The ICFAI University, Dehradun

ICFAI LAW SCHOOL

PUBLIC INTERNATIONAL LAW

LAW OF THE SEA

ASSIGNMENT ON

RIGHT OF PASSAGE IN TERRITORIAL WATERS

SUBMITTED BY: SUBMITTED TO:

Rishabh kumar Mishra Mr. Rupaksh Sharma

16FLICDDN01056 Assistant Professor

BBA.LLB(HONS.) ICFAI Law School

4th Year, Batch: 2016-2021

 ……….Right to Passage in Territorial Waters……….

TABLE OF CONTENTS
______________________________________________________________Page No.

INTRODUCTION…………………………………………………………………..4

RIGHT TO PASSAGE AND ITS CODIFICATION……………………………..5

RIGHT TO PASSAGE UNDER UNCLOS 1982: A WORM’S EYE VIEW……6

UNCLOS 1982: A BIRD’S EYE VIEW……………………………………..…8-19

A. RULES APPLICABLE TO ALL SHIPS………………………………….8-15

THE CONCEPT OF PASSAGE……………………………………………….8

INNOCENT PASSAGE…………………………………………….…………9

POWERS OF COASTAL STATE IN RELATION TO INNOCENT

PASSAGE…………………………………………………………………….11

SEA LANES AND TRAFFIC SEPARATION SCHEMES IN THE

TERRITORIAL SEA…………………………………………………………12

DUTIES OF VESSELS ENJOYING NAVIGATIONAL RIGHTS IN

TERRITORIAL WATERS……………………………………………………13

DUTIES OF COASTAL STATE……………………………………..………14

RIGHTS OF PROTECTION OF THE COASTAL STATE………….………14

CHARGES WHICH MAY BE LEVIED UPON FOREIGN SHIPS.….…….15

B. RULES APPLICABLE TO MERCHANT SHIPS AND GOVERNMENT

SHIPS OPERATED FOR COMMERCIAL PURPOSES………………15-17

CRIMINAL JURISDICTION ON BOARD A FOREIGN SHIP…………….16

CIVIL JURISDICTION IN RELATION TO FOREIGN SHIPS…………….17

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C. RULES APPLICABLE TO WARSHIPS AND OTHER GOVERNMENT

SHIPS OPERATED FOR NON-COMMERCIAL PURPOSES…….…18-19

WHAT IS A WARSHIP?...................................................................................18

WHAT WILL HAPPEN IF A WARSHIP ACTS DETORGATORY TO THE

COASTAL STATE REGULATIONS?..............................................................18

FLAG STATE RESPONSIBILITY FOR DAMAGES CAUSED BY WARSHIP

OR OTHER GOVERNMENT SHIPS…………………………………………19

IMMUNITIES OF WARSHIPS AND OTHER GOVERNMENT SHIPS

OPERATED FOR NON-COMMERCIAL PURPOSES……………………….19

RELEVANT PRECEDENTS………………………………………………….20-23

CORFU CHANNEL CASE……………………………………………………..20

S.S. LOTUS CASE………………………………………………………….…..21

MASSIMILANO LATORRE v. UNION OF INDIA……………………….…22

THE QUEEN v. CARR AND WILSON…………………………………….…22

INDIAN SCENARIO………………………………………………………………24

CONCLUSION………………………………………………………………..……25

REFERNCE…………………………………………………………………….…..27

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INTRODUCTION

The facet of territory in the concept of Statehood includes islands, islets,

rocks and reefs.1 It is composed (‘ab inferos et usque ad sidera’) by land territory

(mainland) and its subsoil, internal waters and their soil and subsoil, and column of

air (the aerial or atmospheric space). These spaces constitute the state’s territory

strictly speaking.2

The water bodies are indeed a pertinent factor for Statehood. Just as we have

laws for land mass, we also have laws governing territorial waters in the

International platform. This assignment makes a meticulous analysis on the ‘Right to

passage in territorial waters.’ The said topic is well explicated with reference to the

International instruments such as the UN Conventions of the Law of the Sea, the

position in the Indian scenario and the national legislations. The relevant precedents

of the Indian and International Courts are also referred here.

