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 The Right of Innocent Passage of Warships: A Debated
Issue

Gamaliel Rodriguez Ballester*

I. Introduction

The Law of the Sea Convention1 represents one of the most

fundamental and carefully formulated treaties that regulate the
international interests in the ocean. The Convention incorporates
significant provisions regarding issues that create controversy among
countries all over the world, such as the right of innocent passage of a
vessel through the territorial sea of a coastal state, the rights and duties
of nations in the Exclusive Economic Zone (EEZ), and the pollution of
the marine environment.
A problematic issue in the law of the sea is the right of innocent
passage of warships through the territorial sea of a coastal state. The
modem maritime powers, such as the United States and the Soviet
Union, intended the LOSC to be flexible enough so they could have
wide discretion as to what activities their ships could perform in the
ocean. Some countries with less powerful navies, such as China, have
tried to limit the capacity of the naval powers under the Convention,
especially the right of innocent passage of warships through their
territorial sea, by requiring prior authorization and/or notification if
these kinds of ships intend to pass through their territorial waters.
These requirements of prior notification and/or authorization imposed
on warships by these countries are not recognized by the LOSC, since
these requisites interfere with the legal effects that the Convention has
upon the parties that have ratified it. This essay examines the right of
innocent passage under the Convention, the requirements of prior
authorization and/or notification that limit the right of innocent
passage of warships, the US Freedom of Navigation Program, and the
Problem of Maritime Terrorism.

*Professor at Pontifical Catholic University of Puerto Rico School of Law.

United Nations Convention on the Law of the Sea, Dec. 10, 1982 1883 U.N.T.S.
397 [Hereafter referred to as the LOSC or the Convention].
 REVISTA DE DERECHO PUERTORRIQUE4O [VOiL. 54

II. Historic Background

The emergence of the concept of innocent passage is linked to a

struggle between the notion that the sea is common to all humankind
and the idea that the sea could be subject to sovereign territorial
control by states. The former concept rejects any intention of
restricting the access to the oceans by claiming proprietorship over the
sea. The latter notion seeks to put the oceans under the dominion of
states, which means they can forbid their use by others. A point
between these two concepts, insofar as navigation by ships is
concerned, is the right of innocent passage.
The fact that the territorial sea of coastal states should be subject to
the right of innocent passage of foreign vessels has been one of the
most turbulent issues in the law of the sea over history. One author
remarks that:

The history of the law of the sea has been dominated by a central
and persistent theme- the competition between the exercise of
governmental authority over the sea and the idea of the freedom of
the seas. The tension between these has waxed and waned through
the centuries, and has reflected the political, strategic and
economic circumstances of each particular age. When one or two
great commercial powers have been dominant or have achieved
parity of power, the emphasis has laid upon the liberty of
navigation and the immunity of shipping from local
control... When, on the other hand, great powers have been in
decline or have been unable to impose their wills upon smaller
states, or when an equilibrium of power has been attained between
a multiplicity of states, the emphasis has laid upon the protection
and reservation of maritime resources, and 2
consequently upon the
assertion of local authority over the seas.

In ancient times the sea was shared by all states for navigation of
vessels. Some writers like Ulpian and Celsus agreed on this point. The
former maintained that mare quod naturia omnibus pateP- the sea is
open to everybody by nature, the latter declared maris communem
usum omnibus ut aeria4 _ the sea, like the air, is common to all
mankind. More recently Vattel noted the following:

2D.P. O'Connell, "Transit Rights and Maritime Strategy," 123 RUSI, Journal of the
Royal United Services Institute for.Defense Studies 11 (1978).
3 Digest VIII 4, 13.
4 Digest I, 8, 4; XLVIII, 8, 3.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS: ...

It is manifest that the use of the open sea, which consists in

navigation and fishing, is innocent and inexhaustible; that is, he
who navigates, or fishes in it, does no injury to anyone, and that
the sea, in these two respects is sufficient for all mankind; since,
everyone being able to find in their state of communion what was
sufficient to supply their wants, to undertake to render themselves
sole masters of them, and exclude all others, would
5
be to deprive
them, without reason, of the benefits of nature

People who declared that portions of the sea could be subject to

appropriation by states challenged all these positions. The origins of
this opposing view may be traced to the theory of the Glossators who
espoused the canon law of Rome. 6 They founded a theoretical basis
upon which they vested sovereign rights over the sea in the Roman
Emperor.7 This marked the beginning of the struggle between the
proponents of open seas to all and those of restricted access to the
oceans.
These two positions keep being contested along the history of the
world. The Rhodians of the Hellenistic age fought unrelentlessly on
the side of freedom of navigation to protect their maritime interests
and to oppose Mediterranean power hegemony. 8 This led to the9
famous Rhodian Sea Law which was applied on the Island of Rhodes,
and which is said to be the earliest known comprehensive code of the
0
law of the sea.'
Over the ages, several states have laid claim to vast expanses of
the sea." The Republic of Venice, at the peak of its glory, laid claim
to the Adriatic Sea while Genoa laid claim to the Ligurian Sea. 12 Spain
and Portugal made the most extravagant intentions of ownership over
the seas in the 1 5 th century to practically all the oceans in the world.
These claims were based on a donationis Pontificiae (Papal bull)

I M.D. Vattel, The Law of Nations- Book I Ch. XXIII Sec. 281, 185 (P.H. Nicklin &
T. Johnson (1829).
6 Percy Thomas Fenn, Jr., Origins of the Theory of Territorial Waters, 20 Ajil 465,
465
7
(1926).
1bid.
8 John Wilkinson, The First Declaration of the Freedom of the Seas: The Rhodian
Sea Law, in 2 OCEAN YEARBOOK at 91.
9 William Tetley, The General Maritime Law-The Lex Maritima, 20 SYRACUSE J.
INT'L. L. & COM. 105, 109 (1994).
10Bowen L. Florsheim, TerritorialSea, 3000-Year Old Question, 36 J. AIR L. &
COM. 73, 75 (1970).
11Ruth Lapidoth, Freedom of Navigation- Its Legal History and its Normative Basis,
6 J. MAR. L. & COM. 259, 261 (1975).
12 1d.
 REVISTA DE DERECHO PUERTORRIQUE&O [VOL. 54

decreed by Pope Alexander VI on May 4, 1493, by which he purported

to donate the Western and Eastern Hemispheres to Spain and Portugal
respectively, by drawing an imaginary line from the Artic pole to the
Antarctic pole! 13
The significant intellectual discourse on this issue took place in the
17 th century. There were legal arguments of the Dutchman, Hugo
Grotius, arguing for the freedom of navigation, and the Englishman,
John Selden, fighting on the side of restricted sea access. In his treatise
in support of Dutch trading interests in the East Indies, Grotius argued
14
that it would be contrary to natural law to inhibit free navigation.
This is because, "the sea can in no way become the private property of
anyone, because nature not only allows but enjoins its common use.
Neither can the shore become private property of anyone."' 15 He
concluded that not only the free used of the oceans cannot be
prevented, but people are indeed" bound to assist navigation in
whatever way they can, when it can be done without any prejudice to
16
themselves."'
Selden took the opposite position by arguing in defence of the
British Monarch's proprietary claims of the sea around the British
Isles. He was inspired by similar claims made by the British and other
nations throughout history. Selden declared that the "Law of God, or
divine Oracles of Holy Scripture, do allow a Dominion of the Sea."' 7
The concept of the freedom of the seas, with the right of freedom
of navigation was recognized in the 18 th century. 18 This would support
the idea that Grotius' position of the freedom of the oceans triumphed
over Selden's restricted access to the seas. In the words of James
Brown Scott:

In this battle of books, to use the happy expression of Professor

Nys, the Dutch Scholar has had the better part of his English
antagonist. If it cannot be said that Grotius wears his learning
"lightly like flower" the treatise of Selden is, in comparison, over-

13 E. G. Boume, The DemarcationLine ofAlexander VI An Episode of the Period of

Discoveries, in YALE REVIEW 35, 35 (1892-93).

