The Rights of the Coastal State Concerning Innocent Passage (treaties and customary international law)

Articles 21, 22 and 25 of the LOSC provide rights of the coastal State with respect to
innocent passage.
First, Article 21(1) stipulates that the coastal State possesses the legislative jurisdiction
relating to innocent passage through the territorial sea, with respect to all or any of the
following:

(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f ) the preservation of the environment of the coastal State and the prevention, reduction and
control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State.
Such laws and regulations shall not apply to the design, construction, manning or equipment
of foreign ships unless they are giving effect to generally accepted international rules
or standards pursuant to Article 21(2).
Second, the coastal State is entitled to 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 by virtue
of Article 22(1). In this regard, the coastal State shall take into account: (a) the recommendations
of the competent international organisation; (b) any channels customarily used
for international navigation; (c) the special characteristics of particular ships and channels;
and (d) the density of traffic pursuant to Article 22(3). Article 22(4) places an obligation
upon the coastal State to clearly indicate such sea lanes and traffic separation schemes on
charts to which due publicity shall be given.
Third, the coastal State is entitled to take the necessary steps in its territorial sea to
prevent passage which is not innocent in conformity with Article 25(1). While this provision
does not specify the necessary steps, they could include requesting a delinquent ship to stop
certain conduct, requesting a ship to leave the territorial sea, and the intervention of State
authorities to board and exclude the ship from its territorial sea. Concerning the preservation
of the environment of the coastal State, in particular, Article 220(2) provides that
where there are clear grounds for believing that a vessel navigating in the territorial sea of a
State has violated laws and regulations of that State during its passage therein, the coastal
State may undertake physical inspection of the vessel relating to the violation, and may,
where the evidence so warrants, institute proceedings, including detention of the vessel.
In the case of ships proceeding to internal waters or a call at a port facility outside
internal waters, the coastal State has the 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 by virtue of Article 25(2). Article 25(3) further empowers the coastal State to
suspend the innocent passage of foreign vessels under five conditions:

(i) suspension must be essential for the protection of its security,
(ii) suspension must be temporal,
(iii) suspension must be limited to specific areas of its territorial sea,
(iv) suspension must be without discrimination, and
(v) suspension shall take effect only after having been duly published.
As the territorial sea is under the territorial sovereignty of the coastal State, theoretically the
coastal State may exercise criminal jurisdiction over foreign vessels passing through the
territorial sea. In order to pay due regard to the interests of navigation, however, Article 27(1)
of the LOSC provides that the criminal jurisdiction of the coastal State ‘should not’ be exercised
on board a foreign ship passing through the territorial sea, save only in the following cases:
(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.
The phrase ‘should not’ seems to suggest that the exercise of criminal jurisdiction is not
strictly prohibited in other cases. It would seem to follow that the coastal State has a
discretion with regard to the exercise of criminal jurisdiction. The restriction of criminal
jurisdiction under Article 27(1) does not apply to the case of inward/outward-bound
navigation by virtue of Article 27(2). If the master so requests, the coastal State is required
to notify a diplomatic agent or consular officer of the flag State before taking any steps
pursuant to Article 27(3). Where a crime has been committed before the ship entered the
territorial sea and the ship is only passing through the territorial sea without entering
internal waters, however, the coastal State may not exercise criminal jurisdiction over the
ship under Article 27(5). This is a mandatory prohibition on the exercise of the criminal
jurisdiction of the coastal State in the territorial sea.
Article 28 of the LOSC limits the exercise of civil jurisdiction of the coastal State in
certain cases. Under Article 28(1), ‘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’. The term ‘should not’ seems to suggest that the restriction of
the civil jurisdiction is a matter of comity. Under Article 28(2), 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. However, Article 28(2)
is not applicable to inward/outward-bound navigation by virtue of Article 28(3).

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