to restrict entry into or transit through its internal waters, port entry, imports or immigration.
The exception to the right of the coastal State to deny entry into or transit through its internal waters is found in article 8(2), which provides:
When the establishment of a straight baseline ... has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.
If a foreign flag vessel is found in a coastal State's internal waters without its permission, the full range of reasonable enforcement procedures is available against a foreign commercial vessel. With respect to foreign warships and other government ships on non-commercial service, which are immune from the enforcement jurisdiction of all States except the flag State, it may be inferred that a coastal State may require such a vessel to leave its internal waters immediately (cf. article 30). In addition, a port State has the right to refuse to permit foreign ships from entering or remaining within its internal waters.
Territorial Sea
Right of innocent Passage. One of the fundamental tenets in the international law of the sea is that all ships enjoy the right of innocent passage through another State's territorial sea. (Innocent passage does not include a right of overflight or submerged passage.) This principle finds expression in article 17, and is developed further throughout Section 3 of Part II of the Convention (articles 17-32). These precise and objective rules governing innocent passage represent a significant advance in development of law of the sea concepts.
The Convention defines "passage" (article 18) and "innocent passage" (article 19), and lists those activities considered to be non-innocent or "prejudicial to the peace, good order or security of the coastal State" (article 19(2)(a)-(1))
The definition of passage in article 18 is essentially the same as that in article 14(2) and (3) of the Territorial Sea Convention. Three new elements appear in article 18. First, the Convention recognizes that ports of a coastal State may be located outside that State's internal waters (as, for example, a roadstead or an offshore deep water port). Second, the Convention makes explicit that passage through the territorial sea must be continuous and expeditious. Third, the Convention provides that passage includes stopping and anchoring for the purpose of rendering assistance to persons, ships or aircraft in danger or distress, thereby expanding upon the customary right of "assistance entry."
Article 19(2) adds to the basic definition of innocent passage, i.e., that passage is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal State, an all-inclusive list of activities considered to be prejudicial to the peace, good order, and security, and therefore inconsistent with innocent passage. (Such activities do not include the use of equipment employed to protect the safety or security of the ship.) This list provides criteria by which States can determine whether a particular passage is innocent.
Article 19(2) refers to activities that occur in the territorial sea. This means that any determination of non-innocence of passage by a transiting ship must be made on the basis of acts it commits while in the territorial sea. Thus cargo, means of propulsion, flag, origin, destination, or purpose of the voyage cannot be used as criteria in determining that the passage is not innocent. This point is of major national security significance, in particular because some 40 percent of U.S. Navy combatant ships use nuclear propulsion.
Article 20 requires that submarines and other underwater vehicles must navigate on the surface and show their flag while in the territorial sea, unless the coastal State decides to waive that requirement (as has been done in the NATO context).
Article 25(1) authorizes the coastal State to take appropriate measures in the territorial sea to prevent passage that is not innocent. Pursuant to Article 25(2), the coastal State also may take the measures necessary to prevent any breach of the conditions for admission of foreign ships to internal waters, as well as calls at a port facility outside internal waters.
Article 21(4) requires foreign ships exercising the right of innocent passage to comply with the laws and regulations enacted by the coastal State in conformity with the Convention, as well as all generally accepted international regulations relating to the prevention of collisions at sea. Subject to the provisions regarding ships entitled to sovereign immunity, this duty applies to all ships. However, the Convention provides no authority for a coastal State to condition the exercise of the right of innocent passage by any ships, including warships, on the giving of prior notification to or the receipt of prior permission from the coastal State.
Articles 21-24 add new and useful details regarding the rights and duties of coastal States and foreign ships. For purposes such as resource conservation, environmental protection, and navigational safety, a coastal State may establish certain restrictions upon the right of innocent passage of foreign vessels, as set out in article 21. This list is essentially new in the Convention and is exhaustive.
Such restrictions must be reasonable and necessary and not have the practical effect of denying or impairing the right of innocent passage. Article 24(1) provides that the restrictions must not discriminate in form or in fact against the ships of any State or those carrying cargoes to, from, or on behalf of any State. Pursuant to article 22, the coastal State may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage to utilize designated sea lanes and traffic separation schemes; tankers, nuclear powered vessels, and ships carrying dangerous or noxious substances may be required to utilize such designated sea lanes. Article 23 requires such ships, when exercising innocent passage, to carry