1
Beagle Channel Arbitration, 18 Apr.1977, Disposition of the Decision; Red Sea Islands Case, Phase One,
Award of 9th October 1998; ILR 114, 2, Dispositif at 139-9; Quatar v. Baharin, Judgement of 16 March 2001,
paras.200-9

2
Ian Brownlie, ‘Principles of Public International Law’, (Seventh Edition 2008)

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 ……….Right to Passage in Territorial Waters……….

RIGHT TO PASSAGE AND ITS CODIFICATION

Department of Defense Dictionary of Military and Associated Terms defines

innocent passage as the right of all ships to engage in continuous and expeditious

surface passage through the territorial sea and archipelagic waters of foreign coastal

states in a manner not prejudicial to its peace, good order, or security. Passage

includes stopping and anchoring, but only if incidental to ordinary navigation or

necessary by force majeure or distress, or for the purpose of rendering assistance to

persons, ships, or aircraft in danger or distress.

So, right to innocent passage can only be exercised on that part of the sea

which has sovereign power on it by any nation. This right cannot be exercised on the

high sea because of the lack of power or claim over that part by any nation. The true

reason for the granting of the right to innocent passage is the promotion of trade,

commerce and communication between states.3

Law of sea has now become very established after a series of conventions

starting from Hague Codification Conference in 1930 followed by Geneva

Conference on the law of the sea,1958 (UNCLOS I), followed by UNCLOS II in

1960 and then present law of sea (UNCLOS III) came into force in the year 1982. It

is now regarded as a codification of the customary international law on the issue.

3
D.P. O’Connell, International Law (2nd Edn.1970) London

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Geneva conference on the Law of the Sea, 1958 made it clear that coastal

state exercises sovereignty over the territorial water but this is subject to certain

restrictions. In other words, despite the fact that coastal states have sovereignty over

a particular part of the sea, yet it is the duty of the state to provide innocent passage

to the ships of other states.4

Article 17 of UNCLOS provides for innocent passage to the ships of all the

states, whether coastal or land locked through territorial sea. Passage means

navigation through the territorial sea for the purpose of either transversing that sea

without entering internal waters, or of proceeding to internal waters, or making for

the high seas forms internal waters. Passage includes stopping and anchoring but

only in so far as the same are incidental to or are rendered necessary by force

majeure or by distress.5

RIGHT TO PASSAGE UNDER UNCLOS 1982: A WORM’S EYE VIEW

Article 211and Art.21 (1) (f) of the UNCLOS 1982 empowers coastal state to

make laws with regard to the prevention of pollution through vessels. Article 21 of

the UNCLOS 1982 empowers coastal state to make laws for the safety of navigation

and the regulation of maritime traffic, laying of submarine cables, the conservation

4
I. A. Shearer, ‘Starke’s International Law’ (11th Edn. 2007) Oxford University Press, New Delhi

5
David Harris, ‘Cases & Materials on International Law’, (Seventh Edition2011), Rakmo Press Pvt. Ltd, Delhi

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of the living resources of the sea, prevention of fisheries law, scientific research,

prevention of infringement of customs, fiscal, immigration, or sanitary laws.6

Article 22 of UNCLOS 1982 empowers coastal state to implement sea lanes

and traffic separation schemes for the foreign ships exercising the right to innocent

passage through their territorial sea with regard to safety of navigation. However,

they can temporarily suspend right to innocent passage within their territorial sea but

this should be done in accordance with the conventions and laws relating to innocent

passage.7

Even if conditions of passage under Article 18 of UNCLOS 1982 are

fulfilled, there remains exception to the right of innocent passage with respect to

criminal and civil jurisdiction of the coastal state on foreign vessels. A coastal state

may not exercise its jurisdiction on board a foreign vessel unless there is a serious

threat to the coastal state, measures for the suppression of drug traffic are necessary,

requests for aid have been made, or there is a particular situation in which the vessel

