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LAW OF THE SEA
ASSIGNMENT ON
RIGHT OF PASSAGE IN TERRITORIAL
WATERS
Submitted by:
ANNIE MAMPILLY
BBA LL.B (HONS)
SEMESTER VIII
ROLL NO.07
SCHOOL OF LEGAL STUDIES
CUSAT
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TABLE OF CONTENTS
______________________________________________________________Page No.
INTRODUCTION.. 4
RIGHT TO PASSAGE AND ITS CODIFICATION..5
RIGHT TO PASSAGE UNDER UNCLOS1982: A WORMS EYE VIEW6
UNCLOS 1982: A BIRDS EYE VIEW..8-19
A. RULES APPLICABLE TO ALL SHIPS.8-15THE CONCEPT OF PASSAGE.8
INNOCENT PASSAGE.9
POWERS OF COASTAL STATE IN RELATION TO INNOCENT
PASSAGE. 11
SEA LANES AND TRAFFIC SEPARATION SCHEMES IN THE
TERRITORIAL SEA12
DUTIES OF VESSELS ENJOYING NAVIGATIONAL RIGHTS IN
TERRITORIAL WATERS13
DUTIES OF COASTAL STATE..14
RIGHTS OF PROTECTION OF THE COASTAL STATE.14
CHARGES WHICH MAY BE LEVIED UPON FOREIGN SHIPS...15
B. RULES APPLICABLE TO MERCHANT SHIPS AND GOVERNMENTSHIPS OPERATED FOR COMMERCIAL PURPOSES15-17
CRIMINAL JURISDICTION ON BOARD A FOREIGN SHIP.16
CIVIL JURISDICTION IN RELATION TO FOREIGN SHIPS.17
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C. RULES APPLICABLE TO WARSHIPS AND OTHER GOVERNMENTSHIPS OPERATED FOR NON-COMMERCIAL PURPOSES.18-19
WHAT IS A WARSHIP?...................................................................................18
WHAT WILL HAPPEN IF A WARSHIP ACTS DETORGATORY TO THE
COASTAL STATE REGULATIONS?..............................................................18
FLAG STATE RESPONSIBILITY FOR DAMAGES CAUSED BY WARSHIP
OR OTHER GOVERNMENT SHIPS19
IMMUNITIES OF WARSHIPS AND OTHER GOVERNMENT SHIPS
OPERATED FOR NON-COMMERCIAL PURPOSES.19
RELEVANT PRECEDENTS.20-23
CORFU CHANNEL CASE..20
S.S. LOTUS CASE ...21
MASSIMILANO LATORRE v. UNION OF INDIA.22
THE QUEEN v. CARR AND WILSON.22
INDIAN SCENARIO24
CONCLUSION ..25
REFERNCE ...27
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INTRODUCTION
The facet of territory in the concept of Statehood includes islands, islets,
rocks and reefs.1 It is composed (ab inferos et usque ad sidera) by land territory
(mainland) and its subsoil, internal waters and their soil and subsoil, and column of
air (the aerial or atmospheric space). These spaces constitute the states territory
strictly speaking.2
The water bodies are indeed a pertinent factor for Statehood. Just as we have
laws for land mass, we also have laws governing territorial waters in the
International platform. This assignment makes a meticulous analysis on the Right to
passage in territorial waters. The said topic is well explicated with reference to the
International instruments such as the UN Conventions of the Law of the Sea, the
position in the Indian scenario and the national legislations. The relevant precedents
of the Indian and International Courts are also referred here.
1Beagle Channel Arbitration, 18 Apr.1977, Disposition of the Decision; Red Sea Islands Case, Phase One,
Award of 9th October 1998; ILR 114, 2, Dispositif at139-9; Quatarv.Baharin, Judgement of 16 March 2001,
paras.200-9
2 Ian Brownlie, Principles of Public International Law, (Seventh Edition 2008)
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RIGHT TO PASSAGE AND ITS CODIFICATION
Department of Defense Dictionary of Military and Associated Terms defines
innocent passage as the right of all ships to engage in continuous and expeditious
surface passage through the territorial sea and archipelagic waters of foreign coastal
states in a manner not prejudicial to its peace, good order, or security. Passage
includes stopping and anchoring, but only if incidental to ordinary navigation or
necessary by force majeure or distress, or for the purpose of rendering assistance to
persons, ships, or aircraft in danger or distress.
