1.0 INTRODUCTION

The right of innocent passage is a fundamental principle of international maritime law, it is as old as the law of the sea itself and one of the most universally recognized rules of public international law. The right is premised on general right of freedom of navigation in international waters. The right of innocent passage allows foreign ships to navigate through another country’s territorial sea in a manner that is innocent and not prejudicial to the peace, security, or good order of the coastal state. In other words, the activities of a vessel or ship exercising the right of innocent passage should not engage in any actions that constitute a serious or unacceptable threat to the coastal state. The right of innocent passage is a customary international law principle enshrined in the United Nations Convention on the Law of the Sea (UNCLOS) of 1982.

The right of innocent passage is governed by articles 17 to 32 of the Law of the Sea Convention. Article 17 of the UNCLOS grants ships of all states, whether coastal or landlocked the right of innocent passage.

Nigeria is a signatory to the United Nation Convention on the Law of the Sea (UNCLOS) 1982. As a coastal state, Nigeria recognizes and upholds the right of innocent passage through its territorial sea in accordance with International Law and laws enacted in Nigeria for that purpose. The national legislation governing the right of innocent passage is the Nigerian Maritime Zones Act of 2020.

2.0 DEFINITION OF INNOCENT PASSAGE AND WHEN PASSAGE WILL BE SAID NOT TO BE INNOCENT

Passage, according to the Convention is 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; or proceeding to or from internal waters or a call at such roadstead or port facility. It is the requirement of the Convention that such passage must be continuous and expeditious transit through the territorial sea, without entering internal waters or carrying out any activities that are inconsistent with the concept of innocent passage. Passage includes navigation, overflight, and other incidental activities necessary for the ship’s navigation, such as anchoring, berthing, and launching lifeboats, as long as they are solely for the ship’s safety or the safety of its crew.

A passage is said to be innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. If a ship engaged in innocent passage conducts activities that violate the coastal state’s laws and regulations or threatens its peace, security, or order, it may be considered prejudicial to the coastal state.

Article 19(2) provides for instances where passage will be considered to be prejudicial to the peace, good order or security of the coastal State and they include any of the following activities:

• 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 defence or security of the coastal State;
• any act of propaganda aimed at affecting the defence 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 wilful 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.

While enjoying this right in the territorial sea of another country, submarines and other underwater vehicles are required to navigate or sail on the surface and to display their flag.

3.0 IMPORTANCE OF RIGHT OF INNOCENT PASSAGE

The right of innocent passage is an essential aspect of maritime law and carries significant importance as it ensures the freedom of navigation by allowing ships and aircraft to move freely through international waters and airspace. The right also plays a crucial role in maintaining peaceful relations among States. By respecting the right of innocent passage, states demonstrate their commitment to international cooperation and peaceful coexistence.

The right of innocent passage also facilitates international trade, commerce, and communication by enabling vessels to traverse the shortest and most efficient routes between ports and destinations. With this right, ships can efficiently transport goods and resources across oceans.

4.0 DUTIES OF THE COASTAL STATES

In the course of the passage, the coastal states have certain duties and obligations to ensure the smooth and lawful exercise of the right of innocent passage by foreign ships passing through their territorial water.  The coastal states shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention, by imposing requirements which have the practical effect of denying or impairing the right of innocent passage on the foreign ships or discriminating in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. The coastal states are also required to give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea.

Coastal states are also responsible to protect the marine environment within their territorial sea. They may enforce environmental laws and regulations to prevent pollution, preserve natural resources, and maintain ecological balance. However, such regulations should not unduly interfere with the right of innocent passage.

Coastal states have the right to take necessary measures to prevent unauthorized activities that are not consistent with the concept of innocent passage. This includes activities such as smuggling, piracy, unauthorized broadcasting, or any other unlawful acts. They may also adopt measures to protect their security and defence interests. This can include establishing prohibited zones, requiring prior notification for the passage of warships, or taking actions necessary to maintain their national security.

The Convention also allows the coastal states to levied charges upon foreign ship passing through the territorial sea as payment for specific services rendered to the ship which must be levied without discrimination.

5.0 DUTIES ON SHIP ENGAGED IN INNOCENT PASSAGE

A ship is subject to specific duties and obligations when it is making an innocent passage through a coastal state’s territorial sea. The United Nations Convention on the Law of the Sea (UNCLOS), which establishes the rules for innocent passage, specifies these obligations.

By the provision of UNCLOS, when a ship is exercising the right of innocent passage, it must comply with the laws and regulations of the coastal state relating to innocent passage and all generally accepted international regulations relating to the prevention of collisions at sea. The ship must maintain continuous and expeditious passage through the territorial sea without undue delay and it must be in a manner that is not prejudicial to the peace, good order, or security of the coastal state.

When passing through the territorial sea of another state, a ship must navigate in a safe and orderly manner, following established navigational rules and avoiding any actions that could endanger the vessels, persons, or property and also comply with international

Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements.

6.0 CONCLUSION

The right of innocent passage is universally recognised in international law in the interest of navigation; this right allows ships and aircraft to travel through another country’s territorial waters or airspace in a peaceful and non-threatening manner. The right of innocent passage is of great importance as it upholds the freedom, peace and cooperation among nation and fosters economic development.

Habeeb Lawal Olayinka is a Law Graduate from Faculty of Law, Bayero University, Kano. He can be reached vai his mail; olayinkalawah@gmail.com; and his phone number 08169894541.

United Nations Convention on the Law of the Sea (UNCLOS), 1982

Nigerian Maritime Zones Act, 2020

All Answers ltd, ‘The Right of Innocent Passage in the UN Convention’ (Lawteacher.net, June 2023) <https://www.lawteacher.net/free-law-essays/international-law/the-innocent-passage-in-the-un-convention-international-law-essay.php?vref=1> accessed 5 June 2023

Haris Jamil, ‘Right of Innocent Passage in Territorial Sea’ (Legal Service India.com) <https://www.legalservicesindia.com/article/292/Right-to-Innocent-Passage-in-Territorial-Sea..html> accessed 2 June 2023