has left the internal waters of the coastal state and is still in the territorial sea and

action by the coastal state is warranted. If the vessel cannot be stopped in the

territorial sea, further action may be taken in accordance with the provisions for hot

pursuit under article 111 of the same convention.8

6
Ian Brownlie, ‘Basic Documents in International Law’, (Fourth Edition 1995) Oxford University Press Inc., New
York

7
Ian Brownlie, ‘Principles of Public International Law’, (Seventh Edition 2008)

8
Malcolm N. Shaw, ‘International law’, (Sixth Edition 2008), Cambridge University Press, New Delhi

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UNCLOS 1982: A BIRD’S EYE VIEW

Let us now have a bird’s eye view on each provision of the UNCLOS 1982 which

deals with right to passage.

SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA

Section 3 of the UN Convention on the Law of the Sea of 1982 focus on the various

provisions that revolves around the right to passage in territorial waters. Section 3 is

further divided into three subsections and these subsections together encompasses a

total of 16 Articles.

SUB SECTION A. RULES APPLICABLE TO ALL SHIPS

This is the first Sub-Section under Section 3. It deals with those rules which govern all

sorts of ships. Sub Section A covers Article 17 to Article 26.

THE CONCEPT OF PASSAGE

Article 18 of the UNCLOS embodies the meaning of passage. Passage, in line with

UNCLOS means navigation through the territorial sea for the purpose of traversing

that sea without entering internal waters or calling at a roadstead or port facility

outside internal waters. Navigation for the purpose of proceeding to or from internal

waters or a call at such roadstead or port facility also fall here.

This Article also puts forth certain conditions to deem navigation as passage. Passage

shall be continuous and expeditious. However, passage includes stopping and

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anchoring, but only in so far as the same are incidental to ordinary navigation or are

rendered necessary by force majeure or distress or for the purpose of rendering

assistance to persons, ships or aircraft in danger or distress.9

INNOCENT PASSAGE

Innocent passage is a concept in law of the sea which allows for a vessel to pass

through the territorial waters of another state subject to certain restrictions. Ships of all

States, whether coastal or land-locked, are bestowed with the right of innocent passage

through the territorial sea under Article 17.

Article 19(2) of the convention provides for some exceptions with regard to innocent

passage. Passage is innocent so long as it is prejudicial to peace, good order or

security of the coastal state. In other words, the activity of the vessel exercising the

right of innocent passage should not pose a serious and unacceptable threat to the

coastal state.

Passage of a foreign fishing vessel will not be considered as innocent if they do not

act in conformity with laws passed by the coastal state to prevent such an act.

Submarines and other underwater vehicles are required to navigate on the surface and

to show their flag. Foreign nuclear powered ships or ship carrying other dangerous or

noxious nuclear substance should carry necessary documents and present them while

9
Oppenheims, ‘International Law’ (9th Edn. 1996) Longman Publications, London

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exercising right to innocent passage if asked by the coastal state. They should also

take precautionary measures established for such ships by international agreement.10

Coastal state is immune to hamper, deny or impair the right to innocent passage if

vessel acts in accordance with rules and regulation set up by international convention

and agreements. State shall also not discriminate against the ships of any state or

against ships carrying cargoes to, from on behalf of any state. Coastal state is,

however also required to give appropriate publicity to any dangers to navigation of

which it has knowledge within its territorial sea.11

Article 19 explicates that passage is innocent so long as it is not prejudicial to the

peace, good order or security of the coastal State. Such passage shall take place in

conformity with this Convention and with other rules of international law.

