State Practices of Sri Lanka Regarding the Right of Innocent Passage and Exercise Jurisdiction

Prashan Perera,?psc, MBM (UoC), MCPS (UoC), MSc (D&SS-KDU), MSP (GRIPS, JPN), BSc (Hons), MTS (DS), MIM (SL)

The Right of Innocent Passage-International Legal Background

The argument between proponents of open seas and closed seas has resulted in the development of two principles: the territorial sea idea and the right of innocent passage. More than anything else, because of compromise, these principles are now firmly established in international law (Agyebeng, 2006). Subject to Article 17 of the United Nations Convention on the Law of the Sea (UNCLOS), ships of all states, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. The current legal status of innocent passage is outlined in UNCLOS, Articles 17–32. The 'innocent passage’ is made up of two parts: the 'passage' and the 'innocence' of the passage. Article 18(1) of the UNCLOS defines?passage?as traversing the territorial sea without entering internal waters, calling at a roadstead or port facility located outside internal waters, or proceeding to or from internal waters without calling at such a roadstead or port facility. This passage shall be 'continuous and expeditious’. However, passage includes stopping and anchoring, but only to the extent that they are necessary for ordinary navigation, are compelled by force majeure or distress, or are necessary to assist persons, ships, or aircraft in danger or distress (UNCLOS Article 18(2)). The passage of a foreign ship is ‘innocent’ so long as it does not jeopardize the coastal State’s peace, good order, or security (Article 19 (1)) and contains a list of non-innocent activities that a ship in the innocent passage may not engage in as per article 19 (2) of UNCLOS.

Churchill and Lowe (1983) emphasised the reason for the detailed provisions in the 1982 convention: to achieve a more objective definition that leaves less room for interpretation and thus less room for coastal states to abuse their right to prevent non-innocent passage. Agyebeng (2006) stated that the right of innocent passage strikes a balance between the maritime and coastal states’ interests. The former is concerned with preserving navigational freedoms, while the latter is concerned with preserving security interests. Thus, the right of innocent passage exists as a constraint and exception to the territorial sea sovereignty of an absolute coastal state. Furthermore, the difficult part is whether the term ‘innocent’ in the UNCLOS should be evaluated subjectively or objectively. This paper will analyse the enforcement jurisdiction and legislative jurisdiction of Sri Lanka regarding criminal and civil law in the event of the right of innocent passage outlined in articles 17–32 of UNCLOS. In addition, a few significant and unique legal applications which have emerged as deviations from international practice by some of the states will also be discussed under Sri Lanka’s state practices, and those relating to the right of innocent passage for warships, fishing vessels, and dangerous cargo-carrying vessels will be analyzed.?

Sri Lankan State Practices for the Right of Innocent Passage in line with International Law

Sri Lanka signed UNCLOS in 1982 and ratified it in 1994. The Maritime Zones Law No. 22 of 1976 establishes the notion of sovereignty by stating that Sri Lanka’s sovereignty extends to the territorial sea and the airspace over the territorial sea and subsoil. In Sri Lanka, the Maritime Zones Law expressly acknowledges the right to innocent passage, stating that ships of all states will be entitled to innocent passage across the territorial sea. In accordance with UNCLOS Article 19(1), the passage is classified as ‘innocent’ only if it does not jeopardise Sri Lanka’s peace, good order, or security. Sri Lanka has sovereignty over the territorial sea and the authority to legislate for this territory, exercising civil and criminal jurisdiction over foreign ships and vessels that violate such laws within this region.

While foreign merchant vessels have the right to innocent passage as announced in UNCLOS, state law may include further exclusions to enforce the latter’s current trade, customs, sanitary, and pollution rules. In this regard, UNCLOS confers some rights on a coastal state without impairing the right of innocent passage. According to Article 21 of UNCLOS, these include concerns about the safety of navigation and regulation of maritime traffic; the protection of navigational aids and other facilities or installations; the protection of cables and pipelines; the conservation of sea life; the prevention of fisheries law and regulation violations; the preservation of the marine environment and the prevention, reduction, and control of pollution; marine scientific research and hydrographic surveys; and the prevention of piracy. In light of these requirements, Sri Lanka has enacted numerous laws about relevant subject issues that impair the right of innocent passage. Acts such as the Merchant Shipping Act No. 52 of 1971, the Marine Pollution Prevention Act No. 35 of 2008, the Customs Ordinance, and the Immigrants and Emigrants Act No. 20 of 1948, among others, have been incorporated into the national legal system to resolve issues about the subject matter at hand and establish necessary limitations on the exercise of rights of innocent passage by users of the territorial sea under UNCLOS.

