ee, for example, Liu Zheyung, An introduction to the Law of the Territorial Sea (in Chinese), 1965, p 89; Smith, The Law and Custom of the Sea, 1959, p 49; Telazawa Kazu and Yamamoto Souji, The Foundations of fntemationaf Law, 1979 (in Japanese), Chinese translation, p 276. 2CO’Connell, The fntemstiona/ Law of the Sea, Vol 1, pp 295291. 2’Documents Relating to Foreign Relations of People’s Republic of China (in Chinese), Vol 5, p 163. ‘*Fu Chu, Questions Relating to the Territorial Sea of China (in Chinese), Beijing, China, 1959, p 23. %M, p 24. ‘%!hou Genshen, international Law (in Chinese), Vol 1, The Commercial Press, Beijing, China, 1976, p 370. 25Op tit, Ref 19, pp 84, 89, 90.

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Fu cites Article 24 of the 1956 ILC draft articles on the territorial sea as well as Hall and Oppenheim in support of the proposition that ‘the so-called warships’ right of innocent passage has never been a recognized principle of international law’.23 The 1958 Geneva Convention was not mentioned. Zhou Genshen, a leading publicist, asserts that according to the Geneva Convention ‘the right of innocent passage extends to ships of all States, without distinguishing between warships and merchant ships’. But ‘this definitely cannot represent the general State practice and is not a rule acceptable to all States . . . . According to a generally recognized rule of international law States have nevertheless the right to prescribe that for the passage of foreign warships advance authorization must be obtained’.24 In support of this proposition he cites, in addition to Hall and Oppenheim, the Rules contained in a resoiution on the matter adopted by the Institute of International Law in 1894. Liu Zheyung, another publicist, in his monograph ‘An Introduction to the Law of the Territorial Sea’, points out that in the Geneva Convention ‘there is absoiutely no provision on the conditions for the passage of warships through the territorial sea’ and calls this a ‘loophole’ of the Convention. Liu also says that according to a generally recognized principle only non-military vessels enjoy the right of innocent passage and coastal states have the right to authorize the passage of warships. 25 In support of these assertions Liu cites the Havard Draft Convention and the statement by Elihu Root, and also the draft Regulation relative to the territorial sea adopted by the Institute of International Law in 1928. During and after UNCLOS III there have emerged three main views in the discussions on the question of innocent passage of warships. One is that construed from the whole text of the relevant section of the UN Convention, the term ‘ships’ in Article 17 includes mititary vessels and so warships have the right of innocent passage, though this is not in accordance with the generally recognized international law theory and practice and is utterly unfavourable to the developing nations.

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The question

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Accordingly, China will have to choose between the non-ratification of the UN Convention and the adjustment of the relevant laws and regulations. While the first choice is theoretically possible, the second alternative is preferable. In conformance to such a perspective the adoption of a notification requirement instead of authorization is suggested. A proponent of this view thinks the prior notification requirement is fully in line with the spirit of the UN Convention and constitutes one of the important measures of implementing the relevant provisions of the UN Convention. Articles 19.1, 25.1 and 22 are cited as the legal basis. As to the security aspect, he concedes that the notification procedure will no doubt ‘bring about some threat to the security of the country, but this problem can be solved if we exercise vigilance and adopt certain measures’. Besides, China is no longer the China of yesterday when it was left to the mercies of others.26 Another view is that there are now divergent interpretations and different practices. One writer, after reviewing the controversies at UNCLOS III, quoted the statement made by the Conference President at the 176th plenary meeting. Pointing out that declarations were made by several delegations expounding their understanding of that statement, 27 he gives prominance to the declaration made by the delegation of China on 30 April 1982. The provisions governing innocent passage through the territorial sea did not prejudice the right of the coastal State to require prior authorization or notification for the passage of foreign warships through the territorial sea in accordance

with its laws and regulations.28

A third view is that since there is no special provision in the two Conventions and since the travaux prkparatoires point to the absence of agreement on this question, the matter is not regulated in conventional law and the rule must be looked for in customary international law.*”

