Ritesh Raj1

Introduction

The United States and China recently exchanged blows over the US’s warship sailing through the South China Sea, to challenge China’s prior notification rule ( “The Rule”) for any warship transiting through its territorial waters. The operation was part of the US’s Freedoms of Navigation Operations (FONOPs), which it performs to reinforce recognised international law (IL) and practice. It claims to be doing so to ensure that China’s regulation does not become an outlier to the accepted state practice.

This conflict stems from the inherent debate between third-world and Western countries. The majority of countries adopting the rule are from the third world, with their marine strength in the nascent stages of development. Hence, they claim that the rule is necessary for maintaining their sovereignty. However, western countries allege the rule to be in contravention of the UNCLOS’s provisions.

This article argues that the innocent passage of warships should be limited. To that end, the first part of the article explains innocent passage in the context of warships. The second part demonstrates why the same must be limited from a TWAIL perspective. The third part recommends how to limit the passage while balancing the interests of both worlds.

Explaining Innocent Passage in the Context of Warships

Innocent passage emerged as a necessary precondition for the existence of territorial waters. Since territorial waters extend the coastal state’s sovereignty, such passage became necessary for fostering economic and social advancement. The UNCLOS mandates the same.

Article 19(1) of the UNCLOS states that any passage through the territorial sea is innocent if it does not prejudice the peace, good order or security of the coastal state (through whose territorial sea the ship is navigating). What is prejudicial to the peace, good order or security of the coastal state is provided in clause 2 of Article 19.

Further, Article 29 exhaustively defines warships since it uses the word ‘means’ instead of ‘includes’. So, any ship which – first, belongs to a state’s armed forces; second, is under a state officer’s command; and third, is staffed by a crew that is subject to regular armed forces discipline – will come under its ambit (ammunition is not a requirement). The right of innocent passage of such ships stems from Article 17, which states that ‘all ships’ have this right.

However, as the next part demonstrates, its passage has been continually challenged.

A TWAIL Perspective

‘Third World Approach to International Law’ (TWAIL) is a network of predominantly third-world scholars, who criticise IL from a third-world perspective. TWAIL is based on the notion that current IL and related organisations are framed Eurocentrically and do not adequately reflect the concerns of the third world. They contend that practices in international organisations must be adjusted from conventional law because developing countries did not exist at the time. As a corollary to this, third-world countries claim to be battling against the establishment of a maritime hegemony of the Western naval powers. They contend that, in this situation, the innocent passage of warships must be limited. Adding on, this part will attempt to prove that there is a bias against third-world countries exemplified by an application of the UNCLOS.

EL Enyew’s seminal piece adequately established how the creation of the law of the sea favoured the euro-western countries. However, his analysis is limited to the history of UNCLOS, making no mention of how the current maritime law discriminates against the third world. This part builds upon his article by demonstrating how that bias is reflected in the UNCLOS, with special emphasis on the innocent passage of warships.

Article 19(1) defines innocent passage, stating that only if a foreign ship engages in certain activities, its passage prejudices security, peace or good order. This discounts the possibility that the ship’s sheer presence can be prejudicial. While clause 2(l) makes the list non-exhaustive, engagement remains a precondition. However, waiting for engagement leaves the coastal state with little time to intervene. Thus, given the warship’s nature, some preventive measures should be in place.  Even ships carrying nuclear weapons are granted the right of innocent passage without prior approval. Such liberal application forces third-world countries to enact rules suo moto, by adding a mere prior notification or approval requirement.

Further, Article 19(1) provides that a passage is innocent if it is “not prejudicial to the peace, good order or security of the coastal state”. Its prejudicial nature depends on the particular coastal state. It is a subjective rather than an objective determination. Thus, in assessing the prejudicial nature of the passage, the coastal state’s subjective interests must be accounted for. In this context, having a mere prior notification rule seems justified for third-world countries.

It must be noted that out of the 147 nations ranked in the Human Development Index (‘HDI’) (44 landlocked countries being excluded), 39 have prior approval/notification rules for warships (excluding Somalia, Taiwan and North Korea, which were not ranked). This also excludes nations that allow innocent passage for warships but restrict ships carrying nuclear weapons or dangerous cargo. More than 75% of these countries have a rank above 50 in the HDI, showcasing that most countries demanding a restriction on the right are from the third world and have comparatively little maritime power.

