University of Dhaka

Course Name: Law of the Sea

Course Code: 402

Assignment on: Innocent Passage with Relevant Case Study under

International Law

Submitted by

Sagar Chandra Paul

Roll: JN-03

7th Semester, 4th year

Department of International Relations

University of Dhaka

Submitted to

Dr. Md. Sazzad Hossain

Associate Professor

Department of International Relations

University of Dhaka

Submission Date: 2nd January, 2021

Introduction

The innocent passage has been codified in the United Nations Convention on the Law of the Sea
(UNCLOS III) was adopted in 1982  , it is also known as the Law of the Sea Treaty . Its purpose
is to establish a comprehensive set of rules governing the oceans and to replace previous U.N.
Conventions on the Law of the Sea, 1958 (UNCLOS I) which was adopted in 1958 and another
in 1960 (UNCLOS II), since these two convention were believed to be inadequate. The term
Innocent Passage is defined under international law referring to a ship or aircraft’s right to enter
and pass through another’s territory so long as it is not prejudicial to the peace, good order or
security of the other state. Under Article 19 of the UNCLOS III it is defined “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. The right of innocent passage of foreign ships through the territorial waters of a coastal state
is one of the oldest and most universally recognized rules of public international law.

Meaning of Passage is defined under Article 18 of the UNCLOS III.

1. Passage means 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.

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

The right of innocent passage is governed by articles 17 to 32 of the Law of the Sea Convention.
This right constitutes an integral part of the territorial sea regime and is a well-established rule of
international law.  However, from the time of its infancy; this rule has been accompanied by a
constant and heated controversy between states, concerning its scope of application, legal effect
and inherent implication. The point causing most of the controversial debate and even
international disputes relates to the innocent passage of warships. Both the 1958 Geneva
Convention and the 1982 Law of the Sea Convention contain nearly identical provisions under
the same subsection titles regarding innocent passage.

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 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; any exercise or practice with weapons of any kind; any act aimed at collecting
information to the prejudice of the defense or security of the coastal State; any act of propaganda
aimed at affecting the defense or security of the coastal State; the launching, landing or taking on
board of any aircraft; the launching, landing or taking on board of any military device; 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; any act of willful and serious
pollution contrary to this Convention; any fishing activities; the carrying out of research or
survey activities; any act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State; any other activity not having a direct bearing on
passage.

Concept of Innocent Passage under International Law

Innocent passage is as old as the law of the sea itself and is a normal consequence of freedom of
navigation; the doctrine was elaborated in Article 14 of the convention on the law of the sea
1958, which emphasized that that the coastal state must not hamper innocent passage and must
publicize any dangers to navigation in territorial sea of which it is aware. Passage is defined as
navigation through the territorial sea for the purpose of crossing that sea without entering internal
waters or of proceeding to or from internal waters. It may include temporary stoppages, but only
if they are incidental to ordinary navigation or necessitated by distress or force majeure. it was
practiced by maritime powers throughout the centuries with such consistency, and was affirmed
by Jessup in 1927 that “As a general principle, the right of innocent passage requires no
supporting argument or citation of authority; it is firmly established in international law.”
“Innocent passage” must be interpreted and applied in the light of national law which has been
implemented by the coastal state. Every coastal state can adopt laws regarding the safety of
navigation, laying of submarine cables, resources, fishing, environmental protection, scientific
research, prevention of infringement of customs, fiscal, immigration, or sanitary laws and
prevention of pollution as well as implement sea lanes and traffic separation schemes or suspend
temporarily the right of innocent passage in specified areas of its territorial sea, subject only to
the restriction that any such measures must be in conformity with the Convention and
international law relating to “innocent passage” .

How one can decide that the passage is innocent or not? Passage is declared to be 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  .
Under Article 17 of the UNCLOS III Right of Innocent Passage is defined “Subject to this
Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent
passage through the territorial sea”, and Passage is defined under Article 18.