14 Hugo Grotius, MARE LIBERUM SIVE DE LURE QUOD BATA VIS COMPETIT
AD INDICANA COMERCIA, DISSERATO- THE FREEDOM OF THE HIGH SEAS OR
THE RIGHT WHICH BELONGS To THE DUTCH To TAKE PART IN THE EAST INDIAN
TRADE 55 (Oxford University Press 1916) (1608).
15Id.
16Id.
17 John Selden, MA4RE CLAUSUM SEU DE DOMINIO MRIS - OF THE
DOMINION, OR, OWNERSHIP OF THE SEA 99 (Arno Press, 1972) (1652).
18Supra, note 10.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS:... 91

freighted with it; the Mare Liberum is still an open book, the Mare
Clausum is indeed a closed one, and as flotsam or jetsam on
troubled waters rides the waves, whereas its rival, heavy and
water-logged, has gone under.19

The right of innocent passage is justified on the basis of the

necessity of communication between nations and the promotion of
trade and commerce. Despite the fact that the coastal state has
sovereignty over its territorial waters, ships of foreign nations may
navigate through the territorial sea as long as the passage is peaceful.
This norm appears to be logical, since no nation on Earth can seriously
claim that it is self-sufficient and that it does not need input from other
states. Therefore, the right of innocent passage is required if nations
are to be able to prosper and survive in an interdependent world.

III. The Right of Innocent Passage in the 1982 UN Convention

The nature of innocent passage presumes that the navigation

through the territorial sea by a ship is peaceful and does not pose a
threat to the security of the coastal nation. The LOSC indicates that
every coastal State has the right to establish the breath of its territorial
sea up to twelve miles from its baseline. 20 The normal baseline for
measuring the breath of the territorial sea is the low-water line along
the coast.21 Moreover, where the establishment of a straight baseline in
accordance with the method set forth in article 7 has the effect of
enclosing as internal waters areas which had not been considered as
22
such, a right of innocent passage shall exist in those waters.
In the territorial waters, "ships of all States, whether coastal or
landlocked, enjoy the right of innocent passage." 23 This definition is
not controversial, but the purpose of the navigation has to be carefully
scrutinized. A ship may pass though the territorial sea without entering
internal waters or call at a port facility outside such waters.
Conversely, a ship may enter or proceed from internal waters or call at
a port facility outside such waters. 24 However, "ships are not allowed
to 'hover' or cruise around in the territorial sea, because, regardless of
whether or not they are 'innocent', they would not be engaged in

19 James Brown Scott, Introductory Note to GROTIUS, MARE LIBERUM, supra,

note 13.
20 Article 3.
21Article 5.
22 Article 8(2).
23 LOSC, supranote 1, article 17.
24
Article 18(1).
 REVISTA DE DERECHO PUERTORRIQUE&O [VOL. 54

passage., 25 Furthermore, passage is required to be continuous and

expeditious. 26 Nevertheless, ships are permitted to "hover" in the
territorial sea for the purpose of toppage or anchorage incidental to
ordinary navigation, or when rendered necessary by force majeure,
distress or for rendering assistance to persons or crafts in danger.27
The innocent element of the passage is negatively defined as when
it is not prejudicial to the peace, good order or security of the coastal
State.28 These last three terms are characterized by subjectivity making
them susceptible of being implemented in an arbitrary manner.
Therefore, in order to achieve objectivity, article 19(2) incorporates a
laundry list of activities that would render the passage non-innocent.29
The use of words like 'weapons' and the use of 'force' greatly reduce
the discretion of the coastal states to determine what passage is not
innocent.
Article 19(1) also protects the ships that traverse through the
territorial waters by establishing a presumption of innocence until the

25 R.R. Churchill and A.V. Lowe, The Law of the Sea, 3d ed., 82 (Manchester
University Press, 1998)
26 Article 18(2).
27 Id.
28 Article 19(1).
29Article 19(2) indicates the following:
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, the 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;
(c) any act aimed at collecting information to the prejudice of the defense
or security of the coastal State;
(d) any act of propaganda aimed at affecting the defense 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 person
contrary to the customs, fiscal immigration or sanitary laws and
regulations of the coastal State;
(h) any act of willful and serious pollution contrary to this Convention;
(i) any fishing activities;
(I) 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;
(1) any other activity not having a direct bearing on passage.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS: ... 93

contrary is proved by whoever intends to interfere with the vessel.

This could be inferred from this article when it declares that passage is
innocent so long as it is not prejudicial to the peace, good order or
the problem
security of the coastal state. 30 This indicates that the LOSC does not with warships
require ships to demonstrate that their passage is peaceful as a is you cannot
predict
condition to enjoy the right of innocent passage through the territorial whether the
sea of a coastal state. It could be interpreted under article 19(2) that the passage is
determination of whether passage is innocent or not would have to innocent or
not.
take into consideration the manner and purposes involved in the
navigation.
The recognition of a right of innocent passage through the
territorial waters of a coastal state is not absolute. These nations may
adopt laws and regulations in order to protect certain interests in the
territorial sea. 3 1 Coastal states are entitled to regulate the safety of
navigation and regulation of maritime traffic; protection of cables,
pipelines and navigational aids; the conservation and preservation of
the marine environment and its living resources; and the prevention,
reduction and control of pollution; marine scientific research and
hydrographic surveys; and customs, fiscal, immigration or sanitary
concerns.32 These laws and regulations are not to apply to the design,
construction, manning or equipment of ships unless they are giving
33
effect to generally accepted international rules and standards.
However, foreign ships exercising the right of innocent passage
through the territorial sea have to comply with all such laws and
regulations and all generally accepted international regulations relating
34
to the prevention of collisions at sea.
The Convention integrates rules in order for the coastal state to
protect itself from passage that is detrimental to its security. Article 25
gives the right to the coastal nation to take the necessary steps in its
territorial sea to prevent passage which is not innocent. Moreover, in
the case of ships proceeding to internal waters or a call at a port
facility outside these waters, the coastal state also has the right to take
the necessary steps to prevent any breach of the conditions to which
35
admission of those ships to internal waters or such a call is subject.
Even though it is clear that if a ship violates the rules and regulations
of the coastal state the passage would be considered innocent, there are

31 Supra note 28.

"' Article 21.
32 Id. paragraph 1.
33
Id. paragraph 2.
34
Id. paragraph 4.
3 Article 25 (2).
 REVISTA DE DERECHO PUERTORRIQUE9O [VOL. 54

no specific standards as to what steps the coastal nation may take in

order to prevent the breaching of its laws. The only prescribed rule
regarding the enforcement powers of the coastal state is the prohibition
of levying charges upon foreign ships by reason only of their passage
through the territorial waters. 36 Furthermore, the coastal nation may
suspend innocent passage in specified areas of the territorial sea.3 7
However, the suspension must be based on the protection of its
security and cannot be discriminatory in form or in fact among foreign
ships.38 This article withholds authorization from the coastal state to
suspend the right of innocent passage in the entire territorial waters.
However, the duration of the suspension in a specified area of the
territorial sea should be temporary.
All these articles encompass the right of innocent passage of ships
thirough the territorial waters of a coastal nation. Under this regulation,
maritime nations are reassured that their vessels have the right of
innocent passage through the territorial sea of a coastal state. In
addition to this, the articles allow coastal nations that have to tolerate
the passage to protect their peace, good order, and security by
incorporating a list of activities that could be considered prejudicial to
them. Moreover, the right is not absolute, since coastal states have the
right to regulate various areas, such as navigation, the environment,
and living resources. Coastal nations also have the right to enforce
their regulations by suspending the right of innocent passage through
their territorial waters. However, coastal states are precluded from
imposing requirements on foreign ships that have the practical effect
of denying or impairing the right of innocent passage. 39 Moreover,
coastal nations cannot discriminate between ships on the basis of
nationality or cargo. 40 These articles resulted in a wide acceptance by
member states of the right of innocent passage though the territorial
sea. This codification of the right of innocent passage under the LOSC
maintains a balance between the freedom of the oceans and the coastal
nations' sovereignty over their territorial waters.