So, right to innocent passage can only be exercised on that part of the sea
which has sovereign power on it by any nation. This right cannot be exercised on the
high sea because of the lack of power or claim over that part by any nation. The true
reason for the granting of the right to innocent passage is the promotion of trade,
commerce and communication between states.3
Law of sea has now become very established after a series of conventions
starting from Hague Codification Conference in 1930 followed by Geneva
Conference on the law of the sea,1958 (UNCLOS I), followed by UNCLOS II in
1960 and then present law of sea (UNCLOS III) came into force in the year 1982. It
is now regarded as a codification of the customary international law on the issue.
3D.P. OConnell,International Law (2nd Edn.1970) London
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Geneva conference on the Law of the Sea, 1958 made it clear that coastal
state exercises sovereignty over the territorial water but this is subject to certain
restrictions. In other words, despite the fact that coastal states have sovereignty over
a particular part of the sea, yet it is the duty of the state to provide innocent passage
to the ships of other states.4
Article 17 of UNCLOS provides for innocent passage to the ships of all the
states, whether coastal or land locked through territorial sea. Passage means
navigation through the territorial sea for the purpose of either transversing that sea
without entering internal waters, or of proceeding to internal waters, or making for
the high seas forms internal waters. Passage includes stopping and anchoring but
only in so far as the same are incidental to or are rendered necessary by force
majeure or by distress.5
RIGHT TO PASSAGE UNDER UNCLOS1982: A WORMS EYE VIEW
Article 211and Art.21 (1) (f) of the UNCLOS 1982 empowers coastal state to
make laws with regard to the prevention of pollution through vessels. Article 21 of
the UNCLOS 1982 empowers coastal state to make laws for the safety of navigation
and the regulation of maritime traffic, laying of submarine cables, the conservation
4I. A. Shearer, Starkes International Law (11th Edn. 2007) Oxford University Press, New Delhi
5David Harris, Cases & Materials on International Law, (Seventh Edition2011), Rakmo Press Pvt. Ltd, Delhi
http://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.html7/28/2019 Law of the Sea Assignment
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of the living resources of the sea, prevention of fisheries law, scientific research,
prevention of infringement of customs, fiscal, immigration, or sanitary laws.6
Article 22 of UNCLOS 1982 empowers coastal state to implement sea lanes
and traffic separation schemes for the foreign ships exercising the right to innocent
passage through their territorial sea with regard to safety of navigation. However,
they can temporarily suspend right to innocent passage within their territorial sea but
this should be done in accordance with the conventions and laws relating to innocent
passage.7
Even if conditions of passage under Article 18 of UNCLOS 1982 are
fulfilled, there remains exception to the right of innocent passage with respect to
criminal and civil jurisdiction of the coastal state on foreign vessels. A coastal state
may not exercise its jurisdiction on board a foreign vessel unless there is a serious
threat to the coastal state, measures for the suppression of drug traffic are necessary,
requests for aid have been made, or there is a particular situation in which the vessel
has left the internal waters of the coastal state and is still in the territorial sea and
action by the coastal state is warranted. If the vessel cannot be stopped in the
territorial sea, further action may be taken in accordance with the provisions for hot
pursuit under article 111 of the same convention.8
6 Ian Brownlie, Basic Documents in International Law, (Fourth Edition 1995) Oxford University Press Inc., New
York
7 Ian Brownlie, Principles of Public International Law, (Seventh Edition 2008)
8 Malcolm N. Shaw, International law, (Sixth Edition 2008), Cambridge University Press, New Delhi
http://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.html7/28/2019 Law of the Sea Assignment
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UNCLOS 1982: A BIRDS EYE VIEW
Let us now have a birds eye view on each provision of the UNCLOS 1982 which
deals with right to passage.
SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA
Section 3 of the UN Convention on the Law of the Sea of 1982 focus on the various
provisions that revolves around the right to passage in territorial waters. Section 3 is
further divided into three subsections and these subsections together encompasses a
total of 16 Articles.
SUB SECTION A. RULES APPLICABLE TO ALL SHIPS
This is the first Sub-Section under Section 3. It deals with those rules which govern all
sorts of ships. Sub Section A covers Article 17 to Article 26.