An appraisal of the interpretations 26Yu Ning, ‘A tentative comment on the innocent passage of warships’ (in Chinese), Legal Science Abroad, No 6, Peking University Press, Beijing, China, 1985. See also Chu Chi-wu, ‘Warships should not have the right of innocent passage, (in Chinese), J&rna/ of Peking Colleae of Law and Political Science. No 2, 1983: “Wei Ming (ed), international Law of the Sea, (in Chinese), pp 79-82. **Official Records, Vol XVI, UN, NY, USA, p 162. *‘See Shao Jin, ‘UN Convention on the Law of the Sea and passage of foreign warships through the territorial sea (in Chinese), a paper presented to the Annual Conference of the Chinese Association for International Marine Affairs Research, Beijing, 1985. 30The rejection of Article 24 of the draft convention and the adoption of the Convention (without the original Article 24) occurred at one and the same session on 27 April 1958. 3’0fficial Records of UNCLOS I, Vol 2, p 130.

The first interpretation can be best appraised against the background of the Conventions. The Official Records of UNCLOS I show that at the time when the title of Subsection A was adopted at the First Committee together with the text of the associated articles, there existed a balance between the title and the provisions thereunder. There was, in addition to the provision on the right of ships of all States to innocent passage, a special provision applicable to warships, according to which the coastal state may make such passage subject to prior authorization or notification, although normally passage should be granted (Article 24 of the ILC draft). At that time the title was adequate. However, towards the end of the Geneva Conference the balance was destroyed when the sole provision on the question of the passage of warships was rejected at the plenary meeting. The title has somehow survived”’ but has since become a misnomer. Moreover, titles do not have independent legal existence and as such have no legal force. In fact, the draft committee of the Conference suggested to the First Committee to dispense with all the titles to match the other three Geneva Conventions of 1958.“’ During UNCLOS III the Chairman of the Drafting Committee, in a report on behalf of the President and the Chairman of the First, Second and Third Committees,

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The question of innocent passage of warship.~

in response to a question on the function of titles, submitted that the titles given to parts, sections and articles of the Convention be considered as helpful to an understanding of the structure of the draft and for promoting ease of reference.“2 This opinion is, naturally, also applicable to the Geneva Convention. As to the meaning of the rejection of Article 24 of the ILC draft, suffice it to put forward a few relevant facts. The rejection was effected by instalments in Conference meetings. First the authorization requirement was deleted and then the remaining notification requirement was rejected as a result of the concurring noes of those states finding even the notification requirement unacceptable and those demanding no less than the authorization requirement.“” The latter preferred to exclude the draft article altogether than to have the residue, as that would mean a step nearer to the establishment of the passage right of warships. These episodes show that the exclusion of the article does not signify that warships were given the same right of innocent passage as merchant ships but rather that there was sharp disagreement and the matter was left open. As regards the provisions concerning submarines and the noncompliance of warships with the laws and regulations of the coastal state, they are intended to deal with warships which have entered and are traversing the territorial sea in accordance with the coastal state’s laws and regulations and international law. In addition, submarines are not necessarily military, they may also be, for example, commercial or scientific. So these provisions have nothing to do with the point at issue. More importantly, the argument is in manifest contradiction with the travaux prtparatoires, not to mention the incongruity of attempting to settle a century-old controversy by relying on dubious inferencesa The arguments for the second interpretation have, generally, potent force of logic. Nevertheless, if there had been a specific stipulation on the question of the passage of warships, they might have been better grounded and more convincing. The third view is gaining ground in doctrine as it is based on the absence of a special provision on the matter and the travaux ~r~parat~ires of the two Conventions. 35 As is affirmed in the Preamble to the UN Convention: ‘matters not regulated by this Convention continue to be governed by the rules and principles of general international law’. Now a trend to rely more and more on customary law is also discernable. 32A/CONF 62/L 160, Official Records, Vol XVII, UN, NY, USA, p 226. 330fficial Records of UNCLOS I, Vol 2, pp 66-68. %ee Brownlie, Principles of Public International Law. 1979. DD 206-207. This reasoning will also be applicable to Article 19.2 of the UN Convention, which contains a catalogue of actions which render passage non-inn~ent, so far as the transgressor is a warship. 350p tit, Ref 19 and 20. 36The Statement of France, Official Records, Vol XVII, UN, NY, USA, p 241. 37Remarks by the representative of Conao. Official Records. Vol XVI. DD 29-30: and see also the remarks by the repre: sentative of Iran, Official Records, Vol XVII, UN, NY, USA, p 106.