36 Article 26.
338 Article 25 (3).
1d.
39 Article 24 (1)(a).
40 Article 24(1)(b).
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS:... 95

IV. The Requirements of Prior Authorization and Notification on

the Right of Innocent Passage of Warships: A Legal Puzzle under
the LOSC

The claim that many questions have not been given clear answers
in the 1982 UN Convention on the Law of the Sea is particularly true
in respect of the navigation and other activities of warships. 4 1 The
right of innocent passage of warships has been one of the most debated
issues in the law of the sea. For the purposes of the Convention,
"warship" means a ship belonging to the armed forces of a State
bearing 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.4 2 The LOSC does not require that a
ship be armed to be regarded as a warship. Moreover, a ship does not
need to belong to the "naval" forces of a state, under the command of
an officer whose name appears in the "Navy list" and manned by a
crew who are under regular "naval" discipline.4 3 The more general
reference to "armed forces" is designed to accommodate the
integration of the different branches of the armed forces in various
countries, the operation of seagoing craft by some armies and air
forces, and the existence of a coast guard as a separate unit of the
armed forces of some states.44
The negotiations leading to the adoption of the LOSC, as well as
the provisions of Part II, Section 3 of the Convention leave the
impression that the last Conference was somewhat explicit in
confirming that warships, as well as merchant ships, enjoy the right of
innocent passage through the territorial sea. However, while the major
naval powers seek maximum freedom of maneuver for their warships
in order to secure their interests, other states seek to deny foreign
warships close access to their shores precisely in order to protect their
own security. 45 As a matter of fact, the statements of many coastal
states at the end of the Conference as well as their declarations made

4"Vukas, Budislav, ESSAYS ON THE NEW LAW OF THE SEA 2, Offprint, Zagreb, 1990,
p. 409.
42 Article 29.
41 Oxman, Bernard H., THE REGIME OF WARSHIPS UNDER THE UNITED NATIONS
CONVENTION ON THE LAW OF THE SEA, Virginia Journal of International Law,
United States, 1984, pp. 812-813.
44Id.
41 Supra, note 25.
 REVISTA DE DERECHO PUERTORRIQUE&qO [VOL. 54

upon signature or ratification show that there are different

interpretations of the Convention concerning the right of the coastal
nations to submit the passage of foreign ships to a prior authorization
an/or or notification.46 A sizeable minority of nations-around
forty-currently demands prior authorization and/or notification of the
passage of warships, although the demands have been opposed by the
major western naval powers and in a significant number of cases those
powers have countered the claims by the physical assertion of a right
of passage without seeking authorization from, or notifying the coastal
state.47
In international law literature, there are various views concerning
the right of innocent passage of warships through the territorial sea of
a coastal nation. The early German jurist Pufendorf took a negative
view on the passage of warships through the territorial sea. 48 William
E. Hall held a similar view, writing the following: "this right of
innocent passage does not extend to vessels of war." Its possession by
these kinds of ships could not be explained upon the grounds by which
commercial passage is justified. A state has, therefore, the right to
refuse access to its territorial waters to the armed forces of other
nations, if it wishes to do so.''4 9 Oppenheim admitted that "a right for
the men-of-war of foreign states to pass unhindered through the
maritime belt is not generally recognized," although he on the other
hand maintained 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., 50 A number of publicists hold the opposite view
regarding the right of innocent passage of warships. Hastschek, for
example, asserted that the primary obligation of the coastal state in the
territorial sea is "to allow the innocent passage to foreign ships,
including warships."5 .
Different opinions were expressed by governmental officials
during the Geneva Conference as well as in the negotiations of the

46 Supra, note 25.

47 Supra, note 25.
48 See Pufendorf, bk. Iv, Ch. 5, S.385, 564.
49 William E. Hall, HALL'S INTERNATIONAL LAW, 8' ed. (London: Oxford
University Press, 1924), 188-190.
50 Oppenheim, L, InternationalLaw, a Treatise, ed. H. Lauterpacht, 7' ed. (London:
Longmans, Green, 1948-1952).
51Hatschek, Julius, AN OUTLINE OF INTERNATIONAL LAW, (London: G. Bell & Sons,
1930), 138.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS: ... 97

LOSC. 52 There are in general three views relating to the relevant

provisions of the two treaties. The first view holds that in accordance
with the Conventions, warships have the right of innocent passage
through the territorial sea without prior authorization and/or
notification.5 3 The evidence in support of this position includes article
17 of the LOSC, according to which ships of all States enjoy the right
of innocent passage through the territorial waters, under the heading
"Rules Applicable to All Ships"; and the provisions relating to
submarines and to the noncompliance of warships with the laws and
regulations of the coastal state, which indicates the right of warships.
The second view holds that the Conventions grant a right to the coastal
nation to impose necessary requirements for the passage of warships
through the territorial sea, by arguing that provisions on the meaning
of innocent passage, on the rights of protection of the coastal state, and
on the right of the coastal nation regarding the noncompliance of
warships with its laws and regulations indicate that a coastal state has
the right to require foreign warships to give prior notification or to
seek authorization in advance from the coastal nation when passing
through its territorial sea. 54 The third view maintains that because the
two Conventions failed to reach a compromise regarding the right of
innocent passage of warships, conventional law does not yet regulate
the issue. 55 Thus, customary international law applies.
One of the most important developments related to this
controversy was the agreement between the USA and the former
Soviet Union that, as they put it in the bilateral 1989 Uniform
Interpretation of Norms of International Law Governing Innocent
Passage,

All ships, including warships, regardless of cargo, armament or

means of propulsion, enjoy the right of innocent passage through
the territorial sea in accordance with international law, for which
neither prior notification nor authorization is required.

This agreement demonstrated a significant change of the earlier

Soviet position regarding innocent passage. However, despite the fact
that there are agreements between the United States and Russia, the

52 Keyuan, Zou, Innocent Passage for Warships: the Chinese Doctrine and Practice,
Taylor & Francis, Singapore, 1998, pp. 195-215.
53
Id. at 203.
54
Id. at 204.
11 Id. at 205.
 REVISTA DE DERECHO PUERTORRIQUENO [VOL. 54

laws of many countries requiring prior authorization and/or

notification remain in full force.
The main reason why naval powers favor the right of innocent
passage for warships is because the modem navies perform a variety
of missions around the world. These missions can be categorized as
follows: 1) Naval presence, 2) Strategic deterrence, 3) Sea control, and
4) Projection of power ashore.56 The United States and the Soviet
Union want to preserve the legal framework, which enables their
navies to execute their missions of naval and political presence.57
Both superpowers have frequently sent their vessels to politically or
militarily troubled regions like Central America or the Middle East as
a show of support for friendly states as a counterbalance to the naval
presence of other superpower and will continue to do so. 5 8 Moreover,
strategic deterrence is by far the most important peacetime mission of
59
the superpowers' navies in the era of nuclear powered submarines.
In modem times the term "sea control" connotes the concept of
control in limited areas and for limited periods of time by denying an
enemy the possibility to some seas at some times and asserting one's
own capability to use some seas at some times, using four different
tactical approaches: sortie control, chokepoint control, open area
operations and local defense. 60 These activities have the inherent
characteristics of projecting the power of the particular navy.
The concerns of the countries that require prior notification and/or
authorization are best explained by the Chinese position on innocent
passage of warships. On September 4, 1958, China promulgated the
Declaration on China's Territorial Sea, which is generally regarded as
the first law to regulate the territorial sea of China. On innocent
passage, the Declaration stated that,

No foreign vessels for military use may enter China's territorial

sea without the permission of the Government of the People's
Republic of China. While navigating in the Chinese territorial sea,
every foreign vessel must observe the relevant laws and
regulations laid down by the Government of the People's Republic
of China.