1. Passage means 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.

2. Passage shall be continuous and expeditious. However, passage includes stopping and
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.
Article 19 defines Innocent Passage “Passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal State.” When any foreign ship do not abide by the
rules are considered to be violators’ and causes prejudice to the Coastal State Passage of a
foreign ship shall be considered to be prejudicial to the peace, good order or security of the
coastal State  . The meaning of “innocent” is a little more difficult to appreciate. The
International Court was faced with the problem in the Corfu Channel case. This case arose from
incidents that occurred on October 22nd 1946, in the Corfu Strait two British destroyers struck
mines in Albanian waters and suffered damage, including serious loss of life. The channel they
were following, which was in Albanian waters, was regarded as safe. An incident had already
occurred in these waters on May 15th, 1946: an Albanian battery had fired in the direction of two
British cruisers. The United Kingdom Government had protested, stating that innocent passage
through straits is a right recognized by international law; the Albanian Government had replied
that foreign warships and merchant vessels had no right to pass through Albanian territorial
waters without prior authorization.

The Court clarified a point on which there had been considerable difference of opinion; the Court
held that it was not the character of the ship which was the determining factor, but rather the
character of the passage itself. In the words of the Court, the question to consider is “whether the
manner in which the passage was carried out was consistent with the principle of innocent
passage.” The Court was satisfied that the passage was innocent. The evidence showed “that the
ships were not proceeding in combat formation, but in line, one after the other, and that they
were not maneuvering until after the first explosion. With respect to the second passage on
November 12 and 13, the United Kingdom government itself recognized that it was not mere
innocent passage the mine clearing operation was carried out against Albania’s ex press
objection and “under the protection of an important covering force composed of an aircraft
carrier, cruisers and other war vessels. The 1958 Convention expressed the principle underlying
the Corfu Channel decision, namely that “passage is innocent so long as it is not prejudicial to
the peace, good order or security of the coastal State  “. the Corfu Channel judgment can be of
considerable assistance in reaching a decision; whether a particular passage has been proved to
be prejudicial to the protected rights of the coastal state.

It would seem that passage is to be presumed innocent until shown otherwise  . This is the view
of Leo Gross who maintains that “the text as adopted clearly puts the burden on the coastal state
to show that the passage itself rather than the passage of a particular ship, its purpose or cargo,
was prejudicial to the stated values of the coastal state. Considering this heavy burden, the
coastal state must be in a position to secure the necessary evidence when an offensive passage
does occur  .

Right of Innocent Passage

The right of innocent passage of foreign ships through the territorial waters of a coastal state is
one of the oldest and most universally recognized rules of public international law. Article 17 of
the Geneva Convention on the Law of the Sea 1958 provided that ships exercising the right of
innocent passage were to comply with the laws and regulations enacted by coastal state, in
particular those relating to transport and navigation. This was developed in article 21(1) of the
1982 Convention, it provided with several laws and regulations concerning innocent passage as
have been dealt earlier in detail.

Jessup in his book on territorial waters has remarked that, as a general principle, the right of
innocent passage requires no supporting argument or citation of authority; it is firmly established
in international law. Grotius considered the right of innocent passage related to the “most
specific and unimpeachable axiom of the Law of Nations, called a primary rule or first principle,
the spirit of which is self-evident and immutable, to wit : Every nation is free to travel to every
other nation and to trade with it. The right of innocent passage is premised on the general right of
freedom of navigation in international waters. Grotius was disposed to claim this right as an
adjunct of the right to trade.

The very term “innocent passage” implies two prerequisites for its exercise :

(a) that passage be “innocent,” i.e., not of such a nature as to affect the security or welfare of the coastal
state; and

(b) that “passage” only may be exercised, to the exclusion of such acts as “hovering” or anchoring in
the territorial seas.

One of the Scholars states that the purpose of this right “lies in the fact that the whole world has
a legitimate and necessary interest in being able to use the seas for the purposes of normal
intercourse. ‘Passage’ is a word of motion, and in its proper use it signifies continuous
movement from one place to another. It does not imply any right to remain at rest on the track or
to use it for any other purpose than that of transit. Innocent passage derogates from the authority
and sovereignty which the coastal state exercises over its territorial seas. Even those disposed to
grant the coastal state full sovereignty over its territorial waters do not claim that its sovereignty
is absolute. The essential question is: to what extent is the right of innocent passage an
independent right, on parity with that of the sovereignty of the coastal state; and to what extent
should it be deemed a subordinate right, perhaps even a grant, of the coastal state? The concept
of “innocent passage seems to be the result of an attempt to reconcile the freedom of ocean
navigation with the theory of territorial waters. Many writers maintain that the coastal state
exercises sovereignty; on the other hand, a minority deny the territorial character of the maritime
belt and concede that littoral states works only in the interest of the safety of the coast, certain
powers of control, jurisdiction, police, etc., but not sovereignty.