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The position of customary law Now what is the position of customary law? On this question there again exist different points of view. On the one hand, it is maintained that according to a customary rule ‘all vessels, including warships, may engage in innocent passage in the territorial sea of a foreign State’36; on the other hand, an assertion is made that ‘international customary law established, and the draft convention implied, a legal regime for the passage of foreign warships through the territorial sea which conferred upon all coastal States the right to require prior notification or authorization’.37 The grounds on which these views are built are, however, not elaborated. As is well known, the question of the passage of warships has been one of the most controversial issues in international law since the 61

The question of innocent passage of warships

establishment of the regime of innocent passage in the late 19th century. No agreement as to what is or should be the legal rule has been in existence in the writings of publicists. Nor has there been uniformity in state practice. It seems that both doctrine and state practice during the past 100 years have been dualistic rather than monistic. Differences

in doctrine

before

UNCLOS

I

Opinions of writers on international law have been divided from the outset, with mainly two schools of thought. The first comprises those who deny to warships the same right of innocent passage as merchant ships and confirm the right of the coastal state to refuse the passage of warships through the territorial sea. Hall wrote as early as 1880: This right of innocent passage does not extend to vessels of war. Its possession by them could not be explained upon the grounds by which commercial passage is justified . . . A state has therefore always the right to refuse access to its territorial waters to the armed forces of other states, if it wishes to do ~0.~’

38Hall’s International Law, 8th ccl, Oxford University Press, London, UK, 1924, pp 188-190. ‘?an Tsu-hung, Principles of Public Inter~ationa/ Law (in Chinese), 1922, p 110; Jessup, The Law of Territorial Waters and Maritime Jurisdiction, 1927, p 120; Gidel, Le Droit International Public de la Mer, Vol III, 1934, p 284; Keilin and Vinogradov, Law of the Sea (in Russian), 1939, cited in USSR Academy of Sciences institute of Law, lntemational Law (in Russian), 1957, p 212; and Tunkin, op iit, p 48. #Hatschek, An Outline of fnternational Law (English translation), G. Bell and Sons Ltd, London, UK, 1930, p 138; Westlake, International Law, Vol 1, 1904, p 192; Ross, A Textbook of International Law (English translation), 1947, p 177. 4’Oppenheim’s lnternat~onal Law, Vol I, 7th ed, Longmans, Green and Co, London, UK, p 448. See also Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol 1, 2nd ed., 1951, p 516. 42See O’Connell, The International Law of the Sea, Vol f, 1982, pp 277-279, for a brief survey. “See League of Nations Conference for the Codification of International Law, Rosenne (ed), Vol2, Oceana Publications, NY, USA, pp 283293. 441bid, pp 285290.

62

In a similar sense wrote Tan Tsu-hung (1922), Jessup (1927), Gidel (1934), Keilin and Vinogradov (1939), to name but a few.‘” The second school holds the view that the right of innocent passage is or should be shared equally by warships. Hastschek, for example, declares that the primary obligation of the coastal state in the territorial sea is ‘to allow the innocent passage to foreign ships, including warships’. Writers of this school include Westlake (1904) and Ross (1947).40 There are also views of a qualified character. For example, Oppenheim, while admitting that ‘a right for the men-of-war of foreign states to pass unhindered through the maritime belt is not generally recognized’, maintains that ‘a usage has grown up by which such passage, if in every way inoffensive and without danger, shall not be denied in time of peace’.41 In the last analysis, however, such a view may be ascribed to one of the two schools. So is Oppenheim’s, which may thus be considered to belong to the first school. After UNCLOS I there seems to be a tendency in the writings of publicists to concentrate on the interpretation of the Convention on the Territorial Sea and Contiguous Zone, which has been dealt with above. The differences in doctrine are a reflection of the divergency in state practice. The Hague