56 Rauch, Elmar, MILITARY USES OF THE OCEAN, Duncker & Humblot, Berlin,
Germany, 1985, pp. 233-235.
57 Id.
58
Id.
59 Id.
60 Stansfiled, Turner, THE NAvAL BALANCE: NOT JUST A NUMBERS GAME, Foreign
Affairs 55, 1977, 339-354.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS: ... 99

There are various historical reasons that explain the Chinese

position on the right of innocent passage of warships. During the
middle and end of the 19 th century when the Qing Dynasty (1644-
1911) was weak, China was often invaded by Western colonial
powers, and most invasions came from the sea. 6 ' The defeated China
had to pay tremendous indemnities and to cede lands and islands to the
victorious powers. 62 Under the "unequal treaties," which were
essentially based on force, China had to allow foreign warships to
navigate along its coastline and to be stationed in inland waters, in
addition to other extraterritorial privileges and rights enjoyed by the
Western powers. 63 This was usually called "gunboat diplomacy" and
64
was a painful experience that is never forgotten by the Chinese.
After the foundation of the People's Republic of China, this nation
faced a number of foreign intrusions into its territorial waters. Time
and again it vigorously raised protests against those intrusions in order
to safeguard its territorial sovereignty. 65 Most of the intrusions were
made by American warships. By the end of 1966, the number of
protests against American intrusions had reached 418. These
intrusions were condemned as violations of China's territorial integrity
and sovereignty. 66 In fact, this 1958 Declaration on the Territorial
Sea, which laid down the prior authorization procedure, was triggered
67
by the frequent intrusions by American warships.
In addition to this, the fear of China regarding warships is rooted
in the perception that the US sees the Chinese as a potential threat to
the Unites States' position of being the most powerful world
superpower. The Chinese think the US would do everything in its
power to undermine China's possibilities of one day being able to
challenge the power of the United States in the international
community. In the eyes of China, the US would feel uncomfortable if
the Chinese reach high levels of technological, economic, and military
development. The restrictions on warships are only a few ways in
which China tries to limit the US capacity to monitor the activities the
Chinese perform in their territory. American warships could, perhaps,
conduct acts of espionage in China's territorial waters. Many of these
factors are not discussed openly in formal negotiations. Nevertheless,

61Supra, note 52 at 212.

62 Id.
63 Id.
64
1d.
65 id.
66 Id.
67 Id.
 100 REVISTA DE DERECHO PUERTORRIQUE&O [VOL. 54

the Chinese certainly consider them, but choose instead to argue

politely that they are protecting their "national security".
As mentioned before, China maintains that one of the most
important considerations in the establishment of its territorial sea is to
safeguard its national security. It indicates that the passage of warships
is different from that of commercial ships, because warships are
68
equipped with arms and possess fighting and offensive capabilities.
They constitute a potential threat to the security of the coastal state
when they are in its territorial sea. Based on this assumption, it is
understandable that the coastal state wishes to treat the passage of
merchant ships and warships through its territorial waters differently,
in particular from the point of view of its national security and
sovereignty. 69 Therefore, according to China, the coastal state shall
decide, in accordance with its own laws and regulations, whether or
not the right of innocent passage through the territorial sea to foreign
military vessels shall be granted. 70 It is an infringement of the
sovereignty of the coastal nation and constitutes a threat to its
independence and security if a warship does not comply with the laws
and regulations of the coastal state requiring prior notification or
authorization from that nation in order to pass through its territorial
waters.7 1
The Chinese defended their position vigorously in the negotiations
related to the LOSC. Because the Informal Composite Negotiating
Text (ICNT) of the Conference made no difference between warships
and merchant ships, the Chinese delegate suggested a revision of
articles 17, 20, and 29 of the ICNT. At the 9 th session of the
Conference in 1980, the Chinese delegation pointed out again that
China had a serious reservation with respect to the regime of innocent
passage through the territorial sea as provided in the ICNT.72 The
Chinese representative stated that "the passage of foreign warships
through the territorial waters is a matter which bears upon the
sovereignty and national security of the coastal state. Naturally, the
coastal nation has the right to make the necessary regulations in
respect of such passage." The relevant provisions in the new
Convention on the Law of the Sea should take full account of such
73
reasonable positions and demands.
68 Supra note 52 at 200.
69 Id.
70 Id.
71
Id. at 201.
72 Id.
73 Id.
 2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS:... 101

The Chinese position was supported by a considerable number of

participating countries during the Conference, and China and other
countries holding a similar position put forward joint statements on the
issue of innocent passage. It was suggested in a joint proposal to add a
paragraph to article 21 of the INCT to the effect that the coastal state
shall, in accordance with its laws and regulations, have the right to
require foreign military vessels to tender prior notification to or seek
prior approval from that state when passing through the territorial sea.
This requirement was asserted to be consistent with principles of
international law according to the generally recognized principle that 74
only foreign nonmilitary vessels enjoy the right of innocent passage.
The passage of warships through the territorial sea concerns the
sovereignty and security of the coastal nation, and it shall certainly
have the right to make necessary regulations.75 It is unfortunate for
China's position that the above proposal was not adopted in the
Conference due to the opposition of the maritime powers, particularly
the United States and the Soviet Union.76 At the 1th session of
UNCLOS III in 1982, 27 coastal states, including China, put forward a
proposal demanding that the single word "security" be inserted into
article 21 (1)(h) of the draft Convention-that is, "the prevention of
infringement of the customs, fiscal, immigration, security, or sanitary
laws and regulations of the coastal State." This proposal was again
rejected by the maritime powers. The President of the Conference
broke through the impasse by reading the following statement at the
Conference after the sponsors of the proposal agreed to withdraw it:
"Although the sponsors of the amendment had proposed it 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 nation to safeguard their security interests, in
accordance with articles 19 and 25 of the draft Convention." Thus, the
provisions regarding the innocent passage in the INCT, and the
eventual Convention, remained unaffected. In an explanatory
statement, the Chinese delegate expressed that the provisions on
innocent passage through the territorial sea in the draft Convention
shall not hamper the right of the coastal state, in accordance with its
laws and regulations, to require foreign warships to provide advance

74 Id.
75 Id.
76 Id.
 REVISTA DE DERECHO PUERTORRIQUE&O [VOL. 54

notice or obtain prior permission from the coastal nation when passing
through the territorial sea.
The head of the Chinese delegation stated at the final session of
UNCLOS III that there were still shortcomings and even serious
defects in the provisions of quite a few articles in the Convention. For
example, the provisions on innocent passage through the territorial sea
did not make clear the regime of passage of warships through the
territorial sea. As a matter of fact, when China ratified the 1982
Convention in 1996, it made the following statement with a view to
innocent passage:

The provisions of the United Nations Convention on the Law

of the Sea concerning innocent passage through the territorial
sea shall not prejudice the right of a coastal State to request, in
accordance with its laws and regulations, a foreign State to
obtain advance approval from or give prior notification to the
coastal State for the passage of its warships through the
territorial sea of a coastal State.

The adoption of the 1982 Law of the Sea Convention triggered the
discussion of the right of innocent passage of warships in Chinese
academic circles again, together with the consideration of the Chinese
ratification of the Convention. 77 However, this time the debate
included a variety of different views. One of these views still argues
for the previous governmental position, that there is no customary
international law relating to the passage of warships through the
territorial sea.78 Because China has not acceded to any of the
international treaties on the territorial sea, it may thus regulate the
passage of foreign warships through its territorial sea in accordance
with the sovereignty over the territorial sea and on behalf of national
interests. Another view realized the changed situation, particularly
after the adoption of the 1982 Convention, and suggested replacing
prior authorization with prior notification. 79 In that author's view, the
prior notification procedure would be more consistent with the new
Convention than that of the prior approval. Other authors regard the
current requirement concerning foreign warships stipulated in the 1992
Territorial Sea Law as a drawback. They argue that such a requirement
is not in compliance with the 1982 Convention and can cause
detrimental effects or even disputes. Moreover, it confines the freedom