When non-innocent activities mentioned in article 19(2) of UNCLOS, such as loading or unloading of commodities, currency, or persons contrary to the customs, fiscal, immigration, or sanitary laws and regulations, happen according to article 25(1) of UNCLOS, Sri Lanka implements necessary steps in its territorial sea as per the customs ordinance, immigrants and emigrants act and merchant shipping act to prevent the non-innocent acts of merchant ships. For example, Sri Lankan Customs officials have the authority under the Customs Ordinance to board and search ships loitering inside Sri Lanka’s territorial waters, fine them, and even confiscate a ship. Similarly, authorised authorities (immigration officials) have the authority under the Immigrants and Emigrants Act to enter or board any ship, hold and inspect any person coming into or departing Sri Lanka, and request the presentation of any documentation. According to the provisions in the Department of Coast Guard Act, no 41 of 2009, the Sri Lanka Coast Guard has been empowered to assist the above officials in law enforcement. According to Merchant Shipping Function No. 52 of 1971, the Director-General of Merchant Shipping (DGMS) is authorised to act as the flag-state controller, whereas the Director-General of Customs is authorised to issue approval for any ship to sail until its master declares its nationality. The DGMS, on the other hand, has no right or jurisdiction to prohibit entrance to foreign boats other than those that enter a port in Sri Lanka, which he may do under the authority vested in him as port-state controller.

The Ministry of Defence in Sri Lanka has defined the necessity of sustaining national security and defence as a fundamental aim of its duties and functions regarding coastal and marine zone management through its implementation agency, the Department of Coast Guard. Thus, limiting entry to any foreign ship that breaches the right of innocent passage would come under the purview of national security, which the Coast Guard may easily enforce, for example, the authority to detain or forfeit the offending vessel. However, Sri Lanka does not have jurisdiction over crimes committed on board the foreign ship, as the flag state’s jurisdiction applies in this case. The rule of customary international law is spelled out in Article 27 of the UNCLOS, which states that the coastal State’s criminal jurisdiction should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or conduct any investigation in connection with any crime committed on board the ship during its passage, except in specified circumstances. Sri Lanka exercises jurisdiction under the UNCLOS objective requirement in all of the circumstances mentioned above. Domestic law is predicated on determining the word ‘innocent’ based on an actual breach of the territory’s peace rather than a mere threat of prejudice against the state’s national security interests.?

Sri Lankan State Practices Compared to Globally Emerging Special Legal Cases

Right of Innocent Passage for War Ships

According to the United Nations Convention on the Law of the Sea, fundamental requirements on innocent passage apply to ‘all ships’ (UNCLOS Articles 17–28). This article means that warships are likewise entitled to innocent passage. However, some states demand prior notification and prior authorization for foreign warships to navigate their territorial waters. However, as per international law, the restrictions imposed by Article 25.1 of UNCLOS only apply to vessels based on their ‘non-innocent’ status. Additionally, the principle of sovereign immunity applies to warships and other government vessels maintained for non-commercial reasons, i.e., no state may exercise jurisdiction over another on the assumption that all states are equal as per Article 32 of the UNCLOS. The UNCLOS, however, states that if a warship violates the coastal State’s rules and regulations, the coastal state may order the warship to depart the territorial sea immediately.

However, in section 3 (1) of the 1976 maritime zone legislation, the Sri Lankan legislative authority stipulates that no foreign warship shall enter or transit through the territorial sea unless with the Minister’s prior authorization and subject to such restrictions as the Minister may specify. Additionally, Section 3(3) of maritime zone law (1976) stated that any foreign ship or aircraft that violates this section’s terms is subject to seizure. At the moment, Sri Lankan law enforcement authorities challenge any foreign warship that enters Sri Lanka’s territorial seas without prior approval from the Minister of Defence. All state warships have positively acknowledged the Sri Lankan challenge and navigated beyond the territorial waters (except US warships). On the other hand, Sri Lanka has made no move to capture vessels in violation of the maritime zone law’s restrictions yet. Sri Lankan domestic law tends to judge warships' non-innocence subjectively, assuming that deploying warships into national seas jeopardises Sri Lanka’s security and territorial integrity. Thus, prior authorization generates further controversy, as domestic legislation breaches UNCLOS Article 24 (1) by blocking innocent passage through territorial waters, and however, it has become a kinda of customary international law.?

?Foreign Fishery Vessels and Right of Innocent Passage

There are several cases where both the Sri Lankan and Indian governments have disputed certain arrests because the coastal state violated the fishing vessel’s right to innocent passage through its territorial waters. India has appealed recent arrests by the Sri Lanka Coast Guard, and subsequent Sri Lankan courts have freed the boat and crew, drawing attention to UNCLOS clauses that permit such passage across another country’s territorial seas.

Domestic restrictions governing foreign fishing boats in Sri Lanka are outlined in the Foreign Fishing Boats Act No. 56 of 1979 and the 1976 maritime zone laws. The Maritime Zones Law refers to territorial seas as having sovereign powers. Thus, Sri Lanka has exclusive rights to fisheries in its territorial sea, and the foreign fishing boat statute prohibits foreign fishing boats from fishing in Sri Lankan seas unless they receive a licence. Those fishing boats without a permit passing through these waters must store their fishing gear away. According to the Foreign Fishing Boat Act No. 56 of 1979 and the Coast Guard Act No. 41 of 2009, officers have the authority to stop boats and enable examination by a Coast Guard officer if they have reasonable grounds to think an offence has been committed. If they discover such a breach of fishing in Sri Lanka’s marine zones after inspecting the stowing of fishing gear properly, the fishing catch, and the documentation, the master of the vessel and crew may be arrested and brought before a magistrate.