THE CONCEPT OF PASSAGE
Article 18of the UNCLOS embodies the meaning of passage. Passage, in line with
UNCLOS means navigation through the territorial sea for the purpose of traversing
that sea without entering internal waters or calling at a roadstead or port facility
outside internal waters. Navigation for the purpose of proceeding to or from internal
waters or a call at such roadstead or port facility also fall here.
This Article also puts forth certain conditions to deem navigation as passage. Passage
shall be continuous and expeditious. However, passage includes stopping and
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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.9
INNOCENT PASSAGE
Innocent passage is a concept in law of the sea which allows for a vessel to pass
through the territorial waters of another state subject to certain restrictions. Ships of all
States, whether coastal or land-locked, are bestowed with the right of innocent passage
through the territorial sea under Article 17.
Article 19(2) of the convention provides for some exceptions with regard to innocent
passage. Passage is innocent so long as it is prejudicial to peace, good order or
security of the coastal state. In other words, the activity of the vessel exercising the
right of innocent passage should not pose a serious and unacceptable threat to the
coastal state.
Passage of a foreign fishing vessel will not be considered as innocent if they do not
act in conformity with laws passed by the coastal state to prevent such an act.
Submarines and other underwater vehicles are required to navigate on the surface and
to show their flag. Foreign nuclear powered ships or ship carrying other dangerous or
noxious nuclear substance should carry necessary documents and present them while
9Oppenheims, International Law (9th Edn. 1996) Longman Publications, London
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exercising right to innocent passage if asked by the coastal state. They should also
take precautionary measures established for such ships by international agreement.10
Coastal state is immune to hamper, deny or impair the right to innocent passage if
vessel acts in accordance with rules and regulation set up by international convention
and agreements. State shall also not discriminate against the ships of any state or
against ships carrying cargoes to, from on behalf of any state. Coastal state is,
however also required to give appropriate publicity to any dangers to navigation of
which it has knowledge within its territorial sea.11
Article 19 explicates that 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.
However, the 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 orpolitical 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;10Rattigan, Customary Law, (Sixteenth Edition 2007), Universal Law Publishing Co., New Delhi
11Sharma O.P., The international law of the sea: India and the UN convention of 1982 (2009) Oxford university
press, India
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(c)any act aimed at collecting information to the prejudice of the defenceor security of the coastal State;
(d)any act of propaganda aimed at affecting the defence or security of thecoastal 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 personcontrary
to the customs, fiscal, immigration or sanitary laws and regulations of
the coastal State;
(h)any act of wilful 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.POWERS OF COASTAL STATE IN RELATION TO INNOCENT PASSAGE
UNCLOS confers powers on the Coastal State to frame laws and regulations with
regard to innocent passage under Article 21. It shall impose laws in respect of the
safety of navigation and the regulation of maritime traffic. It shall take measures for
the protection of navigational aids, installations, cables, pipelines and conservation of
the living resources of the sea. The coastal state shall also introduce laws for the
prevention of infringement of the fisheries laws and regulations of the coastal State
and preservation of the environment of the coastal State and the prevention, reduction
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and control of pollution. Further, it shall also bring about regulations for promoting
marine scientific research and hydrographic surveys and also for the prevention of
infringement of the customs, fiscal, immigration or sanitary laws and regulations of
the coastal State. The coastal State is also bound to give due publicity to all such laws
and regulations.12
Article 21 also envisages certain restrictions and limitations on these powers of a
Coastal State. By no means, the laws and regulations drafted by a coastal State shall
apply to the design, construction, manning or equipment of foreign ships unless they
are giving effect to generally accepted international rules or standards.
Finally, Article 21 mandates that 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.
SEA LANES AND TRAFFIC SEPARATION SCHEMES IN THE
TERRITORIAL SEA
In line with Article 22, the coastal State may, where necessary having regard to the
safety of navigation, require foreign ships exercising the right of innocent passage
12Bernaerts, Bernaerts Guide To The 1982 United Nations Convention On The Law Of The Sea (2006) Trafford
Publishing Co.