77 Supra, note 52 at 205.

78 Id.
79 Id.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS:... 103

of the Chinese warships in accordance with the principles of

reciprocity. Therefore, it is unfavorable with China's maritime
interests. 8° These authors conclude that warships should enjoy the
right of innocent passage through the territorial sea like other ships.
In April 1995, the Chinese Society of the Law of the Sea convened
a seminar to discuss the Chinese ratification of the 1982 Law of the
Sea Convention. 8 1 There were three different views expressed at the
seminar. One held that the provisions requiring foreign warships to
obtain prior approval from the Chinese government contained in the
1992 Territorial Sea Law were not consistent with the Convention.
Accordingly, China should make a statement or explanation on this
matter when ratifying the Convention. 82 The second view was that
although the Convention provides that all foreign ships enjoy the right
of innocent passage though the territorial sea, it does not say that the
coastal state cannot require military vessels to tender prior notification
or obtain prior permission. Furthermore, in international practice, there
are many countries that impose various restrictions on foreign
warships passing through their territorial seas, including prior
notification and approval.8 3 Hence, the Chinese domestic law is not
inconsistent with the Convention. According to the third view, there is
no provision in the 1982 Convention on the right of innocent passage
through the territorial sea enjoyed by warships. It is therefore not
necessary to make a statement or explanation when ratifying the
84
Convention.
China, as many other nations, has incorporated the second view on
innocent passage in its domestic legislation. The Law of Maritime
Traffic Safety, which came into effect on January 1, 1984, provides in
article 11 that "no military vessels of foreign nationality may enter the
territorial sea of the People's Republic of China without being
authorized by the Government thereof." Moreover, the 1992 Law on
the Territorial Sea and the Contiguous Zone contains several important
provisions related to innocent passage. According to article 6 of the
Territorial Sea Law, foreign ships used for military purposes shall
be subject to permission of the Chinese government before
entering the territorial sea.

80 Id.
81 Id.
82 Id.
83 Id.
84 Id.
 REVISTA DE DERECHO PUERTORRIQUE&O [VOL. 54

Many coastal states have stipulated restrictions on the right of

innocent passage of warships. The countries that impose conditions on
the passage of foreign warships through the territorial sea can be
classified into two categories. 85 One category requires prior
notification if a foreign warship intends to navigate through the
territorial waters of a coastal nation. It appears that at present
Croatia, 86 Egypt, 87 Finland, 88 Guyana, 89 India, 90 South Korea,91
Libya,92 Malta, 93 Mauritius,94 and the former Yugoslavia (now Serbia
and Montenegro) 95 require prior notification for the passage of foreign
warships through the territorial sea. This just requires the ship to
inform the coastal nation of its intent to enter the territorial waters.
The majority of these nations do not mention the time requirements for
such notification. However, Croatia and former Yugoslavia require the
notice to be made at least 24 hours before the actual passage while
South Korea requires it to be given 3 days in advance.
97
Moreover, as of today, Algeria, 96 Antigua and Barbuda,
101 Cape Verde, 10 2
Bangladesh, 98 Barbados, 99 Burma, 100 Cambodia,
1 5 Iran, 10 6 Maldives, 10 7
China,' 0 3 Congo (Brazzaville), 10 4 Grenada,

85 Id. at 206.
86 Maritime Code, 27 January 1994, in LOSB, vol. 42 at 26.
87 Instrument of Ratification of the LOSC, in LOSB, vol. 3 at 13.
88 Article VII of Law No. 52/AN/78 of 9 January 1979. See. J. Ashley Roach And
Robert W. Smith, United Nations Responses to Excessive Maritime Claims, 2d ed.,
273
89
(Martinus Nijhoff Publishers, 1996)
1d.
90 Id.
1 Presidential Decree No. 17803, 18 December, 2002, in LOSB vol. 51 at 88.
92 Roach and Smith, US Responses, supra note 88 at 267.
93 Instrument of Ratification of the LOSC, in LOSB vol. 26 at 6.
94 Roach and Smith, US Responses, supra note 88 at 267.
91 Article 17 of Act concerning the Coastal Sea and the Continental Shelf, 23 July
1987 in LOSB vol. 51 at 88.
96 Instrument of Ratification of the LOSC, in LOSB vol. 31 at 7.
97 Territorial Waters Act, 1982, Act No 18, in LOSB vol. 2 at 1.
98 Instrument of Ratification of the LOSC, in LOSB, vol. 46 at 14.
99 Roach and Smith, US. Responses, supra note 88 at 266.
100 Territorial Sea and Maritime Zones Law, 1977, Law No 3 of 9 April 1977, in
LOSB vol. 2 at 9.
101 Roach and Smith, U.S. Responses, supra note 88 at 266.
102 Instrument of Ratification of the LOSC, in LOSB vol. 1 at 17.
103 Article 6 of Law on the Territorial Sea and the Contiguous Zone, 25 February

1992, in LOSB, vol. 21 at 24.

104 Roach and Smith, U.S. Responses, supra note 88 at 267.
105 Id.
106 Marine Areas Act, 1993, in LOSB vol. 24 at 10.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS: ... 105

Oman,'° 8 Pakistan,' 9 Philippines, 10 Romania, 1 ' St. Vincent and the

112 Seychelles," 1 4 Sri Lanka,115 Sudan,' 16
Grenadines, Somalia,
Syria, 17 UAE,118 Vietnam,1 9 and Yemen' 20 require prior
authorization for the passage of warships through the territorial sea.
This implies in itself that the coastal state considers the pursuance of
the right of innocent passage of warships to be subject to its
consent. 121 Authorization presupposes a communication of the
intended conduct to the coastal nation's authorities.1 22 This needs as a
second element the responding communication by that authority
granting permission to proceed. 123 If the coastal state for what reason it
holds sufficient refuses to give authorization, it appears that the
warship would not be able to exercise the right of innocent passage. In
relation to this, Vietnam, for example, demands a mix of prior
notification and permission for certain vessels to enter its internal
waters, territorial sea, or contiguous zone. Its 1980 decree of the
Government Council on Regulations for Foreign Fishing Ships
Operating in Vietnamese Maritime Zones 124 requires uninvited
military ships that wish to enter the contiguous zone of Vietnam to
seek authorization from the Vietnam government through diplomatic
channels at least 30 days in advance. If permission is granted, the
warship has to notify the Ministry of Communication and Transport
48 hours before entering the contiguous zone of Vietnam.

107 LOSB vol. 41 at 16.

108 Instrument of Ratification of the LOSC, in LOSB, vol. 14 at 8.
109 Roach and Smith, U.S. Responses, supra note 88 at 267.
110
Id.
" Article 21 of Act concerning the Legal Regime of Internal Waters, Territorial
Waters and the Contiguous Zone.
112 Roach and Smith, U.S. Responses, supra note 88 at 267.
13 Maritime Zones Act, 1999, in LOSB vol. 48 at 18.
114 Roach and Smith, U.S. Responses, supra note 88 at 267.
115Id.
116 Id.
117 Id.
118 Federal Law No. 19, 17 October 1993, in LOSB vol. 25 at 94.
119 Roach and Smith, U.S. Responses, supra note 88 at 267.
120 Instrument of Ratification of the LOSC, in LOSB vol. 25 at 20.
121 Wegelein, Florian, INNOCENT PASSAGE Seattle, United States, 1999, p. 2.
122 Id.
123 Id.
124 Decree of the Government Council of the Socialist Republic of Vietnam on
Regulations for Foreign Fishing Ships Operating in Vietnamese Maritime Zones, Jan
29, 1980, cited in Mark J. Valencia, "Vietnam: Fisheries and Navigation Policies and
Issues," Ocean Development and InternationalLaw 21 (1990): 436 n. 25.
 REVISTA DE DERECHO PUERTORRIQUE&O [VOL. 54

Despite the controversy regarding the right of innocent passage of

warships, an interpretation of the 1982 UN Convention on the Law of
the Sea as granting this right to those ships is reasonable and practical.
The right of innocent passage of warships can be inferred from articles
17 and 19(a)(b). Article 17 does not differentiate the ships that have
the right of innocent passage. It simply says that all ships of all States
enjoy it. This could certainly be interpreted as permitting warships to
have the right of innocent passage. Moreover, the activities related to
the use of force and weapons included in article 19(a) (b) are mostly
related to warships. Commercial vessels are unlikely to use force or
conduct exercises with weapons. If this article prohibits these activities
that are mostly related to warships, it would be logical to assume that
these ships have the right of innocent passage in order to be navigating
through the territorial sea of the coastal state in the first place. In
addition to this, the LOSC includes express rules that apply to
warships when they are exercising the right of innocent passage
through the territorial waters of a coastal state. For example, if any
warship does not comply with the laws and regulations of the coastal
nation concerning passage through the territorial sea and disregards
any request for compliance therewith which is made to it, the coastal
25
state may require it to leave the territorial sea immediately.'
The problem with the right of innocent passage by warships is that
the issue has not been forced. Where a coastal state requires no
authorization or notification, it seems that the naval powers give
none.1 26 Where some requirement is laid down, low-level contacts
between naval attachds and local navy officers, on a rather informal
basis, seem to be favored. 127 Any such contact occurs against a general
diplomatic background of consistent denials by "naval" states of the
legality of requirements of prior notification or authorization for
passage. 128 As a result of this, the issue goes in circles and avoids a
solution that would give uniformity to the right of innocent passage of
warships.