However, the passage of a foreign ship shall be considered to be prejudicial to the

peace, good order or security of the coastal State if in the territorial sea it engages in

any of the following activities:

(a) 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;

(b) any exercise or practice with weapons of any kind;

10
Rattigan, ‘Customary Law, (Sixteenth Edition 2007), Universal Law Publishing Co., New Delhi

11
Sharma O.P., ‘The international law of the sea: India and the UN convention of 1982’ (2009) Oxford university
press, India

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(c) any act aimed at collecting information to the prejudice of the defence

or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the

coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or personcontrary

to the customs, fiscal, immigration or sanitary laws and regulations of

the coastal State;

(h) any act of wilful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any

other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

POWERS OF COASTAL STATE IN RELATION TO INNOCENT PASSAGE

UNCLOS confers powers on the Coastal State to frame laws and regulations with

regard to innocent passage under Article 21. It shall impose laws in respect of the

safety of navigation and the regulation of maritime traffic. It shall take measures for

the protection of navigational aids, installations, cables, pipelines and conservation of

the living resources of the sea. The coastal state shall also introduce laws for the

prevention of infringement of the fisheries laws and regulations of the coastal State

and preservation of the environment of the coastal State and the prevention, reduction

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and control of pollution. Further, it shall also bring about regulations for promoting

marine scientific research and hydrographic surveys and also for the prevention of

infringement of the customs, fiscal, immigration or sanitary laws and regulations of

the coastal State. The coastal State is also bound to give due publicity to all such laws

and regulations.12

Article 21 also envisages certain restrictions and limitations on these powers of a

Coastal State. By no means, the laws and regulations drafted by a coastal State shall

apply to the design, construction, manning or equipment of foreign ships unless they

are giving effect to generally accepted international rules or standards.

Finally, Article 21 mandates that foreign ships exercising the right of innocent passage

through the territorial sea shall comply with all such laws and regulations and all

generally accepted international regulations relating to the prevention of collisions at

sea.

SEA LANES AND TRAFFIC SEPARATION SCHEMES IN THE

TERRITORIAL SEA

In line with Article 22, the coastal State may, where necessary having regard to the

safety of navigation, require foreign ships exercising the right of innocent passage

through its territorial sea to use such sea lanes and traffic separation schemes as it may

designate or prescribe for the regulation of the passage of ships.13

12
Bernaerts, ‘Bernaerts’ Guide To The 1982 United Nations Convention On The Law Of The Sea’ (2006) Trafford
Publishing Co.

13
James Harrison., ‘Evolution of the law of the sea: developments in law-making in the wake of the 1982 Law of the
Sea Convention’

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Moreover, this Article lay down that tankers, nuclear-powered ships and ships carrying

nuclear or other inherently dangerous or noxious substances or materials should

compulsorily confine their passage to such sea lanes. Hence there shall be clear

indicators of such sea lanes and traffic separation schemes on charts to which due

publicity shall be given. The only condition that Article 22 depicts is that, a coastal

State shall make any sort of regulations after duly considering the following factors:

(a) the recommendations of the competent international organization;

(b) any channels customarily used for international navigation;

(c) the special characteristics of particular ships and channels; and

(d) the density of traffic.

DUTIES OF VESSELS ENJOYING NAVIGATIONAL RIGHTS IN

TERRITORIAL WATERS

According to Article 20, in the territorial sea, submarines and other underwater

vehicles are required to navigate on the surface and to show their flag. Article 23

accentuates another duty on the foreign nuclear-powered ships and ships carrying

nuclear or other inherently dangerous or noxious substances. Such ships shall, while

exercising their right of innocent passage through the territorial sea, carry all those

necessary documents and shall also be bound to observe special precautionary

measures established for such ships by international agreements.14

DUTIES OF COASTAL STATE

14
Kissi Agyebeng, ‘Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea’

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The prime duty imposed by Article 24 of the UNCLOS is that the coastal State shall

not hamper the innocent passage of foreign ships through the territorial sea except in

accordance with this Convention. Wherefore a coastal state is not empowered to

impose requirements on foreign ships which have the practical effect of denying or

impairing the right of innocent passage. The Coastal State shall not discriminate in

form against the ships of any State or against ships carrying cargoes to, from or on

behalf of any State. Finally, the coastal State shall give appropriate publicity to any

danger to navigation, of which it has knowledge, within its territorial sea.15

RIGHTS OF PROTECTION OF THE COASTAL STATE

UNCLOS 1982 empowers the coastal state to take all sorts of necessary measures

within the ambit of its territorial sea to prevent those passages which are not innocent.