The 1958 Territorial Sea Convention determines that passage is innocent if it is not prejudicial
to the peace, good order or security of the coastal State. The Convention mentioned two
activities that were dissociated from the character of innocence. The passage of foreign fishing
vessels was not considered innocent if vessels did not observe coastal State laws and
regulations. Laws and regulations made and published by coastal States had generally been
created with the intention of preventing vessels from fishing in territorial sea areas. The second
exception to the rule was that submarines had to navigate on the surface and display their
national flag. Otherwise, legal competence was left to the broad jurisdiction of the coastal States
in question when determining whether passage was innocent or not.
The situation concerning the concept of innocence changed in 1982 after the UN Law of the Sea
Convention was adopted. UNCLOS includes more specific definitions concerning innocent passage. In
Article 19(2), a list of activities that are considered prejudicial to the peace, good order or security of the
coastal State are mentioned as follows:

1. 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.
2. 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;
(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 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;
(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.

However, the list is not a comprehensive one because the last item forbids any other activity
that is not actually relevant to passage. Nonetheless, any activity that has no direct bearing on
passage will not automatically render passage non-innocent.

The list focuses on vessels’ activities and therefore suggests that the nature of a vessel is not
sufficient grounds for considering passage non-innocent. In addition, Article 23 goes further
and sets obligations for foreign nuclear-powered vessels and vessels carrying nuclear or other
inherently dangerous or noxious substances when they are exercising the right of innocent
passage through the territorial sea. Consequently, UNCLOS does not prohibit the shipment of
WMDs or related materials. Article 23 of the Convention only obliges foreign nuclear-powered
vessels and vessels carrying nuclear or other inherently dangerous or noxious substances to
carry certain documents and to observe special precautionary measures established for such
vessels by international agreements when they are exercising the right of innocent passage
through territorial seas. Article 23 clearly limits the authority of coastal States as they take into
account certain issues related to nuclear-powered vessels and vessels carrying nuclear materials
when a decision must be made in relation to whether passage is deemed to be innocent or not.
This provision indicates that the nature of the vessel or its cargo does not influence the right of
innocent passage as long as it carries with it the appropriate documents and conforms to
precautionary measures established by international law. However, as the So San case shows, it
is highly probable that a ship involved in the illicit trafficking of WMD materials will not carry
documents required by Article 23, nor will it observe precautionary measures. But the coastal
State has the right of non-flag enforcement only if a ship carrying WMDs or related materials
engages such activities that render its passage non-innocent. Writers have raised the question of
whether the illicit trafficking of WMDs and related materials through the territorial seas can be
deemed non-innocent.

Some writers have suggested that the mere passage of a ship carrying illicitly WMDs is a
violation of the right of innocent passage. Lehrman states that although the list in Article 19(2)
does not explicitly refer to trafficking in WMDs or related materials as prejudicial to the peace,
it does not foreclose such an interpretation. Kaye argues that ‘Clearly the delivery of WMD to
terrorists may well be highly prejudicial to the peace, good order and security of a coastal State,
an argument could be made that such a passage is therefore not innocent, and the restrictions on
coastal State authority over the passing vessel are removed’. Further, Churchill and Lowe claim
that activities seen as posing a threat of force affect third States, as well as coastal States.
Because a coastal State’s security is seen by Churchill and Lowe as being indirectly linked to a
third State’s welfare, they also believe that there is no need for links to other legal instruments,
such as a mutual defense treaty, when aiming to render threats as incompatible with innocent
passage. Thus, paragraph 2 may be interpreted in such a way as to allow coastal States to act on
the impression that a third State’s security is at stake. Further, Joyner holds the view that the
wording of Article 19 (2)(a) is wide enough to include a threat of force against a third State.