Criticising the Criticisms

Most of the criticism of this prior notification rule stems from Article 24(1)(a). It provides that the coastal state shall not impose any requirements on the sailing ship that “have the practical effect of denying or impairing the right of innocent passage”. Textually, the article emphasises the practical harm of the coastal state’s requirement. Thus, any rule without practical impairment is valid under the UNCLOS. However harsh the rule, lenient application by the respective state renders it valid. This interpretation is reached after reading the article in conjunction with the preamble, which emphasises developing countries’ specific interests.

Since all sea voyages are meticulously planned before departure, informing a coastal state of a foreign warship ‘s intended transit through its territorial waters should not impair its journey. However, the notification should be released reasonably beforehand. Currently, South Korea requires only three days’ notice before passage, while Vietnam demands approval at least 30 days before passage and an additional 48-hour pre-entry notification. Rules such as Vietnam’s will necessarily practically impair the right of innocent passage. However, rules allowing the issue of notification closer to the date of passage, such as those in South Korea, will not impair the right of innocent passage.

Critics of the prior approval/notification rule contend that the UNCLOS does not explicitly permit such rules and, therefore, it is governed by customary international law (as stated in the preamble). According to them, customary law on innocent passage requires all states to not impose any such restrictions. However, CIL is created by state practice, and as has been demonstrated, there is no consistent state practice in this domain. While developed countries reject such rules, the Asian-African countries, nonetheless, employ them.

The source hierarchy is well-established in IL. It goes treaty > custom > general legal principles. Since both treaties (the UNCLOS) and customary law have failed, general legal principles can be applied to resolve the conflict.

The UNCLOS’s preamble lays forth the broad principles that govern maritime law. A perusal of the same indicates that a major goal of UNCLOS was to promote the economic and social well-being of all, particularly developing countries. As per this principle, the developing countries’ customary law should be favoured. Further, even considering the limitations of the UNCLOS, a prior notification rule does not violate any country’s interests (as demonstrated above).

Recommendations- Balancing the Best of Both Worlds

UNCLOS’s preamble lays down that sea-related issues must be considered holistically. Further, the UN Charter emphasises the employment of international machinery to achieve the social advancement of all. This part of the article uses these two provisions to argue that only international bodies like the UNCLOS can solve the issue.

The preceding portions have sufficiently argued for limiting the innocent passage of warships. However, TWAIL fails to provide a solution. Further, all solutions should also be looked at from the developing countries’ perspective, since the deployment of these solutions is primarily reliant on their will. Thus, the limitation of the innocent passage of warships must be addressed by a higher body capable of balancing both interests. This portion makes suggestions for the regulation of rules limiting the innocent passage of warships that the UNCLOS can follow.

First, the innocent passage of warships should be limited through rules and regulations. These are not limited to prior approval/notification requirements but can also include limitations such as a coastal state’s surveillance of a ship’s movement, etc.

Second, Article 29’s definition of warship should be limited to ships whose very nature is prejudicial. Presently, the definition is excessively wide (see here), resulting in detriment to the interests of both worlds. A precondition of ammunition would sufficiently narrow down the definition. For reference, the Maldives’ definition of warship requires weaponry on board, which can be used to engage in warfare. This limits the scope of the prior approval/notification rules for those vessels, which can seriously undermine the coastal state’s sovereignty.

Defining warships narrowly could aid in balancing the interests of both worlds. Consider the example given in the introduction; the US Navy’s FONOPs do not carry any firearms and, thus, would not be subject to prior approval/notification requirements. Further, the coastal state would feel more secure knowing that only a limited number of armed ships transit through its waters. This addresses their security concerns without impeding the fleet state’s right of innocent passage.

With regard to the prior approval/notification rule, the UNCLOS may publish a directory report at regular intervals categorising countries into three groups. First, countries requiring prior authorisation. Second, countries requiring prior notification. Third, countries having no limitations. These directories will not impose any obligation upon the coastal state and will be solely advisory. Thus, following the UNCLOS principle of giving discretion to coastal states. Further, it renders moot criticism against the use of prior approval by coastal states as the report will be published on consensus. Furthermore, since the consensus is achieved internationally, it does not violate the coastal state’s duty of non-discrimination against ships of a particular state (UNCLOS, Art. 24).

Conclusion

Though this paper highlighted the need for limiting the innocent passage only in the context of warships, a similar case can be made for ‘ships carrying nuclear weapons’ as well (UNCLOS, Art. 23). It can be concluded that despite repetitive criticisms from developed countries, limitations imposed by coastal states are going nowhere. It is high time for international bodies to acknowledge such limitations as lawful under UNCLOS and ensure uniformity in their application. When drafting such regulations, the preceding section’s recommendations should be taken into account.

  1. Ritesh Raj is second year B.A. LL.B. (Hons.) student at NLSIU, Bangalore. ↩︎