The right of innocent passage through the territorial sea is based on the freedom of navigation as an essential means to accomplish freedom of trade. In his book published in 1758, Emer de Vattel had already accepted the existence of such a right. Subsequently, in the Twee Gebroeders case of 1801, Lord Stowell ruled that: ‘[T]he act of inoffensively passing over such portions of water, without any violence committed there, is not considered as any violation of territory belonging to a neutral state – permission is not usually required.' It may be considered that the right of innocent passage became established in the middle of the nineteenth century. In this regard, the Report Adopted by the Committee on 10 April 1930 at the Hague Conference for the Codification of International Law clearly stated:This sovereignty [over the territorial sea] is, however, limited by conditions established by international law; indeed, it is precisely because the freedom of navigation is of such great importance to all States that the right of innocent passage through the territorial sea has been generally recognised. At the treaty level, the right of innocent passage was, for the first time, codified in Article 14(1) of the TSC. This provision was followed by Article 17 of the LOSC, which provides:Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.It is important to note that the right of innocent passage does not comprise the freedom of overflight.Under Article 18(1) of the LOSC, innocent passage comprises lateral passage and inward/outward-bound passage. Lateral passage is the passage traversing the territorial sea without entering internal waters or calling at a roadstead or port facility outside internal waters. Inward/outward-bound passage concerns the passage proceeding to or from internal waters or a call at such roadstead or port facility. As will be seen, the direction of the passage is at issue in relation to the criminal jurisdiction of coastal States over vessels of foreign States in the territorial sea. The LOSC contains several rules concerning the manner of innocent passage through the territorial sea.First, passage shall be continuous and expeditious. This means that ships are required to proceed with due speed, having regard to safety and other relevant factors. Under Article 18(2), passage includes stopping and anchoring 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 providing assistance to persons, ships or aircraft in danger or distress.Accordingly, the act of hovering by a foreign vessel is not normally considered innocent passage.Second, in the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag pursuant to Article 20. This provision follows essentially from Article 14(6) of the TSC. In this respect, the question arises as to whether a breach of the requirement to navigate on the surface can be the negation of the right of innocent passage. While…
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