V. The Regime of Transit Passage

The regime of transit passage applies to straits which are used for
international navigation between one part of the high seas or an

125 Article 30.

126 Supra note 25.
127 Supra, note 25.
128 Id.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS:... 107

exclusive economic zone and another part of the high seas or an

exclusive economic zone. 29 There are three categories of straits that
are not included in this definition. The first is the straits through which
there is a high seas route, or a route through an exclusive economic
zone, of similar convenience with respect to its navigational and
hydrological characteristics, such as the so-called Florida Strait
between the USA and Cuba.1 30 The second category is that of straits
formed by an island bordering the strait and its mainland, where a
route of similar navigational and hydrographic convenience exists
through the exclusive economic zone or high seas seaward of the
island, as in the Straits of Messina between Italy and Sicily and the
Pemba Channel off Tanzania.1 3 ' The third is that of straits connecting
an area of the high seas or an exclusive economic zone with the
territorial sea of a third State, such as the Straits of Tiran. 132 In the first
of these exceptional cases, there exists freedom of navigation through
the economic zone or high-seas route, and the right of innocent
passage through the bands of territorial seas which lie on either side of
it. 133 In the second and third categories, there is the non-suspendable
right of innocent passage under the LOSC. 134 However, in all three
cases, coastal states may regulate innocent passage through the part of
the strait falling within their territorial waters in the same way that
they regulate innocent passage through other parts of their territorial
35
seas. 1
The LOSC indicates that in straits referred to in article 37, all ships
and aircraft enjoy the right of transit passage, which shall not be
impeded. 136 Transit passage means the exercise of freedom of
navigation and over flight solely for the purpose of continuous and
expeditious transit of the strait between one part of the high seas or an
exclusive economic zone and another part of the high seas or an
exclusive economic zone. However, the requirement of continuous and
expeditious transit does not preclude passage through a strait for the
purpose of entering, leaving or returning from a state bordering the
strait, subject to the conditions of entry to that state.137 Moreover,

129 Article 37.

130 Supra note 25 at 105.
131 Id.
132 Id.
133 Id.
134
Id.
135 Id.
136 Article 38 (1).
137 Article 38 (2).
 REVISTA DE DERECHO PUERTORRIQUE&O [VOL. 54

states bordering straits may designate sea-lanes and prescribe traffic

separation schemes for navigation in straits where necessary to
promote the safe passage of ships. 1 38 Furthermore, the LOSC
authorizes bordering states to regulate certain areas, such as the safety
of navigation, pollution, fishing, and the loading and unloading of any
commodity, currency or person in violation of fiscal immigration or
39
sanitary laws. 1
The validity of regulations of warships' passage in straits where
there is no right of transit passage depends on the category of straits at
hand. In the first category, coastal states have discretion to regulate
under the regime of innocent passage the bands of territorial waters
which lie on either side of the strait. Moreover, as mentioned before,
in the second and third categories applies the non-suspendable right of
innocent passage. However, in these two last categories, coastal states
may still regulate innocent passage in those parts of the strait falling
within their territorial seas. Under the regime of innocent passage any
requirement of prior notification or authorization imposed on warships
in these straits would be contrary to the dispositions of the LOSC.
It should be noted that article 38(1) confers upon "all ships and
aircraft" the right of "unimpeded transit passage." Moreover, there
shall be no suspension of transit passage. 4 ' This granting clause
makes no distinction between categories of ships and aircraft, their
nationality or ownership, their status as a warship or merchant ship, or
civil or state aircraft. 141 The right of transit passage, therefore, applies
literally to all types of ships and aircraft, regardless of their individual
characteristics, and without the requirement of authorization or
notification as a pre-condition to passage. 142 Therefore, under the
LOSC, warships enjoy an unrestricted right of transit passage through
the international straits covered by article 37.

VI. The Unique Regime of Passage in Archipelagic States

The LOSC defines an archipelagic nation as a State constituted

wholly by one or more archipelagos.1 43 Archipelago means a group of
islands, including parts of islands, interconnecting waters and other

138 Article 41 (1).

139 Article 42 (1).
140 Article 44.
141V Caminos, Hugo, THE LEGAL REGIME OF STRAITS, Martinus Nijhoff Publishers,
Hague, 1987, p. 144.
142 Id.
143 Article 46 (a).
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS: ... 109

natural features which are so closely interrelated that such islands,

waters and other natural features form an intrinsic geographical,
economic and political entity, or which historically have been regarded
as such. 144 In order to measure the breath of the territorial sea, the
LOSC allows archipelagic states to draw strait archipelagic baselines
joining the outermost points of the outermost islands and drying reefs
of the archipelago provided that within such baselines are included the
main islands and an area in which the ratio of the area of the water to
the area of the land, including atolls, is between 1 to 1 and 9 to 1.145
The length of such baselines shall not exceed 100 nautical miles,
except that up to 3 per cent of the total number of baselines enclosing
any archipelago may exceed that length, up to a maximum length of
125 nautical miles. 146 As can be seen by examining the map of
Indonesia, which is the archetypical archipelagic state, the adoption of
archipelagic baselines can create archipelagic waters of enormous
47
proportions. 1
The LOSC grants to ships of all States the right of innocent
passage through archipelagic waters. 148 This right may only be
suspended, temporarily and in specified areas, for security reasons,
after due notice has been given. 149 However, an archipelagic state may
designate sea lanes and air routes thereabove, suitable for the
continuous and expeditious passage of foreign ships and aircraft
through or over its archipelagic waters and the adjacent territorial
sea. 150 Moreover, all ships and aircraft enjoy the right of archipelagic
sea-lanes passage in such sea-lanes and air routes. 15 1 Archipelagic sea
lanes passage means the exercise of the rights of navigation and
overflight in the normal mode solely for the purpose of continuous,
expeditious and unobstructed transit between one part of the high seas
or an exclusive economic zone and another part of the high seas or an
52
exclusive economic zone.
The regime of innocent passage is generally applicable throughout
archipelagic waters in the same manner as in the territorial sea or

144 Id. (b).

14" Article 47 (1).
146 Ibid. (2).
147 Robertson, Horace B. 1982, THE NEW LAW OF THE SEA AND THE LAW OF ARMED
CONFLICT AT SEA.
148 Article 52 (1).
149 Article 52 (2).
150 Article 53 (1).
151 Article 53 (2).
152 Article 53 (3).
 REVISTA DE DERECHO PUERTORRIQUENO [VOL. 54

internal waters enclosed by a system of straight baselines. 153 Since the

regime of straits into and within the archipelago is subsumed within
the broader regime of archipelagic sea lanes passage, the right of
innocent passage outside such lanes may be suspended temporarily in
archipelagic waters for security reasons, as in the territorial sea outside
straits. 154
The more liberal regime of archipelagic sea lanes passage, rather
155
than mere innocent passage, is applicable in archipelagic sea lanes.
The right of sea-lanes passage applies to all ships, regardless of the
characteristics of the vessels. It would be reasonable to conclude that
the requirements of prior notification and/or authorization are not
recognized under this regime either. Hence, the imposition these
requisites to the passage of warships would be against the express
provisions of the Convention.
In sum, coastal states have sovereign control over their internal
waters, archipelagic waters, and the territorial sea. The right of
innocent passage applies in the territorial sea, archipelagic waters as
well as within the internal waters created by a system of straight
baselines. In addition to this, there is an unimpeded right of transit
passage through straits covered by article 37. The archipelagic sea
lanes passage regime is essentially the same as transit passage through
straits, and the rights and duties of foreign states and the archipelagic
state in respect of archipelagic sea lanes passage are the same, mutatis
mutandis, as the rights and56duties of foreign states and strait states in
respect of transit passage. 1
In terms of strategy, the major naval powers intended these
innovations in the Convention to be favorable to their maritime
interests. Indeed, it has been formally acknowledged by US officials
that continued access to the "oceans throughout the world, including
areas off foreign coasts at great distances from the United States, is
vital to US security and economic interests in global navigation,
overflight and telecommunications."' 57 Consequently, it was logical
that the United States did not have the intent to include a regime in the
LOSC which could interfere with the global blue water deployment of
its surface and submarine fleet or force upon it any change in strategic

"ISupra note 43 at 859.

