Bernaerts' Guide _UNCLOS 1982
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Book page 28-29

Section: Part II, Articles 2-33

 This chapter deals with the question as to what extent the sovereignty[1] of a coastal state in its Passage through Territorial Sea - UNCLOS 1982territorial sea may be restricted or set aside to permit unhindered passage of foreign vessels through this zone.
Figure enlarable (see also below)

In its attempt to find an acceptable solution to the conflict of interests inherent in this question, the Convention uses the concept of innocent passage[2]. The term "innocent passage" is vaguely described rather than precisely defined. Transitory navigation through the territorial sea -passage[3] - must not be prejudicial to the peace, good order or security of the coastal state[4]. A catalogue of activities[5] can be used as a guide in determing whether passage is innocent or not. With the exception of a general clause which reads, "any other activity not having a direct bearing on passage",[6] the clauses cover activities which pose a serious and unacceptable threat to the coastal state (e.g., practice with weapons, wilful and serious pollution). The general clause must be read with this in mind and applied only in the case of a threat which, while not specifically listed, would be of a weight equal to that of the activities given. In addition, the general term "innocent passage" must be interpreted and applied in the light of national law which has been implemented by the coastal state. Every coastal state can adopt laws regarding the safety of navigation, laying of submarine cables, resources, fishing, environmental protection, scientific research, prevention of infringement of customs, fiscal, immigration, or sanitary laws[7] and prevention of pollution[8] as well as implement sea lanes and traffic separation schemes[9] or suspend temporarily the right of innocent passage in specified areas of its territorial sea[10], subject only to the restriction that any such measures must be in conformity with the Convention and international law relating to "innocent passage"[11]. The sovereignty of the coastal state in establishing law is also limited to the extent that the imposed requirements may not have the practical effect of hampering, denying, or impairing the right of innocent passage[12] or discriminate against the ships of any state or against ship's carrying cargoes to, from, or on behalf of any state[13].  

[1] Art. 2
[2] Art. 17; Part II, Sec. 3 ,   
[3] Art. 18 ,    
[4] Art. 19, Para . 1,   
[5] Art. 19, Subpara. 2 (a-1) ,   
[6] Art. 19, Subpara. 2 (1) ,   
Art. 21 ,
[8] Ibid; Art. 211, Para . 4 ,   
Art. 22 ,   
Art. 25, Para.3 ,    
[11] Art. 21, Para 1 ,  
[12] Art. 24, Subpara. 1 (a) ,   
[13] Art. 24, Subpara. 1 (b) ,    
[14] Art. 18, Para . 1 ,
[15] Art. 18, Para . 2 ,   
[16] Art. 18, Para 2 ,    
Art. 27 Subpara. 1(a-b) (Art. 27, Para. 5; Art. 73; Art. 220)     
[18] Art. 27, Subpara. 1 (d) ,      
[19] Art. 27, Subpara. 1 (c) ,    
Art. 27, Para.2; Art. 28, Para . 3;    
[21] Ibid ,    
Art. 111  

Furthermore, the concept of innocent passage does not apply to ships which are only present in the territorial sea, however innocent such presence might be. As the term itself states, the foreign vessel must be in passage, i.e., in transit through the territorial sea between any two points not in this zone[14] and the passage must be continuous and expeditious[15] a condition which does not, however, exclude stops for navigational purposes and other acceptable reasons[16]. Even if these conditions have been fulfilled, there remain exceptions to the right of innocent passage with respect to criminal and civil jurisdiction of the coastal state on foreign vessels, which can be summarized as follows: a coastal state may not exercise its jurisdiction on board a foreign vessel unless there is a serious threat to the coastal state[17], measures for the suppression of drug traffic are necessary[18], requests for aid have been made[19], or there is a particular situation in which the vessel has left the internal waters of the coastal state[20] and is still in the territorial sea and action by the coastal state is warranted[21].  If the vessel cannot be stopped in the territorial sea, further action may be taken in accordance with the provisions for hot pursuit[22]  

[1] Art. 2[2] Art. 17; Part II, Sec. 3 ,    [3] Art. 18 ,    [4] Art. 19, Para . 1,   [5] Art. 19, Subpara. 2 (a-1) ,    [6] Art. 19, Subpara. 2 (1) ,   [7] Art. 21 ,   [8] Ibid; Art. 211, Para . 4 ,   [9] Art. 22 ,   [10] Art. 25, Para.3 ,    [11] Art. 21, Para 1 ,   [12] Art. 24, Subpara. 1 (a) ,    [13] Art. 24, Subpara. 1 (b) ,    [14] Art. 18, Para . 1 ,    [15] Art. 18, Para . 2 ,    [16] Art. 18, Para 2 ,    [17] Art. 27 Subpara. 1(a-b) (Art. 27, Para. 5; Art. 73; Art. 220) ,    [18] Art. 27, Subpara. 1 (d) ,      [19] Art. 27, Subpara. 1 (c) ,    [20] Art. 27, Para.2; Art. 28, Para . 3;     [21] Ibid ,    [22] Art. 111


Further Readings        - Navigation. (Commentary) ,     - Military Use. (Commentary)  

Concept "Innocent Passage" - UNCLOS 1982

Next page 30-31

Book published:
1988 Fairplay/UK,
2005 (reprint) by

Trafford Publishing,
1663 Liberty Drive Suite 200
Bloomington, IN 47403, Canada.