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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.13
Moreover, this Article lay down that tankers, nuclear-powered ships and ships carrying
nuclear or other inherently dangerous or noxious substances or materials should
compulsorily confine their passage to such sea lanes. Hence there shall be clear
indicators of such sea lanes and traffic separation schemes on charts to which due
publicity shall be given. The only condition that Article 22 depicts is that, a coastal
State shall make any sort of regulations after duly considering the following factors:
(a) the recommendations of the competent international organization;(b)any channels customarily used for international navigation;(c) the special characteristics of particular ships and channels; and(d)the density of traffic.
DUTIES OF VESSELS ENJOYING NAVIGATIONAL RIGHTS IN
TERRITORIAL WATERS
According to Article 20, in the territorial sea, submarines and other underwater
vehicles are required to navigate on the surface and to show their flag. Article 23
accentuates another duty on the foreign nuclear-powered ships and ships carrying
nuclear or other inherently dangerous or noxious substances. Such ships shall, while
exercising their right of innocent passage through the territorial sea, carry all those
13 James Harrison., Evolution of the law of the sea: developments in law-making in the wake of the 1982 Law of the
Sea Convention
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necessary documents and shall also be bound to observe special precautionary
measures established for such ships by international agreements.14
DUTIES OF COASTAL STATE
The prime duty imposed by Article 24 of the UNCLOS is that the coastal State shall
not hamper the innocent passage of foreign ships through the territorial sea except in
accordance with this Convention. Wherefore a coastal state is not empowered to
impose requirements on foreign ships which have the practical effect of denying or
impairing the right of innocent passage. The Coastal State shall not discriminate in
form against the ships of any State or against ships carrying cargoes to, from or on
behalf of any State. Finally, the coastal State shall give appropriate publicity to any
danger to navigation, of which it has knowledge, within its territorial sea.15
RIGHTS OF PROTECTION OF THE COASTAL STATE
UNCLOS 1982 empowers the coastal state to take all sorts of necessary measures
within the ambit of its territorial sea to prevent those passages which are not innocent.
Article 25 of UNCLOS 1982 deals specifically with this power.
In instances of ships proceeding to internal waters or a call at a port facility outside
internal waters, the coastal State also has absolute 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.
14Kissi Agyebeng, Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea
15Lynden Hall, Territorial Jurisdiction and the Criminal Law, [1972] Criminal Law Review p.276
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But, while exercising this right, the coastal State shall not in any form discriminate
among foreign ships, suspend temporarily in specified areas of its territorial sea, the
innocent passage of foreign ships if such suspension is essential for the protection of
its security, including weapons exercises. Such suspension shall take effect only after
having been duly published.16
CHARGES WHICH MAY BE LEVIED UPON FOREIGN SHIPS
Article 26 embodies two sub articles that elucidates on charges which may be levied
upon foreign ships. The first sub article states that a coastal state shall not levy any
charge on a foreign ship solely on the reason of its passage through the territorial sea.
The second sub article enables the coastal state to levy charges upon a foreign ship
passing through the territorial sea as payment for those specific services which are
rendered to that ship. These charges shall be levied without discrimination.
SUBSECTION B.
RULES APPLICABLE TO MERCHANT SHIPS AND GOVERNMENT SHIPS
OPERATED FOR COMMERCIAL PURPOSES
Sub Section B specifically deals with those rules which can be applied to Merchant
Ships and Government Ships which operate for commercial purposes in the
International Scenario. This Sub Section consists of only two ArticlesArticle 27 and
Article 28.
16Stephen Rose , Naval Activity in the Exclusive Economic Zone : Troubled Waters Ahead (1990) O.D.I.L.,
Vol.21
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CRIMINAL JURISDICTION ON BOARD A FOREIGN SHIP
Article 27 implicates that a coastal state shall not exercise its criminal jurisdiction on
board a foreign ship passing through the territorial sea to arrest any person or to
conduct any investigation in connection with any crime committed on board the ship
during its passage. The coastal state is not prevented from exercising criminal
jurisdiction on board a foreign ship in the following instances:
(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 bythe 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 illicittraffic in narcotic drugs or psychotropic substances.
Under no circumstance the above three provisions shall affect the right of a coastal
State to take any steps authorized by its laws for the purpose of an arrest or
investigation on board a foreign ship passing through the territorial sea after leaving
internal waters. The coastal State may also, if the master so requests, notify a
diplomatic agent or consular officer of the flag State before taking any steps, and shall
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facilitate contact between such agent or officer and the ship's crew. In cases of
emergency this notification may be communicated while the measures are being taken.
