10 The right of innocent passage also applies to archipelagic waters, but it can be subject to temporary published suspensions for the protection of coastal State security. The right of innocent passage applies to straits used for international navigation in accordance with the LOSC and cannot be suspended even when a situation of armed conflict exists. This principle of customary international law is also reflected in the “duty to render assistance” described in Article 98 of the LOSC. The right of assistance entry permits entry into the territorial sea by ships or, under certain circumstances, aircraft without permission of the coastal State for the limited purposes of rescue or assistance. 7Īn exception to the authority to deny innocent passage to aircraft exists within the limited context of the “right of assistance entry” 8 based on the long-recognized duty of mariners to render immediate rescue assistance to those in danger or distress at sea. Aircraft in flight are not entitled to innocent passage and thus aircraft must remain onboard vessels during innocent passage. 6 It is important to note that the right of innocent passage only applies to foreign vessels. Submarines and underwater vehicles conducting innocent passage must navigate on the surface and show their flag. 5Īrticle 19 of the LOSC declares that passage is “innocent” so long as it is not prejudicial to the peace, good order, or security of the coastal State and further outlines a list of 12 activities that are considered “prejudicial.” This list effectively precludes a range of military operations, including practicing or exercising weapons collecting information to the prejudice of the coastal State launching, landing or taking on board any aircraft or military device and jamming coastal State communications. The right of innocent passage for foreign vessels within the territorial sea of a coastal State is defined as “navigation through the territorial sea for the purpose of (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters or (b) proceeding to or from internal waters or a call at such roadstead or port facility.” Passage must be “continuous and expeditious,” but it may include stopping and anchoring when incidental to ordinary navigation or rendered necessary by unusual circumstances. Freedom of Navigation Program, which is designed to challenge unlawful limitations imposed by coastal States in some of the most hotly contested waters around the globe. The right of archipelagic sea lanes passage for ships and aircraft is also part of the freedom of navigation framework within the LOSC, but it will not be addressed in depth here. It then outlines the legal definition of transit passage through international straits and discusses the relevant articles of the LOSC regarding transit passage. This chapter analyzes the legal definition of innocent passage by vessels through territorial waters and discusses the relevant articles of the LOSC regarding innocent passage. is not a party to the LOSC, but it considers the provisions of the Convention relating to the high seas and navigation rights to be a reflection of the customary international law that is binding on all States. commerce and military operations central to U.S. This chapter focuses on the application of the broad principles of freedom of the high seas and navigation rights, as outlined in the LOSC, within specific situations that permit coastal States to impose some limitations on freedom of navigation including “innocent passage” and “transit passage.” 3 These rights are critical to U.S. Obama, Address to the People of Vietnam, Introduction “As we go forward, the United States will continue to fly, sail, and operate wherever international law allows, and we will support the right of all countries to do the same.” 2
Roosevelt, Fireside Chat, September 11, 1941 falls the duty of maintaining the American policy of freedom of the seas, now.” 1
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