Codification

conference

State practice in this area in the past 25 years of the 19th century and at the turn of this century was scarce and ohscure.42 The 1930 Hague Codification Conference offers materials for examining the position of law at that time. Of the 23 states that replied to the question of the right of innocent passage for warships addressed by the Preparatory Committee in a questionnaire, four required or favoured the requirement of previous permission or notification, one was of the opinion that the position of existing law is controversial, and 15 allowed the passage of warships4’ Among the powers, the UK, Germany, Italy and Japan maintained that warships enjoyed or should enjoy the right of innocent passage.44 It is interesting to note that at that time the USA held the view that the passage of warships was not a matter of right but purely one of international comity and courtesy and that the coastal state, if it so

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desired, clearly had the right to require a previous authorization.4s Even the UK, inclined as it was to have the matter continue to be regulated by the existing usage and practice, was prepared to support a US proposal based on international comity theory as it thought that there was no real difference between US and UK proposals.4” The Soviet Union did not participate in the discussions, but from its answers to the questionnaire and the legislation in force at that time it seemed then to allow the passage of foreign warships without special formalities.47 India and New Zealand associated themselves with the UK view.4X Egypt had nothing to te114’ As is well known, the Hague Conference did not lead to a LOS convention. The draft articles on the status of territorial sea, provisionally adopted by the Second Committee and annexed to its Report, stipulates in Article 12: ‘As a general rule, a coastal State will not forbid the passage of foreign warships in its territorial sea and will not require a previous authorization or notification.’ The use here of ‘will’ instead of ‘shall’ signifies that the requirement to the coastal state is not a legally obligatory one. To this point also the Observations to the article: ‘that practice . . . without laying down any strict and absolute rule, leaves to the State the power, in exceptional cases to prohibit the passage of foreign warships in its territorial sea’.“” This formula tends to overemphasize the usage and practice of granting innocent passage for foreign warships, but rievertheless recognizes that the coastal state has the right to decide its position, taking into account its security interests. To this extent the formula reflected the position of customary rule at that time. The ILC drafts

%id p 284; and Vol 4, pp 1397 and 1261261. =/bid, p 1281. 470rder on the Navigation of Vessels in Time of Peace in Coastal Waters within Artillery Range of Shore Batteries of 1924 and Provisional Rules for Warships Visiting USSR Waters of 1931. See Erik Fran&x, ‘The USSR position on the innocent passage of warships through foreign territorial waters, Section Ill, Journal of Maritime Law and Commerce, Vol 18, No 1, 1987. For an opposite interpretation see Nikolaev, The Problem of Territoriai Waters in /ffternationat Law (in Russian), 1954, pp 213-215. @See Rosenne, op tit, Ref 43. Vol 2, p 292. 49ibid, p 291. =/bid, Vol 4, pp 1418-1419. “See Yearbook of the tnternational Law Commission, 1952, Vol II, p 42. “Yearbook of /CL, 1954, Vol II, UN, NY, USA, p 161. 531bid %/bid.

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Professor Francois in his 1952 report to the Fourth Session of the UN International Law Commission reintroduced the formula contained in the above mentioned 1930 Hague draft articles without modification.“’ The corresponding provision of the 1954 ILC draft did not differ substantially from the preceding one: ‘Save in exceptional circumstances, warships shall have the right of innocent passage through the territorial sea without previous authorization or notification’.s2 In 1955 the International Law Commission, having noted the comments of certain governments on this draft and after reviewing the question, adopted a new formula,s3 which was approved also by the 1956 session and was included in the draft articles subsequently submitted as the basis of discussion for UNCLOS I. The formula, incorporated as Article 24 in the 1956 ILC draft is as follows: The coastal State may make the passage of warships through the territorial sea subject to previous authorization or notification. Normally it shall grant innocent passage subject to the observance of the provisions in articles 17 (i.e. the rights of protection of the coastal State) and 18 (i.e. duty of foreign ships to comply with the laws and regulations of the coastal State).‘4

This formula also bears a compromise character, and to a considerable extent emphasized the right of the coastal state to require previous authorization or notification. The commentary to Article 24, giving the rationale, states: While it is true that a large number of States do not require previous authorization or notification . . but this does not mean that a State would not be entitled to require such notification or authorization, if it deemed it necessary

63

The question

of innocent pussage of wurshjp~ to take this precautionary measures. Since it admits that the passage of warships through the territorial sea of another State can be considered by that State as a threat to its security, and is aware that a number of States do require previous notification or authorization, The Commission is not in a position to dispute the right of States to take such a measure.”