The right to innocent passage, on the other hand, is established in Article 17 of UNCLOS. India and Sri Lanka are both UNCLOS signatories. The article cited expressly permits fishing vessels from coastal states or landlocked countries to transit through another country's territorial waters to reach the high seas for fishing, as long as the act does not jeopardise the coastal State's good order, peace, or security, as defined in UNCLOS Article 19(1). Therefore, Sri Lankan coast guard officers should exercise greater caution when investigating foreign fishing vessels transiting through Sri Lanka’s territorial waters and arresting such vessels based on solid evidence that such vessels engaged in fishing activities within Sri Lanka's maritime zones, even though the burden of proof is on the perpetrator.

Hazardous Cargo Vessels Transiting on Territorial Waters

UNCLOS does not refer to the nature of the cargo as a criterion for determining innocence of passage. Furthermore, Article 23 of UNCLOS states that foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall carry documents and observe special precautionary measures established for such ships by international agreements when exercising the right of innocent passage through the territorial sea. Additionally, coastal states have the authority to establish a separate, constricted shipping line within the territorial sea for such boats to assure their safety.

Concerns of developing island states regarding the cessation of radioactive hazardous material transportation through the territorial sea, discussed in the United Nations General Assembly and the Proliferation Security Initiative (PSI), have prompted several states to enact national legislation prohibiting such carriage in the territorial sea. However, Sri Lankan domestic law does not require prior notification or authorization for foreign ships transporting hazardous goods under international law, and Sri Lanka has not established a particular maritime line for their navigation. As a result, freedom of passage is guaranteed until such a vessel becomes guilty (non-innocent). Sri Lanka, for example, intervened by expelling M/V Antigua from the port of Hambantota on 20 April 2021, which violated international law because a China-bound ship carrying radioactive uranium entered Sri Lanka’s internal waters without declaring that the ship was storing such materials, endangering the coastal State’s security (ANI, 2021).?

Conclusion

Following its acceptance of UNCLOS in 1994, Sri Lanka has used several domestic measures to encompass the legal framework of innocent passage stated in UNCLOS articles 17–32 in exercising its authority. Domestic laws in customs, tax, immigration and emigration, and maritime environmental rules are written to prioritise transit rights to maritime states (not to coastal Sri Lanka). This article refers, in particular, to the designation of non-innocent passage as limited to the operations of foreign ships as defined in UNCLOS Article 19(2), and also to the fact that Sri Lanka has not imposed any restrictions on the cargoes that are carried by foreign ships.?

The passing of warships and foreign fishing vessels in Sri Lankan territorial seas has raised contentious issues regarding Sri Lankan legal practices. Despite the UNCLOS reaffirmation of the right of innocent passage for all ships, Sri Lanka requires prior approval for warships to enjoy the right of innocent passage through territorial waters. According to maritime zone legislation, this practice has several subjective standards aimed at mitigating the threat of warships to its territory and enforcing enforcement action. Additionally, enforcement efforts involving foreign fishing vessels are based on an investigation by law enforcement officials, and in some instances, arrests have been made for denying the right to innocent passage of foreign fishing vessels.

?Reference

Agyebeng, W. K. (2006). Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea (Vol. 39, Issue 2, pp. 371-398). Cornell International Law Journal, https://doi.org/ISSN: 0010-8812

ANI. (2021). Sri Lanka: China-Bound Ship Carrying Nuclear Material Sent out of Hambantota Port Retrieved from https://Www.Aninews.in/News/World/Asia/

Churchill, R. R., & Lowe, A. V. (1983). The Law of the Sea (two). Manchester University Press

Customs Ordinance, and the Immigrants and Emigrants Act No. 20 of 1948, ???????? Retrieved from https://www.customs.gov.lk/about-us/customs-law

Department of Coast Guard Act, no 41 of 2009, Retrieved from https://coastguard.gov.lk/publications.htm

Foreign Fishing Boats Act No. 56 of 1979 Retrieved from https://www.fisheriesdept.gov.lk/web/index.php?option=com_content&view=arti cle&id=16&Itemid=135&lang=en

Hakap??, K. (2013). Innocent Passage, Oxford University Press.

Marine Pollution Prevention Act No. 35 of 2008, Retrieved from https://mepa.gov.lk/acts-regulation

Maritime Zones Law No 22 of 1976 Retrieved from https://www.commonlii.org/lk/legis/num_act/mzl22o1976233/

Merchant Shipping Act of No. 52 of 1972 Retrieved from: https://www.dgshipping.gov.lk/web/index.php?option=com_content&view=article &id=4&Itemid=108&lang=eUnited

Nation Convention of the Law of the Sea 1982 Retrieved from: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf#p age=24