Ronzitti has an opposing view, arguing that a ship entering territorial sea at one point from the
high seas and leaving at another without any intention to enter internal waters or stop at any port
does not violate the right of innocent passage. Similarly, Garvey argues that the mere shipment
of WMD materials does not constitute a threat to the coastal State. In addition, Logan states that
the shipment of WMD materials does not fit within any of the exceptions listed in Article 19.
Logan believes that it would be difficult, first, to prove that the shipping of WMD and related
materials constituted a threat of force against the coastal State because 95 percent of the
materials for WMDs are dual use in nature. Second, it would also be difficult to prove that the
shipping of WMD materials threatened the coastal State’s sovereignty, territorial integrity or
political independence and that the WMD materials were going to be used against that particular
State. Third, a violation of the UN Charter requires that the threat or use of force is made in the
territorial sea, and thus a coastal State cannot rely on the future use of the WMDs because the
use is unlikely to take place in the territorial sea.

The provisions of the 1982 UN Law of the Sea Convention are more detailed than the simple
definitions provided in the 1958 Territorial Sea Convention. It seems obvious that the aim of the
1982 UN Law of the Sea Convention was to produce a more objective definition that would
leave coastal States less scope for interpretation, as well as less potential to abuse their rights
when suspending non-innocent passage. Within the 1982 UN Law of the Sea Convention text,
there are particular references made to activities. Therefore, a vessel’s presence or passage
alone cannot be interpreted as prejudicial to coastal State interests if the vessel does not engage
in some specific actions. Thus, the formulation of the provision regulating innocent passage
would narrow the scope of the right of innocent passage by adding the illicit trafficking of
WMDs and related materials and their delivery systems to the activities that are prejudicial to
the peace, good order or security of the coastal State.

The United States and the former Soviet Union signed the bilateral Treaty on the Uniform Interpretation
of Norms of International Law Governing Innocent Passage in 1989. Paragraph 3 of this Treaty states
the following:

Article 19 of the Convention of 1982 sets out in paragraph 2 an exhaustive list of

activities that would render passage innocent. A ship passing through the territorial sea
that does not engage in any of those activities is in innocent passage.

The Uniform Interpretation does not leave an understanding of innocence open to interpretation.
Both States are notable maritime powers, and their interpretation was influential at the time of
the agreement. It is noteworthy that these States referred to the 1982 UN Law of the Sea
Convention. Their common objectives were obviously to contribute to State practice and to
promote their own interpretation in the future evolution of customary international law. The
Uniform Interpretation was signed on September 1989, at which time the former Soviet Union
had signed the 1982 UN Law of the Sea Convention, but the United States had not. However,
the former Soviet Union had not ratified the 1982 Convention, and the Convention had not
entered into force. The Uniform Interpretation made between the two States is binding upon the
two States parties to it but not applicable to third party States. However, the provisions included
in the bilateral treaty may become binding on third party States if they become norms of
customary international law. The restrictive interpretation of the article was created with the
best interests of maritime powers in mind because it limits the discretion of a coastal State and
thus benefits foreign navies navigating the world’s oceans. Although the United States and the
Soviet Union considered the list a comprehensive one, in fact it included the phrase ‘any other
activity not having a direct bearing on passage’, which left some scope for further interpretation
by coastal States with regard to the nature of passage. 87 At the time they did not see non-State
actors as possible users of WMDs, and therefore there is a strong possibility that the Uniform
Interpretation is not intended to restrict the interpretation of Article 19(2) in the case of the
illicit trafficking of WMDs and related materials and their devices.

Writers’ differing opinions regarding the activity making the passage non-innocent illustrate
that there is a need to discuss the balance of new modes of threats to coastal States and maritime
security caused by non-State actors and the freedom of navigation for merchant vessels that has
been historically linked to world interests.

However, although the list is considered non-exhaustive, any activity that has no direct bearing
on passage will not automatically render passage non-innocent. Instead, coastal States have to
provide evidence of activities that are deemed prejudicial to coastal States’ peace, good order or
security. A coastal State has to acquire solid intelligence proving that WMD materials were
being shipped on the territorial sea.

Sovereignty and Jurisdiction of Coastal States

Aside from territorial sea claims, States are primarily concerned about the rights of access and
resource exploitation within their territorial waters. The most important topics concerning
legislative jurisdiction have been navigation, customs, fishing, sanitation and security. Oceans
have always served as the most convenient highway for launching attacks, and because of this,
coastal State security interests are grounded by a crucial understanding that territorial seas
provide important routes to follow when reaching shores. Coastal State claims to authority over
territorial sea areas are commonly described as an assertion of sovereignty over a part of coastal
State’s land territory.