It is significant that although the successive ILC draft articles on the question of the passage of warships differ in emphasis, none denies to the coastal state the right to require previous authorization or notification, or, viewed from another angle, all of them have not established the full right of innocent passage for warships. These articles as a whole provide valuable evidence to the existence of parallel practices in this regard. National laws and regulations Only a few national legislations expressly grant the right of innocent passage to foreign warships. A large number of states do not mention in their laws and regulations the procedures for the passage of foreign warships. Some states make a few requirements for the passage of foreign warships through the territorial sea in their existing national laws and regulations. Usually a simple requirement of previous authorization or notification are set out. In some national laws and regulations the requirements are of a mixed nature and are conditional on the locality or the number of passing warships. The Danish Ordinance of 27 February 1976, for example, stipulates: (1) Foreign warships shall enjoy the right of passing through the territorial sea subject to advance notification being given through diplomatic channels . . (2) Where navigation within the territorial sea takes place in connexion with passage of the Great Belt, Samsoe Relt or the Sound, notification shall not be required . . . (3) For simultaneous passage of the territorial sea of more than three warships of the same nationality advance permission, obtained through diplomatic channels, is required. Passage of the Great Belt, Samsoe Belt or the Sound shall be allowed, however, subject to advance notification through diplomatic channels . . . .sh It seems the change of the Soviet Union’s position on the question of innocent passage of warships is not so fundamental as some writers in the West might expect,“7 at least in relation to the passage of foreign warships through the Soviet territorial sea. At about the time when the UN Convention was adopted, Tarhanov, a Soviet publicist, wrote:

551bid, p 277. “National Legislation and Treaties Relatina to the Law of the Sea (STILEGISER B/+3), UN, NY, USA. . %&re Queneudec, ‘La reglementation du passage des navires etrangers dans les eaux territoriales francaises’, Annuaire Franc&s de Droit International, 1985, p 787; op tit, Ref 16. 58Tarhanov. ‘The international law aspects of the activities of the naval fleet of USSR in the world ocean’, in institute of State and Law of USSR Academy of Sciences, International Security and the World Ocean, (in Russian), ‘Hayka’ Press, Moscow, USSR, p 146. The book was signed to press on 21 June 1982.

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As regards the passage of warships through the territorial sea, the text of the Law of the Sea Convention stipulates warships’ right of innocent passage through the territorial sea of the coastal States in zones where the shortest traditional transit routes pass. In zones where no such routes pass, the coastal State may in its discretion establish notification or authorization procedures for such passage and here, therefore, the regulation of the navigation of warships is within the competance of the coastal State, which is obliged also to take into consideration norms of international law.58

This offers a key to understanding the new Soviet concept of the right of innocent passage of warships and also the latest laws and regulations regarding the matter. What Tarhanov has in mind when he talks about the text of the UN Convention is perhaps Article 18.2, which stipulates that ‘passage (ie, innocent passage in the territorial sea) shall be continuous and expeditious’. From this, it seems, the ‘shortest traditional MARINE

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1989

The question of innocent passage uf wurships

transit route’ theory is inferred. Tarhanov’s opinion about the competence of coastal states to prescribe a navigational regime for warships probably has its source in Article 22 on sea lanes and traffic separation schemes. The Supreme Soviet of the Soviet Union adopted on 24 November 1982 the Law on the State Boundary of the USSR, which superseded the 1960 Statute on the same subject. The new law provides that ‘Foreign warships . . . effectuate innocent passage through the territorial waters of the USSR in a manner stipulated by the Council of Ministers’. This provision is amplified in the ensuing Rules for Navigation and Sojourn of Foreign Warships in the Territorial Waters of the USSR and the Internal Waters and Ports of the USSR, confirmed by Decree of the USSR Council of Ministers of 18 April 1983.“9 The Rules make a distinction between passage for the purpose of entering or departing from internal waters or ports and passage for the purpose of traversing the territorial sea without putting in to the internal waters or ports. For the former prior authorization and the use of sealanes and traffic separation schemes are generally required.“’ The latter shall be permitted along routes ordinarily used for international navigation in the Baltic Sea, Sea of Okhotsk and Sea of Japan according to designated traffic separations schemes.61 It seems the recent Black Sea Affair of 12 February 1988 has made it clear that the sphere of application of this provision is the three seas designated. These different requirements in national laws and regulations also point to the plurality in state practice. What deserves attention in this connection is the fact that at present there are at least 40 states making various sorts of requirements in their national laws and regulations, as may be seen in Table 1.