Article 25 of UNCLOS 1982 deals specifically with this power.

In instances of ships proceeding to internal waters or a call at a port facility outside

internal waters, the coastal State also has absolute right to take the necessary steps to

prevent any breach of the conditions to which admission of those ships to internal

waters or such a call is subject.

But, while exercising this right, the coastal State shall not in any form discriminate

among foreign ships, suspend temporarily in specified areas of its territorial sea, the

innocent passage of foreign ships if such suspension is essential for the protection of

15
Lynden Hall, ‘Territorial Jurisdiction and the Criminal Law’, [1972] Criminal Law Review p.276

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its security, including weapons exercises. Such suspension shall take effect only after

having been duly published.16

CHARGES WHICH MAY BE LEVIED UPON FOREIGN SHIPS

Article 26 embodies two sub articles that elucidates on charges which may be levied

upon foreign ships. The first sub article states that a coastal state shall not levy any

charge on a foreign ship solely on the reason of its passage through the territorial sea.

The second sub article enables the coastal state to levy charges upon a foreign ship

passing through the territorial sea as payment for those specific services which are

rendered to that ship. These charges shall be levied without discrimination.

SUBSECTION B.

RULES APPLICABLE TO MERCHANT SHIPS AND GOVERNMENT SHIPS

OPERATED FOR COMMERCIAL PURPOSES

Sub Section B specifically deals with those rules which can be applied to Merchant

Ships and Government Ships which operate for commercial purposes in the

International Scenario. This Sub Section consists of only two Articles – Article 27 and

Article 28.

CRIMINAL JURISDICTION ON BOARD A FOREIGN SHIP

Stephen Rose ,‘ Naval Activity in the Exclusive Economic Zone : Troubled Waters Ahead’ (1990) O.D.I.L.,
16

Vol.21

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Article 27 implicates that a coastal state shall not exercise its criminal jurisdiction on

board a foreign ship passing through the territorial sea to arrest any person or to

conduct any investigation in connection with any crime committed on board the ship

during its passage. The coastal state is not prevented from exercising criminal

jurisdiction on board a foreign ship in the following instances:

(a) if the consequences of the crime extend to the coastal State;

(b) if the crime is of a kind to disturb the peace of the country or the

good order of the territorial sea;

(c) if the assistance of the local authorities has been requested by

the master of the ship or by a diplomatic agent or consular

officer of the flag State; or

(d) if such measures are necessary for the suppression of illicit

traffic in narcotic drugs or psychotropic substances.

Under no circumstance the above three provisions shall affect the right of a coastal

State to take any steps authorized by its laws for the purpose of an arrest or

investigation on board a foreign ship passing through the territorial sea after leaving

internal waters. The coastal State may also, if the master so requests, notify a

diplomatic agent or consular officer of the flag State before taking any steps, and shall

facilitate contact between such agent or officer and the ship's crew. In cases of

emergency this notification may be communicated while the measures are being taken.

With regard to the manner in which an arrest should be made, the local authorities

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shall have due regard to the interests of navigation. The coastal State may not take any

steps on board a foreign ship passing through the territorial sea to arrest any person or

to conduct any investigation in connection with any crime committed before the ship

entered the territorial sea, if the ship, proceeding from a foreign port, is only passing

through the territorial sea without entering internal waters.

CIVIL JURISDICTION IN RELATION TO FOREIGN SHIPS

The powers of a coastal State in relation to the exercise of its civil jurisdiction are

given in Article 28 of UNCLOS 1982. According to this Article, the coastal State

should not stop or divert a foreign ship passing through the territorial sea for the

purpose of exercising civil jurisdiction in relation to a person on board the ship.

Secondly, the coastal State may not levy execution against or arrest the ship for the

purpose of any civil proceedings, save only in respect of obligations or liabilities

assumed or incurred by the ship itself in the course or for the purpose of its voyage

through the waters of the coastal State. The aforementioned right shall be exercised

without prejudice to the right of the coastal State, in accordance with its laws, to levy

execution against or to arrest, for the purpose of any civil proceedings, a foreign ship

lying in the territorial sea, or passing through the territorial sea after leaving internal

waters.