With regard to the manner in which an arrest should be made, the local authorities
shall have due regard to the interests of navigation. The coastal State may not take any
steps on board a foreign ship passing through the territorial sea to arrest any person or
to conduct any investigation in connection with any crime committed before the ship
entered the territorial sea, if the ship, proceeding from a foreign port, is only passing
through the territorial sea without entering internal waters.
CIVIL JURISDICTION IN RELATION TO FOREIGN SHIPS
The powers of a coastal State in relation to the exercise of its civil jurisdiction are
given in Article 28 of UNCLOS 1982. According to this Article, 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.
Secondly, 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. The aforementioned right shall be exercised
without prejudice to the right of the coastal State, in accordance with its laws, to levy
execution against or to arrest, for the purpose of any civil proceedings, a foreign ship
lying in the territorial sea, or passing through the territorial sea after leaving internal
waters.
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SUBSECTION C.
RULES APPLICABLE TO WARSHIPS AND OTHER GOVERNMENT SHIPS
OPERATED FOR NON-COMMERCIAL PURPOSES
The third Sub Section of Section 3 elucidates the rules with regard to Warships and
other Government Ships which operate for purposes that are not commercial. This
subsection covers Article 29 to Article 32.
WHAT IS A WARSHIP?
The definition of the term warship is embedded in Article 29 of the UNCLOS. In line
with Article 29, "warship" means a ship belonging to the armed forces of a State which
bears the external marks distinguishing such ships of its nationality, under the
command of an officer duly commissioned by the government of the State and whose
name appears in the appropriate service list or its equivalent, and manned by a crew
which is under regular armed forces discipline.
WHAT WILL HAPPEN IF A WARSHIP ACTS DETORGATORY TO THE
COASTAL STATE REGULATIONS?
Whenever there is a non-compliance by warships with the laws and regulations of the
coastal State, Article 30 of UNCLOS comes into operation. In instances where any
warship declines to comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
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compliance therewith which is made to it, the coastal State may require it to leave the
territorial sea immediately.
FLAG STATE RESPONSIBILITY FOR DAMAGES CAUSED BY WARSHIP
OR OTHER GOVERNMENT SHIPS
Article 31 enumerates the responsibility of the flag State for damage caused by a
warship or other government ship operated for non commercial purposes. The flag
State shall bound to bear international responsibility for any loss or damage to the
coastal State resulting from the non-compliance by a warship or other government ship
operated for non-commercial purposes with the laws and regulations of the coastal
State concerning passage through the territorial sea or with the provisions of this
Convention or other rules of international law.
IMMUNITIES OF WARSHIPS AND OTHER GOVERNMENT SHIPS
OPERATED FOR NON-COMMERCIAL PURPOSES
The final provision, i.e. Article 32 guarantees that none of the provisions in UNCLOS
1982 shall affect the immunities of warships and other government ships operated for
non-commercial purposes. The exceptions in various Articles such as Article 30,
Article 31, etc. shall be applicable.
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RELEVANT PRECEDENTS
CORFU CHANNEL CASE17
One of the famous case on the right to innocent passage is The Corfu Channel Case.In
this case, on 22-10-1946 squadron of British warships, the cruisers Mauritius and
Leander; and the destroyers Saumarez and Volage, left the port of Corfu and
proceeded northwards through a channel previously swept for mines in the North
Corfu Strait. Outside the bay Saranda, Saumarez struck a mine and was heavily
damaged whilst towing the damaged ship Volage struck a mine and was badly
damaged. On 13-11-1946, the Britishers removed 22 mines in the north Corfu
channel. As the mines were swept by Britishers, the Albanian army fired at Britishers
causing damage to their ship and lives of the navy. British reported the matter to
Security Council. Later both the countries agreed to refer the matter to International
Court of Justice.
In court, Albania contended that the Corfu channel was an innocent passage. Britain
prayed for the compensation for the damage caused to its ships and lives of the navy.