54
1 Id.
Id.
155
156Supra note 25 at 127.
"I U.S. Department of Defense, NATIONAL SECURITY AND THE CONVENTION ON
THE LAW OF THE SEA I (2d ed. 1996).
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS: ... 111

thinking.' 58 The new sovereignty and jurisdictional zones could have

threatened the capacity for the navies to preposition and project
force. 159 Moreover, mobility might have been inhibited and reaction
time greatly increased by a consent or notification regime of passage
60
through straits, the territorial sea or archipelagic waters.'

VII. The US Freedom of Navigation Program

The government of the United States has been assiduous in

responding to excessive maritime claims through a program to
preserve and enhance navigational freedoms worldwide. 61 This
program, named the US Freedom of Navigation (FON) Program, was
formally instituted during the Carter Administration in 1979 to
highlight the navigation provisions of the LOS Convention to further
the recognition of the national need to protect maritime rights
throughout the world. 162 The FON Program has been implemented
under the Reagan, Clinton and Bush Administration. It is a peaceful
exercise of the rights and freedoms recognized by international law
and is not intended to be provocative. 163 In his oceans policy statement
on 10 March 1983, President Reagan restated US policies with respect
to the Freedom of Navigation Program:

The US will accept and act in accordance with the balance of

interests relating to traditional uses of the oceans-such as
navigation and over flight. In this respect, the US will recognize
the rights of other states in the waters off their coasts, as reflected
in the Convention, so long as the rights and freedoms of the US
and others under international law are recognized by such coastal
states.. .It has been US policy to exercise and assert its navigation
and over flight rights and freedoms on a worldwide basis in a
manner that is consistent with the balance of interests reflected in
the 1982 Law of the Sea Convention. The US will not, however,
acquiesce in unilateral acts of other states designed to restrict the

158Supra note 56 at 235.

159 Id.
160 Id.
161 Galdorisi, George, THE US FREEDOM OF NAVIGATION PROGRAM: PRESERVING
THE LAW OF THE SEA, Elsevier Science Limited, California, United States, 1994,
pp. 1 8 1 -187.
162 Department of State Publication 112: Limits in the Seas: United States Responses
to Excessive Maritime Claims, Washington D.C., USGPO, 1992), p. 1.
163 Supra note 161 at 181.
 REVISTA DE DERECHO PUERTORRIQUE&qO [VOL. 54

rights and freedoms of the international community in navigation

64
and over flight and other related high seas uses. 1

The FON Program operates on a triple track, involving not only

diplomatic representations and operational assertions, but also bilateral
and multilateral consultations with other governments in an effort to
promote maritime stability and consistency with international law,
stressing the need for and obligation of all states to adhere to the
customary international law rules and practices reflected in the LOS
Convention.' 65 When addressing other states' specific maritime claims
that are inconsistent with international law, the US uses, as
appropriate, the various forms of diplomatic correspondence. 6 6 These
include first and third person diplomatic notes, and may 67 take the form
of formal protest notes, notes verbal and aides-memoire.'
The objective of the Freedom of Navigation Program is not just to
maintain the legal right to operate freely in and over international
waters. 168 The more important objectives are: first, to have other
nations recognize and respect the legal right of all nations to operate,
in conformity with the navigational provisions of the LOS
Convention, in and over the territorial sea and international waters;
and second, to discourage efforts by other states to transgress those
rights by making excessive maritime claims. 169 Diplomatic
170
communications alone do not always achieve these objectives.
The logic behind the FON Program elucidates its purpose of
preserving the international rule of law. It is accepted international law
and practice that, to prevent changes in or the derogation of rules of
law, states must persistently object to actions by other states that seek
to change those rules. 171 Protest must, at the very least, be repeated
and must be supported by conduct, which opposes the presentations of
the claimant State. 172 Where the claim protested against has the effect
of taking away a nation's right to use portions of the oceans, mere
preservation of ones legal right to operate there may be of little

164 Statement on United States Oceans Policy, March 10, 1983, Public Papers of
President Reagan 1983.
165 Supra note 161 at 182.
166 GIST: A Quick Reference Aid to U.S. Foreign Relations, Washington, D.C.,

Department of State, December 1986, p. 2.

167 Supra note 164.
168 Supra note 161 at 182.
169Id.

170 Id.
17
1Id.
172 _ld.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS: ...

practical value when one chooses not to operate there in all but
exceptional circumstances. 173 Avoiding areas where a country needs to
operate, or could be expected to operate, in the presence of the illegal
17 4
claim gives both a practical and legal effect to the excessive claim.
There are a variety of excessive maritime claims that the US
Freedom of Navigation Program is designed to protest. Canada, China,
Costa Rica, Portugal, North Korea, Mexico, Vietnam and others have
significant excessive baseline claims. 175 The LOSC provides for a
system of straight baselines where a coastline is deeply indented or if
there is a fringe of islands.' 76 The drawing of straight baselines must
not depart to any appreciable extent from the general direction of the
coast, and the sea areas lying within the lines must be sufficiently
closely linked to the land domain to be subject to the regime of
internal waters.1 77 The use of straight baselines can have the effect of
increasing a coastal state's territorial sea. For example, a coastal state
can draw straight baselines, which depart considerably from the
general direction of the coast. In addition to this, Cape Verde and the
Philippines have imposed restrictions on archipelagic sea-lanes
passage not contemplated by the 1982 Convention.1 78 Moreover,
Argentina, Canada, Italy, Spain and others have imposed restrictions
on straits used for international navigation. 179 Furthermore, Cape
Verde, Finland, Iran, Sweden and others have declared warships to be
80
subject to special coastal state regulation. 1
The FON Program has been particularly successful in solving the
excessive maritime claims without regard of whether the country is
friend or foe. The US has consistently objected to territorial sea claims
in excess of 12 miles. Over the past decade, more than half the
countries claiming territorial sea broader than 12 miles have rolled
these claims back to the international standard reflected in the LOS
Convention. 81 Moreover, as said before, not all coastal states have
fully accepted the right of innocent passage in the territorial sea. The
US has diplomatically and operationally asserted its rights in the
overwhelming majority of these cases. As a result of these protests, a

173 Id.at 183.

174 id.
175
1 d. at 184.
176 Article 7.
177 Id. (3).
178
Id.
179
Id.
180 Id.
I"Id. at 185.
 REVISTA DE DERECHO PUERTORRIQUE&O [VOL. 54

number of states, such as Bulgaria and Turkey, have rolled back their
claims. 82 In short, the Freedom of Navigation Program has
demonstrated to the international community the impracticality of
83
asserting excessive maritime claims. 1
The US Freedom of Navigation Program has enhanced the
capacity of warships to navigate freely through the oceans. Many of
the restrictions of innocent passage of warships through the territorial
sea have been rolled back, as in the case of Bulgaria. Moreover, the
elimination of territorial seas exceeding 12 miles allows warships to
navigate with fewer possible regulations by coastal states. As a result
of this, warships acquire more ocean space in which they can navigate
freely.
VIII. The Difficulties of Maritime Terrorism