Confrontation and acquiescence Cases of confrontation between flag states asserting the right of innocent passage for warships and coastal states requiring previous authorization, notification or other procedures have been relatively rare. The Corfu Channel Case (1948) is not one in point, as it represents a case of confrontation over the transit through straits. It is certainly of no avail to cite this case in reinforcing the assertation of a warship’s right of passage through the territorial sea.62 One of the rare cases that occurred before UNCLOS III which may be of some value as an example is the Vil’kitskil Straits incident. In August 1967 when two US Coastal Guard icebreakers proceeded towards the Straits, competent authorities of the USSR declared: 5gThe English translation of the Rules in International Legal Materials, 1985, p 1715. 60Articles 12.2, 14. G’Article 12.1. 6*See O’Connell, ?%e in~uence of Law on Sea Power, Naval Institute Press, Annapolis, 1975, pp 138-l 46. ‘“Quoted in Butler, The Soviet Union and the Law of the Sea, Hopkins, Baltimore, USA, 1971, p 69. 64/bid, p 70.

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Vil’kitskil Straits are within USSR territorial waters. Therefore sailing of any foreign navy ships in the straits is subject to regulations of safety of USSR frontiers. For passing the straits according to the above regulations military ship must obtain preliminary permission of USSR Government through diplomatic channels one month before expected date of passage.‘” the circumstances the USA cancelled the navigation. The incident forced the USA ‘tacitly to recognize the capability of the USSR to enforce its previous authorization procedure for foreign warships’.64 O’Connell explains the scarcity of cases of confrontation before UNCLOS III in this way: Under

65

The question

of innocent passage of warship Table 1.

National legislation stipulating requirements.

State Asia Bangladesh Burma China India Indonesia Iran Korea, DPR Korea, South Maldives Oman Pakistan Sri Lanka Yemen, DPR Yemen, AR

a b c

i k m

National Legislation and Treaties Relating to the Law of the Sea (ST/LEG/SER B/19). Foreign Relations Documents of the PRC, Vol 5. See ‘Passage through waters within national jurisdiction: Indonesian perspective’, SEAPOL Studies, No 6(a), pp 1617 and 23. Law of the Sea Bulletin, No 1. Smith, Exclusive Economic Zone Claims, 1986. Law of the Sea Bulletin, No 3. New Directions in the Law of the Sea, Vol VIII. National Legislation and Treaties Relating to the Law of the Sea (ST/LEG/SER B/16). Laws and Regulations on the Regime of the Territorial Sea (ST/LEG/SER B/6). National Legislation and Treaties Relating to the Law of the Sea (ST/LEG/SER B/18). Text provided by the UN Secretariat. International Legal Materials, 1985, p 1715. National Legislation and Treaties Relating to the Law of the Sea (ST/LEG/SER B/l 5).

AuthorNotification x x x

x prohibition x not specific x x x x

Africa x Algeria Cape Verde Egypt Mauritius Seychelles x Somalia x Sudan Sao Tome and Principe Europe Albania Bulgaria Denmark Finland Germany, PDR Malta Romania Soviet Union Sweden Yugoslavia Latin-America Antigua and Barbuda Barbados Brazil Dominican Republic Grenada Guyana Honduras Saint Vincent .ano tirenaornes

Other requirementsLegislation

not specific x x x

not specific

x x x not specific X

x x x x x x

Act No XXVI/1974 Law No 3/l 977 Declaration/l958 AcWl976 Regulation No 811962 Declaration/l982 Proclamation/l977 Law No 3037/l 977 Law No 32l76 Declaration/l 983 Act/l 976 Law No 22/1976 Act No 4511977 Declaration/i 982 Decree No 63-403 Declaration/l982 Declaration/l983 Act No 1311977 Act No 1511977 Law No 37/l 972 Declaration/l982 Declaration/i983 DelaratioWl982 Legislation/l951 Legislation/l976 Declaration/i982 Regulation/l972 Law No 28/1981 Decree No 39/l 956 Rules/1983 Royal Notice No 36611966 Law of 22 May/1965 Act No Act No Decree Act No Act No Act No Decree