329 pages, ISBN 1-4120-7665-x;

Available via online-contributer 




Online – Edition

Bernaerts' Guide to the 
1982 United Nations
Convention on the Law of the Sea


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Bernaerts Guide -UNCLOS 1982

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Preface of the reprint in 2005

More than 15 years ago FAIRPLAY PUBLICATIONS Ltd, Coulsdon, Surrey, England, published the book "Bernaerts' Guide to the Law of the Sea - The 1982 United Nations Convention". The guiding potential of the book to find access to the Law of the Sea Convention is still given. Internet technology and publishing on demand invite to provide the interested reader and researcher with this tool again. Only the Status of the Convention (ratification etc) has been updated and instead of the Final Act, the book edition includes the "Agreement relating to the Implementation of Part XI of the United Nations Convention of the Law of the Sea" of 1994. The corresponding web site neither includes the text of the 1982 Convention, nor the Agreement of 1994. The thorough Index of the 1988 edition is reproduced without changes.
Arnd Bernaerts, October 2005,
Comments 1988-1990
___"an invaluable guide to the understanding and implementation of the 1982 United Nations Convention on the Law of the Sea"
Satya N. Nandan, U.N. Undersecretay, in: Book Foreword, 1988
__"clearly presented" R.R. Churchill, in: Maritime Policy & Management 1989, p. 340
__"the (book's) concept, which is so wonderful simple, is exactly the factor which makes the book so useful for both the novice as well as the person with extensive experience"
M. Bonefeld, in: Verfassung und Recht, 1989, pp. 83-85
__"the work contains much useful background information…." R.W. Bentham, in: Journal of Energy & Natural Resource Law, 1989, p. 336
__"Bernaerts has saved us a struggle" JG, in: Fairplay Shipping Weekly Magazin, 13th October 1988, p. 33
__"this is probably the best edition on the Convention to put into the hands of students"
A.V. Lowe, in: Int'l and Comparative Law Quarterly 1990, p. 16
__"it will be an invaluable reference tool and should sit on the book shelves of policy makers and all others who are involved in maritime matters"
Vivian I. Forbes, in: The Indian Ocean Review, May 1990, p.10

Bernaerts’s Guide to the 1982 United Nations Convention on the Law of the Sea

FOREWORD of the 1988 edition
by Satya N. Nandan
Special Representative of the Secretary-General of the United Nations for the Law of the Sea Office for Ocean Affairs and the Law of the Sea

Revolutionary changes have taken place in the International Law of the Sea since 1945. The process of change was accelerated in the last two decades by the convening in 1973 of the Third United Nations Conference on the Law of the Sea. The protracted negotiations, spanning over a decade, culminated in the adoption of the United Nations Convention on the Law of the Sea in 1982. By 9 December 1984, the closing date for signature, 159 signatures were appended to the Convention, the largest number for any such multilateral instrument in the history of international relations.

The Convention, which was adopted as a comprehensive package, introduced a new equity in the relationship among states with respect to the uses of the ocean and the allocation of its resources. It deals, inter alia, with sovereignty and jurisdiction of states, navigation and marine transport, over flight of aircraft, marine pollution, marine scientific research, marine technology, conservation and exploitation of marine living resources, the development and-exploitation of marine non-living resources in national and international areas, and unique provisions dealing with the settlement of disputes concerning the interpretation and application of the new regime.

There is no doubt that as we approach the 21st century, more and more attention will be paid to the uses of the oceans and the development of their resources. It is important, therefore, that these developments should take place within a widely accepted legal framework so that there is certainty as to the rights and obligations of all states. The United Nations Convention on the Law of the Sea provides that framework. It establishes a standard for the conduct of states in maritime matters. It is thus a major instrument for preventing conflicts among states.

The convention and its annexes contain over 400 articles. For many it may be a formidable undertaking to grasp the substance and structure of it without making a considerable investment in time and energy. Mr Bernaerts' guide, therefore, is a welcome addition to the growing body of literature on the convention. It provides a most useful reference tool which will benefit administrators and policy makers, as well as scholars. It makes the convention accessible to the uninitiated and refreshes, at a glance, the memories of the initiated. With meticulous references and graphic presentations of the provisions of the convention, Mr Bernaerts has given to the international community an invaluable guide to the understanding and implementation of the 1982 United Nations Convention on the Law of the Sea.
April 1988

PREFACE (extract) of the 1988 edition

The reader will be aware that the 1982 United Nations Convention on the Law of the Sea is the first constitution of the oceans, a ground-breaking document in many respects. He or she might also have made the discovery that the full text of the Convention is immediately accessible only to experts. If the Convention were only a treaty consisting of straightforward technical regulatory provisions, it could be left to them with a clear conscience. But the Convention is to a large extent a political document and, as such, is expected to influence significantly the development of relations among the states in the world community; for this reason, a wide-spread knowledge of the scope, goals, and regulatory framework of the Convention can only serve to further the aims of the document and would surely follow the intentions of the many men and women who made this Convention their life-work, such as Arvid Pardo (Malta), Hamilton Shirtey Amerasinghe (Sri Lanka), Tommy T. B. Koh (Singapore), and Satya N. Nandan (Fiji), to name only a few of the hundreds who worked on the preparation of this Convention.
As the reader uses the Guide (Part II), he will find that many provisions of the Convention are much easier to understand if one knows the basic framework within which a particular regulation is placed. The Guide aims to provide this framework, with reference to the text of the Convention and, in addition, t& the supporting Commentary of Part III, which describes the overall context of the major terms arid concepts. The Introduction of Part I sketches the historical background of the Convention and some of the general effects. A detailed index at the end of the book will be of assistance in finding specific subjects.


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