Non-innocence Under Article 19(2)(a) UNCLOS: A Response to Cavalcanti de Mello Filho

[Holly Leung is a research assistant at the University of Hong Kong]

In a previously published piece responding to a legal opinion by ASCOMARE, Cavalcanti de Mello Filho illuminates on the question of whether coastal States may interrupt foreign vessels passing through their territorial seas where such vessels are transporting military material with the reasonable belief that such military material could be used for committing international crimes. Cavalcanti de Mello Filho makes two main arguments: First, that such vessels remain in innocent passage while passing through foreign territorial seas and therefore may not be interrupted by the coastal State based on such passage being non-innocent; but second, that coastal States could potentially interrupt such vessels as a lawful countermeasure under the law of State responsibility. This response will engage with the first argument on the interpretation of “innocent” passage in Article 19 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Specifically, in contrast to Cavalcanti de Mello Filho’s interpretation of Article 19(2)(a) UNCLOS, I argue that any threats or use of force in violation of principles of international law embodied in the Charter of the United Nations (UN Charter) would render passage non-innocent under Article 19(2)(a) UNCLOS, regardless of whether such activity was directed at the coastal State. 

19(2)(a) UNCLOS

Under Article 19(2)(a) UNCLOS, activities constituting “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 [UN Charter]” would render passage non-innocent. On a purely textual interpretation, Article 19(2)(a) would cover any activity which furthers the commission of international crimes, especially the violation of the principle of self-determination, since this would undoubtedly be a violation of the principles of international law embodied in the UN Charter, regardless of who or which State such activity targets. However, Cavalcanti de Mello Filho interprets Article 19(2)(a) as being only applicable to acts which are directed against the coastal State, partly because the definition of non-innocence has historically been focused on the protection of the coastal State. 

But times have changed. The context of Article 19(2)(a) and its interpretation in conjunction with Article 301 suggest that non-innocence is not and should not be premised upon the activity in Article 19(2)(a) being directed at the coastal State.  

The Context of Article 19(2)(a) 

Article 19 UNCLOS on the meaning of innocent passage is split into two parts: Article 19(1), which provides that “passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State”; and Article 19(2), which contains a list of activities for which passage “shall be considered to be prejudicial to the peace, good order or security of the coastal State”, a fortiori, non-innocent. 

Preliminarily, it should be noted that Article 19(2) was included in UNCLOS to produce a more objective definition of innocent passage. The 1958 Convention on the Territorial Sea and the Contiguous Zone did not contain such a list of activities and had only defined non-innocent passage as that prejudicial to the peace, good order or security of the coastal State, leaving room for interpretation as to whether a particular activity would have rendered passage non-innocent. By including a non-exhaustive list of activities that are deemed to be prejudicial to the coastal State’s interests, the effect of Article 19(2) is that the commission of any activity listed therein would automatically render the passage non-innocent, without the need to show that the activity was in fact prejudicial to the peace, good order or security of the coastal State. 

Therefore, Article 19(2)(a) is meant to define one type of activity for which passage would be regarded as non-innocent, period. There is no separate requirement that the activity must be directed against the coastal State. Thus, on the proper interpretation of Article 19(2)(a), threats or use of force which violate the principles of international law embodied in the UN Charter render passage non-innocent, period. 

The same applies for other activities listed in Article 19(2). For example, Article 19(2)(f) provides that “the launching, landing or taking on board of any military device” renders passage non-innocent, regardless of whether the military device is directed against the coastal State. Of course, it can be argued that the launching, landing, or boarding of a military device would ipso facto prejudice the coastal State’s interests. But if this is the case, can the same not be said for the violation of principles of international law embodied in the UN Charter, insofar as these principles represent obligations erga omnes (which is at least the case for the principle of respect for the right to self-determination, see the Chagos Opinion)? 

Interpreting Article 19(2)(a) Together With Article 301

The language of Article 19(2)(a) emulates that of Article 2(4) UN Charter, which expresses, in general terms, the prohibition of the use of force. As Churchill, Lowe, and Sander suggest, the reference to the threat or use of force in Article 19(2)(a) “is wide enough to encompass threats directed against States other than the coastal State”. This is also likely the proper interpretation of Article 19(2)(a) when considered in conjunction with Article 301. 

Article 301 provides that States Parties, when exercising their rights under UNCLOS, must refrain from any threat or use of force in any manner inconsistent with the principles of international law embodied in the UN Charter. Accordingly, the exercise of the right of innocent passage is subject to Article 301, which restricts any such threat or use of force without limiting the restriction to threat or use of force against the coastal State. There is nothing that suggests passage only becomes non-innocent when the activities specified in Article 19(2)(a) are directed towards the coastal State and it would be artificial to read in such a requirement in the interpretation of Article 19(2)(a).        

Further, Articles 19(2)(a) and 301 UNCLOS emulate the language in Article 2(4) UN Charter on the prohibition of the use of force, which is an obligation erga omnes (See Ragazzi). The erga omnes nature of the prohibition suggests it is in the interest of any and all States to ensure compliance with this obligation. Therefore, any coastal State should be allowed to interrupt a vessel which is in breach of this obligation erga omnes pursuant to Article 25 UNCLOS (see Petrig). Moreover, there is no question of discrimination under Article 24(1)(b) UNCLOS; when interrupting the passage of such a vessel, the coastal State is not discriminating in form or in fact against a ship of a certain State or ship carrying cargoes to a certain State but “discriminating” (if this is even the appropriate word) against vessels in breach of an obligation erga omnes. 

Final Remarks: The Proper Question Under Article 19(2)(a) UNCLOS

As Article 19(2)(a) covers activities which violate the principles of international law embodied in the UN Charter, the question then becomes one of threshold: If a State is found to be violating the principle of self-determination (as the ICJ did in relation to Israel’s violation of the right of the Palestinian people to self-determination), when would a vessel transporting military equipment to that State be regarded as complicit or also engaged in the threat or use of force in violation of self-determination? This question, which is not the focus of this piece, is discussed in the legal opinion of ASCOMARE and is independent of the arguments made above. Regardless of what the threshold is or should be for a vessel to be regarded as violating principles of international law embodied in the UN Charter, it is not true that the violation must be directed at the coastal State for the vessel to fall outside the scope of innocent passage.