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SUBSECTION C.

RULES APPLICABLE TO WARSHIPS AND OTHER GOVERNMENT SHIPS

OPERATED FOR NON-COMMERCIAL PURPOSES

The third Sub Section of Section 3 elucidates the rules with regard to Warships and

other Government Ships which operate for purposes that are not commercial. This

subsection covers Article 29 to Article 32.

WHAT IS A WARSHIP?

The definition of the term warship is embedded in Article 29 of the UNCLOS. In line

with Article 29, "warship" means a ship belonging to the armed forces of a State which

bears the external marks distinguishing such ships of its nationality, under the

command of an officer duly commissioned by the government of the State and whose

name appears in the appropriate service list or its equivalent, and manned by a crew

which is under regular armed forces discipline.

WHAT WILL HAPPEN IF A WARSHIP ACTS DETORGATORY TO THE

COASTAL STATE REGULATIONS?

Whenever there is a non-compliance by warships with the laws and regulations of the

coastal State, Article 30 of UNCLOS comes into operation. In instances where any

warship declines to comply with the laws and regulations of the coastal State

concerning passage through the territorial sea and disregards any request for

compliance therewith which is made to it, the coastal State may require it to leave the

territorial sea immediately.

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FLAG STATE RESPONSIBILITY FOR DAMAGES CAUSED BY WARSHIP

OR OTHER GOVERNMENT SHIPS

Article 31 enumerates the responsibility of the flag State for damage caused by a

warship or other government ship operated for non commercial purposes. The flag

State shall bound to bear international responsibility for any loss or damage to the

coastal State resulting from the non-compliance by a warship or other government ship

operated for non-commercial purposes with the laws and regulations of the coastal

State concerning passage through the territorial sea or with the provisions of this

Convention or other rules of international law.

IMMUNITIES OF WARSHIPS AND OTHER GOVERNMENT SHIPS

OPERATED FOR NON-COMMERCIAL PURPOSES

The final provision, i.e. Article 32 guarantees that none of the provisions in UNCLOS

1982 shall affect the immunities of warships and other government ships operated for

non-commercial purposes. The exceptions in various Articles such as Article 30,

Article 31, etc. shall be applicable.

RELEVANT PRECEDENTS

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CORFU CHANNEL CASE17

One of the famous case on the right to innocent passage is The Corfu Channel Case.In

this case, on 22-10-1946 squadron of British warships, the cruisers Mauritius and

Leander; and the destroyers Saumarez and Volage, left the port of Corfu and

proceeded northwards through a channel previously swept for mines in the North

Corfu Strait. Outside the bay Saranda, Saumarez struck a mine and was heavily

damaged whilst towing the damaged ship Volage struck a mine and was badly

damaged. On 13-11-1946, the Britishers removed 22 mines in the north Corfu

channel. As the mines were swept by Britishers, the Albanian army fired at Britishers

causing damage to their ship and lives of the navy. British reported the matter to

Security Council. Later both the countries agreed to refer the matter to International

Court of Justice.

In court, Albania contended that the Corfu channel was an innocent passage. Britain

prayed for the compensation for the damage caused to its ships and lives of the navy.

The international court of justice held Albania liable for installing mines and

explosions in the innocent passage, i.e. North Corfu Channel. The court also held that

Britain intervened the sovereignty of Albania by removing explosive substance from

the territorial water of Albania without its permissions. It was held that Albania

17
United Kingdom v. Albania, [1949] ICJ Rep. 4

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should have given prior intimation to the Britishers regarding the mines and

explosives in their territorial sea. Albania was asked to pay compensation to Britain.

This series of incidents led to the Corfu Channel Case, where the United Kingdom

brought a case against the People's Socialist Republic of Albania to the International

Court of Justice. The Court rendered a decision under which Albania was to pay

£844,000 to Great Britain, the equivalent of £20 million in 2006. But by removing the

mines, Britain intervened the sovereignty. Therefore, the Britain was not entitled to

receive compensation.