Sovereignty includes territorial sea claims made by States as they seek to control access to their
waters. In aiming to secure comprehensive and continuous authority to deny passage through
their territorial seas, the focus of coastal States has mainly centred upon the concept of innocent
passage. Moreover, States have sought a number of claims that have included occasional
exclusive competence to deny passage in regard to specific cases, a right to prescribe policy for
territorial sea cases, a right to prescribe and apply policies to solve problems aboard vessels and
a right to the exclusive appropriation of resources.

Sovereignty over territorial sea areas grants coastal States the following rights:
 Coastal States have an exclusive right to fish and to exploit the resources of the seabed and subsoil.
 They have exclusive enjoyment of the air space above the territorial sea area as foreign aircraft does not
enjoy the same rights of innocent passage as foreign vessels do.
 A coastal State has an exclusive right to transport goods and passengers from one part of its territory to
another part.
 During times of war when a coastal State is neutral, belligerent States are not allowed to engage in
combat, or capture merchant vessels, within the coastal State’s territorial sea.
 Foreign vessels must obey regulations concerning navigation, health, customs duties and immigration
that are enacted by a coastal State.

In addition to these rights, a coastal State has both civil and criminal jurisdiction over merchant
vessels exercising the right of innocent passage, as well as persons on board such vessels.
Regarding warships, however, a coastal State does not have this kind of jurisdiction and may
only demand that the warship leave its territorial sea if it does not comply with persistent
requests to adhere to coastal State regulations.

The Statement of Interdiction Principles says that the PSI activities will not violate international law.
However, subparagraph 4 (d) of the Statement of Interdiction Principles calls participants to take
appropriate actions to do the following:
1. (1)
stop and/or search in their internal waters, territorial seas or contiguous zones (when declared) vessels
that are reasonably suspected of carrying such cargoes to or from States or non-State actors of
proliferation concern and to seize such cargoes that are identified; and
 
2. (2)
to enforce conditions on vessels entering or leaving their ports, internal waters or territorial seas that are
reasonably suspected of carrying such cargoes, such as requiring that such vessels be subject to
boarding, search and seizure of such cargoes prior to entry.
 

The requirement in subparagraph 4 (d) (1) is problematic because although coastal States have
sovereignty over their territorial seas, it is limited by the right of innocent passage of foreign
vessels. A coastal State may not hamper the passage of foreign ships through the State’s
territorial sea if not being prejudicial to the peace, good order or security of the coastal State.
Instead, if the interdiction of a ship under a flag different from the coastal State takes place in
the internal waters by the coastal State authorities, the act is in accordance with the law of the
sea.

However, in the territorial sea, the right of innocent passage makes the situation complicated. Regarding
the coastal State’s legislative competences, the 1982 UN Law of the Sea Convention contains specific
provisions relating to innocent passage. According to Article 21 (1):
[a] a coastal State may adopt laws and regulations, in conformity with the provisions of this Convention
and other rules of international law, relating to innocent passage through the territorial sea, in respect of
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.

In addition, coastal States must give due publicity to their laws. Moreover, such laws may not
affect the design, construction, manning or equipment of foreign vessels unless they conform to
generally accepted international standards.

Article 21 limits a coastal State’s prior legislative competences and therefore provides a
jurisdictional compromise between coastal State and flag State interests. Instead, the article
grants coastal States certain legislative competences but eliminates the risk of divergent design,
construction, manning and equipment standards that might be hard to accommodate when
vessels set out on voyage. Foreign vessels have to comply with coastal State laws that are
enacted analogously with the Convention. Furthermore, in accordance with Article 21(4),
‘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’. It is irrelevant whether a flag or coastal State is party to
conventions containing such regulations.

Article 21 contains an exhaustive list that clearly restricts the matters that a coastal State may
regulate. Thus, a coastal State cannot draw any authorization from Article 21 to implement the
PSI unless the coastal State is the destination of the illegal shipment of WMD materials.

