2.3 Coastal State jurisdiction in territorial waters and navigational rights of foreign merchant ships
The Coastal State sovereignty extends to the territorial waters – the maritime zone beyond their land territory and internal waters to that adjacent belt of sea measured from the baselines to a maximum of 12 nautical miles.(1) UNCLOS, supra note 11, Article 2,3. Despite significant similarities, there exist notable distinctions between the legal framework governing territorial waters and that of internal waters. This disparity arises from the voluntary concession of sovereignty by Coastal States, who, in the pursuit of international cooperation and facilitation of merchant shipping, have acknowledged the entitlement of foreign vessels to engage in innocent passage through their territorial waters.(2) UNCLOS, supra note 11, Article 17.Kraska, supra note 39, pp. 116-117. The legal framework governing the territorial waters is a result of reconciling two distinct principles: the sovereignty of the Coastal State and the navigational rights of all other States.(3) Henrik Ringbom, eds, Jurisdiction over Ships (Leiden, The Netherlands: Brill | Nijhoff, 2015), pp. 174, 177-178, accessed September 4, 2023, https://doi-org.ezproxy.uio.no/10.1163/9789004303508. Thus, it would be inaccurate to assert that the Coastal States possess “full sovereignty” to the same extent as in internal waters, as the acknowledgment of the right of innocent passage imposes substantial limitations on the Coastal State jurisdiction over foreign vessels transiting through the territorial sea.(4) Mbiah, supra note 33, pp. 498-499.
Nevertheless, the right of innocent passage is, on no account, absolute. Rather than being a complete freedom, it can be seen as a residual aspect of the principle of freedom of navigation in the territorial sea.(5) Manu Kumar, “Analysis of Innocent Passage in the Territorial Sea under the Law of the Sea Regime 1982,” European Environmental Law Review 21 (6) (2012): pp. 306–315, accessed October 26, 2023, https://doi.org/10.54648/eelr2012024. This right must be exercised in accordance with the rules of international law, primarily outlined in UNCLOS, as well as any national laws and regulations established by the Coastal States.(6) Rüdiger Wolfrum, ”Freedom Of Navigation: New Challenges,“ in Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (Leiden, The Netherlands: Brill | Nijhoff, 2009), pp. 82-84, accessed October 3, 2023, https://doi-org.ezproxy.uio.no/10.1163/ej.9789004173590.i-624.31.
Under UNCLOS Article 18, foreign merchant ships in the territorial waters have a duty to passage “continuously and expeditiously”, “without entering internal waters”, or “external port facilities”, except in the case of certain specified constellations.(7) UNCLOS, supra note 11, Article 18(1,2). In addition, foreign merchant ships have obligation when exercising the right of innocent passage, which entails their submission to the legal framework established by the Coastal State.(8) Yang, supra note 35, pp. 173-174.UNCLOS, supra note 11, Article 21(4). The “broadness of prescriptive jurisdiction” of Coastal States is evident in UNCLOS Article 21, which outlines a comprehensive set of points (a-h) that delineate the areas in which the Coastal States have the authority to establish laws and regulations pertaining to innocent passage.(9) UNCLOS, supra note 11, Article 21.
UNCLOS Articles 21(1)(f) and 211(4) grant the right to Coastal States to prescribe stricter national standards for “the prevention, reduction, and control of marine pollution from foreign vessels” in innocent passage.(10) Ibid., Article 21(1)(f), 211(4). However, the authority of Coastal States to establish laws and regulations pertaining to environmental protection is not without limitations.(11) Wolfrum, supra note 53, p. 84. UNCLOS provides for two restrictions in that regard: 1) Coastal States have a duty not to hamper the right of innocent passage of foreign ships;(12) UNCLOS, supra note 11, Article 24(1). 2) laws and regulations giving effect to stricter construction, design, equipment and manning (hereinafter “CDEM”) standards are only permitted to the extent they give effect to GAIRAS;(13) Nordquist, eds., supra note 47, p. 814. The significance of the latter aspect cannot be overstated when it comes to the execution of IMO treaty instruments, and any national regulations that impose stricter prerequisites may potentially contravene the provisions governing innocent passage as stipulated by UNCLOS.(14) Fabio Spadi, “Navigation in Marine Protected Areas: National and International Law,” Ocean Development and International Law 31 (3) (2000): pp. 289-291, accessed November 4, 2023, https://doi.org/10.1080/009083200413172.
In contrast to the legal framework governing internal waters, which requires the prescriptive jurisdiction of the Coastal State on the management of marine pollution to be subject to oversight by the IMO, such an obligation is absent within internal waters.(15) UNCLOS, supra note 11, Article 211(4). It seems to deviate from UNCLOS intended objective of granting the Coastal States varying (diminishing) degree of authority to govern navigation for the purpose of preventing ship-source pollution as the ship moves further away from the shore, contingent upon the specific maritime zone in question.(16) Nordquist, eds., supra note 47, p. 756. Nevertheless, the absence of this provision appears to be counterbalanced by the principle that Coastal State laws shall not impede the right of innocent passage.
For this purpose, UNCLOS offers a “test,” which stipulates that hampering innocent passage in territorial waters is permissible only when the actions of the foreign ship align with activities that would render the passage non-innocent as outlined in paragraph 2 of Article 19(17) UNCLOS, supra note 11, Article 19., or when there is a severe violation of the Coastal State laws and regulations as stated in Article 21(1) (a-l)(18)Ibid., Article 21(1).. In practical terms, this suggests that the Coastal States do not possess the unilateral authority to determine whether to allow or deny passage in territorial waters, contrasting to, for example, the lawful implementation of an authorization and permit system that governs the entry of foreign vessels into internal waters.(19) Spadi, supra note 61, pp. 290-291.
Speaking about Coastal State enforcement jurisdiction: firstly, if the passage is rendered non-innocent pursuant to one of the criteria outlined in UNCLOS Article 19(2), Coastal State authorities acknowledge their “full scale” enforcement jurisdiction with regard to ships in non-innocent passage(20) FNI, supra note 38, p. 25., thus being empowered to “take the necessary steps”, including the possibility to suspend or decline admission, or even exclude the vessel from their territorial waters.(21) UNCLOS, supra note 11, Article 25(1). For example, in the context of vessel-source pollution, enforcement is allowed only where the ship commits an “act of wilful and serious pollution”.(22)Ibid., Article 19(2)(h). The competence of enforcement is generally unrestricted if it adheres to international law and is subject to limitations of proportionality, necessity, prohibition of abuse of rights, and non-discrimination.(23) Yang, supra note 35, pp. 184, 196-198. However, this example implies that the Coastal State's threshold for enforcement is relatively stringent.
Secondly, if the threshold is not met, Coastal State enforcement powers are restricted to conducting physical inspections, initiating legal actions and detaining vessels only when there are “clear grounds of believing” that the vessel has contravened national or international standards on vessel-source pollution.(24) UNCLOS, supra note 11, Article 220(2).