S.S. LOTUS CASE18

This is a landmark decision in the area of exercising jurisdiction and delivered by the

Permanent Court of International Justice. The Objective Territorial Principle, applied

here. In this case, a French mail steamer, the LOTUS collided on the high seas with a

Turkish Collier. It was alleged that the collision was due to the gross negligence of

the officer of the watch on board the LOTUS. As a result of the collision, the Turkish

Collier sank and 8 Turkish nationals on board perished. The Turkish Authorities

instituted the proceedings against the officer of the watch, basing the claim to

jurisdiction on ground that the act of negligence on board the LOTUS had produced

effect on Turkish Collier and thus applying the Objective Territorial Principle the

case could be tried in Turkey. By a majority decision the Permanent Court held that

action of the Turkish Authorities was not inconsistent with the International Law.

18
1927 PCIJ series A, No.10

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MASSIMILANO LATORRE v. UNION OF INDIA19

The 2012 Italian shooting in the Arabian sea is an incident under investigation of 15

February 2012, off the coast of southern India, in which the use of lethal force by

members of an Italian navy Vessel Protection Detachment (VPD) on board oil tanker

MV Enrica Lexie was linked to the death of two Indian fishermen on board a fishing

boat. Ajesh Pink and Valentine aka Gelastine, natives of Tamil Nadu and Kerala

respectively, were allegedly shot dead by Italian marines of the Reggimento San

Marco, Marina Militare. The Italian Marines Massimiliano Latorre and Salvatore

Girone are the alleged perpetrators of the crime. The case provides an ample room

wherein it is evincible how a country can exercise its criminal jurisdiction and extra

territorial jurisdiction in its territorial waters and Exclusive Economic Zone.

THE QUEEN v. CARR AND WILSON20

In this case, certain bonds or valuable securities were stolen from a British ocean-

going merchant ship whilst she was lying afloat, in the ordinary course of her trading,

in the river at Rotterdam, in Holland, moored at the quay, and were afterwards

wrongfully received in England by the prisoners with a knowledge that they had been

thus stolen. The place where the ship lay at the time of the theft was in the open river,

sixteen or eighteen miles from the sea, but within the ebb and flow of the tide. There

19
(2012) 252 KLR 794

20
QBD Vol. X. dated 25/11/1882

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were no bridges between the ship and the sea, and the place where she lay was one

where large vessels usually lie. It did not appear who the thief was, or under what

circumstances he was on board the ship. At Page 85, it was held as follows:

“The true principle is, that a person who comes on board a British ship, where

English law is reigning, places himself under the protection of the British flag, and as

a correlative, if he thus becomes entitled to our law's protection, he becomes

amenable to its jurisdiction, and liable to the punishments it inflicts upon those who

there infringe its requirements. If the ship had sailed for this country before he got

ashore with the bonds thus stolen, instead of after, and brought him to this country

against his will, I say he could have been tried and convicted here. The conviction

must be affirmed.”

The alleged offence was committed in a British ship flying the British flag and the

case was correctly tried and convicted in England.

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INDIAN SCENARIO

India is a signatory to the U.N. Convention on the Law of the Sea, 1982.

Besides this, there is a national legislation governing the coastal regions within the

sovereignty of India known as the Territorial Waters, Continental Shelf, Exclusive

Economic Zone and other Maritime Zones Act, 1976.

Section 4(1) of this act deals with right to innocent passage within the

territorial sea of India. It provides that all foreign ship other than the warships which

excludes submarines and other under water vessels shall enjoy the territorial sea of

India. However, section 4(2) this act allows foreign warships including submarines

and other underwater vehicles to enter or pass through the territorial waters after

giving prior notice to the Central Government and they are also required to navigate

on the surface and show their flags. Section4 (3) of this act provides that the Central

Government may, if satisfied that it is necessary so to do in the interests of the peace,

good order or security of India or any part thereof, suspend, by notification in the

Official Gazette, whether absolutely or subject to such exceptions and qualifications

as may be specified in the notification, the entry of all or any class of foreign ships

into such area of the territorial waters as may be specified in the notification.