The international court of justice held Albania liable for installing mines and
explosions in the innocent passage, i.e. North Corfu Channel. The court also held that
Britain intervened the sovereignty of Albania by removing explosive substance from
the territorial water of Albania without its permissions. It was held that Albania
17United Kingdom v.Albania, [1949] ICJ Rep. 4
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should have given prior intimation to the Britishers regarding the mines and
explosives in their territorial sea. Albania was asked to pay compensation to Britain.
This series of incidents led to the Corfu Channel Case, where the United Kingdom
brought a case against the People's Socialist Republic of Albania to the International
Court of Justice. The Court rendered a decision under which Albania was to pay
844,000 to Great Britain, the equivalent of 20 million in 2006. But by removing the
mines, Britain intervened the sovereignty. Therefore, the Britain was not entitled to
receive compensation.
S.S. LOTUS CASE18
This is a landmark decision in the area of exercising jurisdiction and delivered by the
Permanent Court of International Justice. The Objective Territorial Principle, applied
here. In this case, a French mail steamer, the LOTUS collided on the high seas with a
Turkish Collier. It was alleged that the collision was due to the gross negligence of
the officer of the watch on board the LOTUS. As a result of the collision, the Turkish
Collier sank and 8 Turkish nationals on board perished. The Turkish Authorities
instituted the proceedings against the officer of the watch, basing the claim to
jurisdiction on ground that the act of negligence on board the LOTUS had produced
effect on Turkish Collier and thus applying the Objective Territorial Principle the
case could be tried in Turkey. By a majority decision the Permanent Court held that
action of the Turkish Authorities was not inconsistent with the International Law.
18 1927 PCIJ series A, No.10
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MASSIMILANO LATORRE v. UNION OF INDIA19
The 2012 Italian shooting in the Arabian sea is an incident under investigation of 15
February 2012, off the coast of southern India, in which the use of lethal force by
members of an Italian navy Vessel Protection Detachment (VPD) on board oil tanker
MV Enrica Lexie was linked to the death of two Indian fishermen on board a fishing
boat. Ajesh Pink and Valentine aka Gelastine, natives of Tamil Nadu and Kerala
respectively, were allegedly shot dead by Italian marines of the Reggimento San
Marco, Marina Militare. The Italian Marines Massimiliano Latorre and Salvatore
Girone are the alleged perpetrators of the crime. The case provides an ample room
wherein it is evincible how a country can exercise its criminal jurisdiction and extra
territorial jurisdiction in its territorial waters and Exclusive Economic Zone.
THE QUEEN v. CARR AND WILSON
20
In this case, certain bonds or valuable securities were stolen from a British ocean-
going merchant ship whilst she was lying afloat, in the ordinary course of her trading,
in the river at Rotterdam, in Holland, moored at the quay, and were afterwards
wrongfully received in England by the prisoners with a knowledge that they had been
thus stolen. The place where the ship lay at the time of the theft was in the open river,
sixteen or eighteen miles from the sea, but within the ebb and flow of the tide. There
19 (2012) 252 KLR 794
20 QBD Vol. X. dated 25/11/1882
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were no bridges between the ship and the sea, and the place where she lay was one
where large vessels usually lie. It did not appear who the thief was, or under what
circumstances he was on board the ship. At Page 85, it was held as follows:
The true principle is, that a person who comes on board a British ship, where
English law is reigning, places himself under the protection of the British flag, and as
a correlative, if he thus becomes entitled to our law's protection, he becomes
amenable to its jurisdiction, and liable to the punishments it inflicts upon those who
there infringe its requirements. If the ship had sailed for this country before he got
ashore with the bonds thus stolen, instead of after, and brought him to this country
against his will, I say he could have been tried and convicted here. The conviction
must be affirmed.
The alleged offence was committed in a British ship flying the British flag and the
case was correctly tried and convicted in England.
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INDIAN SCENARIO
India is a signatory to the U.N. Convention on the Law of the Sea, 1982.
Besides this, there is a national legislation governing the coastal regions within the
sovereignty of India known as the Territorial Waters, Continental Shelf, Exclusive
Economic Zone and other Maritime Zones Act, 1976.