The events of September 11, 2001 showed the world that terrorism
could have devastating consequences for the international community.
There already exist reliable intelligence information that transnational
terrorists may target ships and ports. 184 Moreover, transnational
terrorism may well take advantage of the factor space, by transporting
weapons, including weapons of mass destruction, by sea.' 85 In order to
prevent them from reaching their destination, it is necessary not only
to establish effective control mechanisms in ports, but also to interfere
with international shipping in the high seas if there is no such effective
control mechanism in the port of origin or if the flag state is unwilling
1 86
to comply with its obligations under international law.
The effective targeting of transnational terrorism on the high seas
requires an international legal basis. The LOSC Convention
recognizes the right of warships and of other state ships to take
measures against a merchant vessel, including visit and search, if 1)
the vessel is flying the same flag as the intercepting warship; 2) the
vessel is "Stateless"; 3) there are reasonable grounds for suspicion that
the vessel is engaged in a) piracy, b) slave trade, or c) unauthorized
broadcasting. 187 Accordingly, the boarding of the Sao San1 88 was

82
1 Id.
183 Id. at 186.
184 Heintschel, Wolff, CURRENT LEGAL ISSUES IN MARITIME OPERATIONS: MARITIME
INTERCEPTION OPERATIONS IN THE GLOBAL WAR ON TERRORISM, EXCLUSION
ZONES, HOSPITAL SHIPS, AND MARITIME NEUTRALITY. pp. 152-158.
185 Id.
186 d.
187 Article 110.
2014] THE RIGHT OF INNOCENT PASSAGE OF WARSHIPS: ... 115

justified according to Article 110 of the Convention, since at the time

of the interception, it could be considered stateless and because it did
89
not give satisfactory information about its origin and destination.
Hence, all measures, including visit and search (boarding, including
opposed boarding) serving the verification of the true character,
90
function, and destination of the vessel were admissible. 1
Resolution 1373'91 of the UN Security Council is relevant, since it
prohibits certain actions by states that would directly or indirectly
support transnational terrorism. It indicates that states shall, inter alia:

Prohibit their nationals or any persons and entities within their

territories from making any funds, financial assets or economic
resources or financial or other related services available, directly
or indirectly, for the benefit of persons who commit or attempt to
commit or facilitate or participate in the commission of terrorist
acts, of entities owned or controlled, directly or indirectly, by such
persons and of persons and entities acting on behalf of or at the
direction of such persons;

(a) Refrain from providing any form of support, active or passive, to

entities or persons involved in terrorist acts, including by
suppressing recruitment of members of terrorist groups and
eliminating the supply of weapons to terrorists;

(b) Take the necessary steps to prevent the commission of terrorist

acts, including by provision of early warning to other states by
exchange of information;

(c) Deny safe haven to those who finance, plan, support, or commit
terrorist acts, or provide safe havens;

(d) Prevent those who finance, plan, facilitate or commit terrorist acts
from using their respective territories for those purposes against
other states or their citizens;

(e) Ensure that any person who participates in the financing, planning,
preparation or perpetration of terrorist acts or in supporting
terrorist acts is brought to justice and ensure that, in addition to

188 On Dec. 11, 2002, the Sao San, was seized by a Spanish frigate- acting on
information from U.S. sources - 600 miles off the horn of Africa in the Indian
Ocean. The vessel was found to be carrying 15 scud missiles that were shipped from
North Korea to Yemen.
189 Supra note 184 at 155.
190 Id.
19' UN Doc. S/RES/1373 (2001), para. l(d) and para. 2(a) and (e).
 REVISTA DE DERECHO PUERTORRIQUE&O [VOL. 54

any other measures against them, such terrorist acts are established
as serious criminal offences in domestic laws and regulations and
that the punishment duly reflects the seriousness of such terrorist
acts;

(g) Prevent the movement of terrorists or terrorists groups by effective

Border controls on issuance of identity papers and travel
documents, and through measures for preventing counterfeiting,
forgery or fraudulent use of identity papers and travel documents.

The UN Security Council has made clear that international

terrorism is a threat to international peace and security that has to be
eliminated.' 9 2 If, for example, a vessel is encountered on the high seas
and is suspected of carrying international terrorists or weapons
destined to international terrorists it will not be necessary to even
inform the flag state in advance because, thus, the effectiveness of the
international efforts against international terrorism would be
jeopardized in an unacceptable way.' 93 However, the future regulation
of terrorism at sea should not be excessively strict in order to protect
the interests of nations whose economies depend on the free flow of
goods and whose security interests presuppose that their navies remain
in a position to exercise power projection whenever and wherever
necessary. 194 It would be prudent to interfere with a ship on the high
seas when there is corroborated information that the vessel is involved
in terrorist activities.
The elimination of the requirements of prior notification and/or
authorization regarding the right of innocent passage of warships
would allow these vessels to suppress maritime terrorism in a more
effective manner. These requirements have detrimental effects on the
mobility and reaction time of navies, which, for example, would need
to navigate freely and expeditiously in order to neutralize a stateless
ship carrying nuclear warheads. Thus, the requirements of prior
authorization or notification could be an obstacle in achieving the
global suppression of terrorism.

192 Id.
193, Heintschel, Wolff, THE LEGALITY OF MARITIME INTERCEPTION OPERATIONS
WITHIN THE FRAMEWORK OF OPERATION EDURING FREEDOM p. 48.
194 Supra note 184.
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IX. Conclusion

The requirements of prior authorization and notification are

inconsistent with the terms of the 1982 UN Convention of the Law of
the Sea. Article 309 of the Convention indicates the following:

No reservations or exceptions may be made to this convention

unless expressly permitted by other articles of this Convention.

Article 310 declares this,

Article 309 does not preclude a State, when signing, ratifying or

acceding to this Convention, from making declarations or
statements, however phrased or named, with a view, inter alia, to
the harmonization of its laws and regulations with the provisions
of this Convention, provided that such declarations or
statements do not purport to exclude or to modify the legal
effect of the provisions of this Convention in their application
to that State.

The general norm pacta sunt servanda in international law obliges

states to carry out in good faith their obligations arising from
treaties. 195 It is a generally recognized principle in international law
that a state cannot invoke provisions in its internal laws as an excuse
for its failure to perform its treaty obligations, which is confirmed in
the Vienna Convention on the Law of Treaties, to which many of the
countries that require prior authorization or notification are parties,
including China.1 96 These countries have the legal duty to comply with
the 1982 UN Convention on the Law of the Sea since the day they
ratified it. The LOSC does not recognize any restrictions on the right
of innocent passage of warships. Moreover, these countries cannot
utilize declarations and/or internal laws in order to eliminate the legal
effect of the provisions of the 1982 Convention. The domestic
legislation of nations that require prior authorization and/or
notification should reflect the true meaning of the LOSC, which grants
the right of innocent passage to all ships, including warships. If
nations were permitted to suppress the legal effect of international
treaties at their own discretion, the Conventions would not be applied
with uniformity and the international order would lack harmony.
The right of innocent passage of warships through the territorial
sea of a coastal state remains a problematic issue in the law of the sea.

195 Supra note 52 at 214.

19 6
Id.
 REVISTA DE DERECHO PUERTORRIQUERO [VOL. 54

The modem maritime powers intend the Convention to entail a

regulation that would not restrict the capacity of their navies to
navigate throughout the oceans without restrictions. Some other
countries, such as China, are skeptical about having warships too close
and require prior authorization and/or notification in order for these
ships to pass through their territorial sea. In spite of this debate, the
1982 UN Convention on the Law of the Sea can reasonably be
interpreted as granting warships the right of innocent passage through
the territorial sea of a coastal state. The validity of the requirements of
prior authorization or notification in any regime are not recognized
under article 310 of the 1982 Convention, since these requisites
undermine a right that is conferred by the LOSC. The right of innocent
passage should be granted in practice to all ships, since our interrelated
world needs the sea to be truly characterized by freedom of navigation.
The US Freedom of Navigation Program has been helpful in achieving
this goal. However, whether the right of innocent passage of warships
becomes widely accepted depends on further developments in the law
of the sea and the evolution of the international utilization of the
ocean.