X

x x x x x

1811982 1977-26 No 56 515/l 965 366/l 968 17/l 978 1011977 No 191/1935

Act No 15/i 983

e

The Western naval Powers have met demands for previous authorization for passage in the coolest possible manner. Where it is unnecessary to transit the territorial sea they have not bothered to do so, therefore preventing the issue from arising, where they have found it necessary, mainly in the sea lanes of they handled the matter by diplomatic Indonesia and the Philippines, modalities. which again have kept the problem confined to the theoretical. Whereas previous authorization has been required in principle, the demand has in practice been satisfied ‘at a low level’, which means the naval attache telephoning a lieutenant-commander at the local Navy Office.”

a50p

66

tit,

Ref

62, p 140.

Since the promulgation of the new law on the State Boundary and Rules relating to the regime of the Soviet Union’s territorial sea, several affairs have occurred in the Soviet territorial sea. The most recent and illustrative is the Black Sea Affair of 12 February 1988. Two US warships, the destroyer Caron and the missile cruiser Yorktown, entered Soviet territorial sea off Crimea in the Black Sea at 10.45 and 11.03 am respectively, proceeding at a distance of seven to nine miles from the coast. Warnings and demands for immediate leaving the area having been ignored, two Soviet frigates nudged or ‘shouldered out of the way’ the US warships. Collisions happened. Damage turned out to be slight and there were no injuries. The US warships stayed on a course

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The question of innocent passage of warships

that took them out of the territorial sea in about two hours, leaving it at 12.49. Protests came from both sides. In Washington, a US State Department spokesman declared: ‘We intend to continue exercising our rights under international law. The Soviets are obliged to comply with their international commitments’. US officials said the US ships in the Black Sea could easily have chosen to skirt the Crimean Peninsula by more than 12 miles, but deliberately passed there to prove US determination to maintain access within waters that it does not recognize as inviolable. Pentagon officials said the US ships radioed that they were ‘engaged in innocent passage’.66 In Moscow, actions of the two US warships were described as provocative and obviously premeditated. The Soviet Foreign Ministry in a protest note said the responsibility for the provocation leading to the collision of warships of the two countries lay totally with the USA. Admiral Makarov in an interview said ‘according to the existing rules of the USSR foreign warships can exercise the right of innocent passage only in localities where routes for international navigation have been established. The configuration of the coast lines of the USSR is such that international sea lanes of this kind pass only in three localities: the Baltic Sea, Sea of Okhotsk and Sea of Japan. In the Black Sea no such routes have taken shape’.h7 Cases of confrontation are scarce. Generally, a tendency on the part of both flag states and coastal states to avoid a showdown may be seen.

Conclusions

%‘ew York Times, February 13, 1988. 67Pra~da, 14 February 1988. 68Villiger, in his Customary lntemational Law and Treaties, 1985, writes: ‘If State practice is substantially divided and contirms two or more differing solutions on one issue, it is not sufficiently widespread and cannot amount to a general rule . a number of special rules may arise, each regulating the same question in a different manner for different groups of States’, Martinus Niihoff Publishers. Dordrecht. The Netherlands, p 13.

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During the past 100 years or so the right of innocent passage of foreign warships through the territorial sea has never been generally recognized. State practice has been dualistic rather than monistic. One group of states, mostly European and North American, have made no distinction between warships and merchant ships or left the matter unregulated. Another group of states, mostly Asian, African and Latin American, have made some requirements for the passage of warships. And both groups of states hold the conviction that their own practice is in accordance with international law. Since state practice concerning the passage of warships through the territorial sea is clearly divided, there have crystalized two parallel rules. These snecial rules constitute one general customarv 1 , rule. which may be formulated in this way: Coastal states may grant foreign warships innocent passage through the territorial sea without special requirements or make the passage subject to previous notification or authorization, or to some other requirements; foreign warships intending to engage in such passage shall comply with the requirements prescribed in the laws and regulations of the coastal states.

67