Section 4(1) of this act deals with right to innocent passage within the
territorial sea of India. It provides that all foreign ship other than the warships which
excludes submarines and other under water vessels shall enjoy the territorial sea of
India. However, section 4(2) this act allows foreign warships including submarines
and other underwater vehicles to enter or pass through the territorial waters after
giving prior notice to the Central Government and they are also required to navigate
on the surface and show their flags. Section4 (3) of this act provides that the Central
Government may, if satisfied that it is necessary so to do in the interests of the peace,
good order or security of India or any part thereof, suspend, by notification in the
Official Gazette, whether absolutely or subject to such exceptions and qualifications
as may be specified in the notification, the entry of all or any class of foreign ships
into such area of the territorial waters as may be specified in the notification.
Indias merchant fleet is global career, and besides Indian trade, its vessels
are also chartered for carrying cargoes. Therefore, right to innocent passage is
exercised by Indian vessels to move and trade across the globe.
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CONCLUSION
There are two notions that have influenced international law relating to oceans. The
first notion talks about the freedom of navigation. It says that sea is common to all
humankind and open to navigational use by all. This notion is borne out by the belief
that geophysical nature of the ocean itself resists any claim of ownership over it. So,
this notion restricts the power of state or an individual with regard to ownership over
sea. The first person to come up with this view was Hugo Grotius expressed in his
seminal thesis on the law of the sea in Mare Liberum in 1609. He set up the foundation
of the principle of freedom of seas.
The second notion seeks to restrict the use of the sea by positing that the sea is
amenable to ownership by persons or states. Thus, whoever may bring any part of the
oceans under his dominion may validly restrict its use by others. The friction between
these two notions has, over the years been, the shaping rod of the law of the sea.
Seas have always been a great importance for humans. The oceans serve as a vital link
between nations in terms of trade, commerce and communication. In this way it has
also been one of the major sources of economy for many nations. These concerns are
the mainstay of the world economy and there have been the push-and-pull factors in
the line of the cross fire between the opposing forces of freedom of navigation on the
one hand and restricted access on the other hand.
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The middle path of the interaction between these two notions discussed is the principle
of innocent passage. After centuries of turbulent evolution, this principle now appears
to have crystallized with its codification in the Law of the Sea Convention.
The United Nations Convention on the Law of the Sea (UNCLOS) bridges the gap
between centuries-old rights and obligations and the new awareness that the seas are
not an inexhaustible resource for those whose geographic or economic development
facilitates maritime exploitation. The UNCLOS represents an exceptionally important
contribution to international relations.
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REFERNCE
a) Books Referred1. D.P. OConnell,International Law (2nd Edn.1970) London2. David Harris, Cases & Materials on International Law, (Seventh
Edition2011), Rakmo Press Pvt. Ltd, Delhi
3. I. A. Shearer, Starkes International Law (11th Edn. 2007) Oxford UniversityPress, New Delhi
4. Ian Brownlie, Basic Documents in International Law, (Fourth Edition 1995)Oxford University Press Inc., New York
5. Ian Brownlie, Principles of Public International Law, (Seventh Edition 2008)6. Malcolm N. Shaw, International law, (Sixth Edition 2008), Cambridge
University Press, New Delhi
7. Oppenheims, International Law (9th Edn. 1996) Longman Publications, London8. Rattigan, Customary Law, (Sixteenth Edition 2007), Universal Law Publishing
Co., New Delhi
9. Sharma O.P., The international law of the sea: India and the UN convention of1982 (2009) Oxford university press, India
b) Articles Referred1. Bernaerts, Bernaerts Guide To The 1982 United Nations Convention On The Law
Of The Sea (2006) Trafford Publishing Co.
2. James Harrison., Evolution of the law of the sea: developments in law-making inthe wake of the 1982 Law of the Sea Convention
(http://www.era.lib.ed.ac.uk/bitstream/1842/3230/1/J)
3. Kissi Agyebeng, Theory in Search of Practice: The Right of Innocent Passage inthe Territorial Sea(http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1024&context=lps_papers)
4. Lynden Hall, Territorial Jurisdiction and the Criminal Law, [1972] Criminal LawReview p.276
5. Stephen Rose , Naval Activity in the Exclusive Economic Zone : Troubled WatersAhead (1990) O.D.I.L., Vol.21
http://www.era.lib.ed.ac.uk/bitstream/1842/3230/1/Jhttp://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1024&context=lps_papershttp://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1024&context=lps_papershttp://www.era.lib.ed.ac.uk/bitstream/1842/3230/1/J