India’s merchant fleet is global career, and besides Indian trade, its vessels

are also chartered for carrying cargoes. Therefore, right to innocent passage is

exercised by Indian vessels to move and trade across the globe.

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CONCLUSION

There are two notions that have influenced international law relating to oceans. The

first notion talks about the freedom of navigation. It says that sea is common to all

humankind and open to navigational use by all. This notion is borne out by the belief

that geophysical nature of the ocean itself resists any claim of ownership over it. So,

this notion restricts the power of state or an individual with regard to ownership over

sea. The first person to come up with this view was Hugo Grotius expressed in his

seminal thesis on the law of the sea in Mare Liberum in 1609. He set up the foundation

of the principle of freedom of seas.

The second notion seeks to restrict the use of the sea by positing that the sea is

amenable to ownership by persons or states. Thus, whoever may bring any part of the

oceans under his dominion may validly restrict its use by others. The friction between

these two notions has, over the years been, the shaping rod of the law of the sea.

Seas have always been a great importance for humans. The oceans serve as a vital link

between nations in terms of trade, commerce and communication. In this way it has

also been one of the major sources of economy for many nations. These concerns are

the mainstay of the world economy and there have been the push-and-pull factors in

the line of the cross fire between the opposing forces of freedom of navigation on the

one hand and restricted access on the other hand.

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 ……….Right to Passage in Territorial Waters……….

The middle path of the interaction between these two notions discussed is the principle

of innocent passage. After centuries of turbulent evolution, this principle now appears

to have crystallized with its codification in the Law of the Sea Convention.

The United Nations Convention on the Law of the Sea (UNCLOS) bridges the gap

between centuries-old rights and obligations and the new awareness that the seas are

not an inexhaustible resource for those whose geographic or economic development

facilitates maritime exploitation. The UNCLOS represents an exceptionally important

contribution to international relations.

REFERNCE

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a) Books Referred
1. D.P. O’Connell, International Law (2nd Edn.1970) London
2. David Harris, ‘Cases & Materials on International Law’, (Seventh
Edition2011), Rakmo Press Pvt. Ltd, Delhi
3. I. A. Shearer, ‘Starke’s International Law’ (11th Edn. 2007) Oxford University
Press, New Delhi
4. Ian Brownlie, ‘Basic Documents in International Law’, (Fourth Edition 1995)
Oxford University Press Inc., New York
5. Ian Brownlie, ‘Principles of Public International Law’, (Seventh Edition 2008)
6. Malcolm N. Shaw, ‘International law’, (Sixth Edition 2008), Cambridge
University Press, New Delhi
7. Oppenheims, ‘International Law’ (9th Edn. 1996) Longman Publications, London
8. Rattigan, ‘Customary Law, (Sixteenth Edition 2007), Universal Law Publishing
Co., New Delhi
9. Sharma O.P., ‘The international law of the sea: India and the UN convention of
1982’ (2009) Oxford university press, India
b) Articles Referred

1. Bernaerts, ‘Bernaerts’ Guide To The 1982 United Nations Convention On The Law
Of The Sea’ (2006) Trafford Publishing Co.
2. James Harrison., ‘Evolution of the law of the sea: developments in law-making in
the wake of the 1982 Law of the Sea Convention’
(http://www.era.lib.ed.ac.uk/bitstream/1842/3230/1/J)

3. Kissi Agyebeng, ‘Theory in Search of Practice: The Right of Innocent Passage in

the Territorial Sea’ (http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?
article=1024&context=lps_papers)
4. Lynden Hall, ‘Territorial Jurisdiction and the Criminal Law’, [1972] Criminal Law
Review p.276
5. Stephen Rose ,‘ Naval Activity in the Exclusive Economic Zone : Troubled Waters
Ahead’ (1990) O.D.I.L., Vol.21

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