Coastal state regulation of innocent passage : a comparative study

Abstract

This Dissertation examines different provisions of the United Nations Convention on the Law of the Sea (UNCLOS) which relate to innocent passage and how they are interpreted by different coastal States. This work will refer to the historical developments which led to the formation of UNCLOS and then moves on to examine the two words innocent and passage in order to understand what the doctrine of innocent passage entails. This is followed by a comparison of different State practice and interpretation of different UNCLOS provisions, namely article 19(2)(l) and article 21(1) in relation to the adoption of State domestic legislation according to UNCLOS, article 23 in relation to nuclear powered ships and article 29 to 32 in relation to warships. The dissertation will show how the provisions of UNCLOS relating to the innocent passage of foreign vessels in a coastal State’s territorial sea have been enforced by different States in varying degrees which, at times, creates direct resistance to the Convention’s provisions. Such resistance is clearly ascertainable in China’s insistence that warships cannot pass through its territorial sea without prior notification and authorisation. Similarly, New Zealand’s adoption of the ‘Nuclear Free Zone’ and its restrictions against allowing foreign warships passage through its territorial sea unless the New Zealand Prime Minister is convinced that such vessels are not carrying any nuclear material also goes against article 17 of UNCLOS. Along these lines, Russia’s Federal legislation which caters for adopting ‘counterrestrictions’ on foreign warships is still contrary to UNCLOS, regardless of the other foreign States actions towards Russian vessels. In light of this limited State practice, it is apparent that UNCLOS was successful in creating an international source of legislation which caters for this doctrine of innocent passage and where resistance is present, it seems to be in relation to allowing unfettered innocent passage to warships and nuclear-powered ships or ships carrying nuclear or other inherently dangerous or noxious substances.