Case Study

There is the classic case in the right of innocent passage and the case concerning Right of
Passage over Indian Territory (Portugal v. India)  ; was referred to the Court by an Application
filed on 22 December 1955. In that Application, the Government of Portugal stated that its
territory in the Indian Peninsula included two enclaves surrounded by the Territory of India,
Dadra and Nagar-Aveli. It was in respect of the communications between those enclaves and the
coastal district of Daman, and between each other, that the question arose of a right of passage in
favour of Portugal through Indian Territory and of a correlative obligation binding upon India.
The Application stated that in July 1954 the Government of India prevented Portugal from
exercising that right of passage and that Portugal was thus placed in a position in which it
became impossible for it to exercise its rights of sovereignty over the enclaves.

The Court referred to the submissions filed by Portugal which in the first place requested the
Court to adjudge and declare that a right of passage was possessed by Portugal and must be
respected by India; this right was invoked by Portugal only to the extent necessary for the
exercise of its sovereignty over the enclaves, and it was not contended that passage was
accompanied by any immunity and made clear that such passage remained subject to the
regulation and control of India, which must be exercised in good faith, India being under an
obligation not to prevent the transit necessary for the exercise of Portuguese sovereignty.

In its Judgment the Court held that, Portugal had in 1954 a right of passage over intervening
Indian territory between the enclaves of Dadra and Nagar-Aveli and the coastal district of Daman
and between these enclaves, to the extent necessary for the exercise of Portuguese sovereignty
over the enclaves and subject to the regulation and control of India, in respect of private persons,
civil of officials and goods in general, the Court also mentioned that that Portugal did not have
right of passage in respect of armed forces, armed police and arms and ammunition. Most
importantly also pointed out that India had not acted contrary to its obligations resulting from
Portugal’s right of passage in respect of private persons, civil officials and goods in general.

A right of passage in respect of private persons, civil officials and goods in general, and not be
prejudicial to the peace, good order or security of the coastal States are considered to be
innocent.

Concluding Observations
Boarding a foreign ship without permission or other authorization is in contravention of
international law. This kind of activity on the territorial waters of the Åland Islands by the
Finnish military authorities, when directed at governmental ships or civilian ships believed to be
carrying WMD or related materials, could be interpreted to be against the provisions of the
treaty arrangements that demilitarize the sea area around the Åland Islands.

Participants of the PSI are committed to taking appropriate actions to stop and/or search, in their
internal waters, territorial seas or contiguous zones, vessels that are reasonably suspected of
carrying cargoes of WMDs, their delivery systems or related materials to or from States or non-
State actors of proliferation concern and to seize such cargoes that are identified. The State
always has a right to take interdiction operations against its own vessels. However, in the
demilitarized zone of the Åland Islands, this might be problematic, even against ships flying the
Finnish flag.

The 3-nautical-mile demilitarized sea area around the Åland Islands belongs to Finland’s
internal waters and territorial sea. Thus, Finland’s authority to regulate innocent passage
through the Åland Islands’ territorial sea depends on the current legal framework. In the
territorial sea, the enforcement of the requirements of the PSI rests on the interpretation of
Article 19 (2) of UNCLOS. In spite of claims for an independent nature of the right of innocent
passage, coastal States have the authority to prevent passage that is not innocent and to adopt
new laws and regulations relating to passage. Taking into consideration the objective and
purpose of demilitarization and neutralization, the Åland Islands’ surrounding sea areas might
differ from other sea areas when it comes to the nature of peace, good order or security. When
discussing the territorial waters of the Åland Islands, therefore, one should always bear in mind
the interests of the wider group of countries and not just Finland. In a case concerning the illicit
trafficking of WMDs and related materials through the demilitarized territorial sea area where
there is solid intelligence that the intentions are threatening a party to the 1921 Åland
Convention, the shipment would pose a threat of force that is not in accordance with the
Convention’s aim and purpose. When the passage through the territorial waters of the Åland
Islands is rendered non-innocent, any enforcement measures undertaken must meet the
provisions of the 1921 Åland Convention.

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Andreev, E. P., Blishchenko, I. P., & Gureev, S. A. (1988). The international law of the sea. Progress
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Barrett, J. M., & Barnes, R. (2017). Law of the sea: Unclos as a living treaty. The British Institute of
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