Right of Innocent Passage
Implication as per Montreux Convention

Elnura Orucova
Associate Lawyer
[email protected]

Customary doctrine of the law of the sea empower the coastal state to adopt laws and regulations in respect to regulating innocent passage and navigation, for example, for the purposes of:

-The safety of navigation and marine traffic, including sea lanes and traffic separation schemes for all ships and, in particular, tankers, nuclear powered ships, ships carrying nuclear or other inherently dangerous or noxious substances or materials;

-The protection of cables and pipelines;
-The conservation of the living resources of the sea;
-The protection and preservation of the environment;
-The prevention, reduction and control of pollution, etc.

Meaning of Innocent Passage

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with Montreux Convention and with other rules of international law.

Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) 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;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
(d) any act of propaganda aimed at affecting thed efence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) 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;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.

The Turkish Supreme Court addressed the issue of jurisdiction regarding foreign-flagged vessels passing through the Straits in a recent decision; if, (i) the foreign flagged vessel in question was enjoying the right of innocent passage under the Montreux Convention; (ii) the Turkish courts do not have jurisdiction over her while passing through the Turkish Straits in transit and (iii) the fact that the vessel dropped anchor at one of the anchorage areas merely for the purpose of replenishing bunkers did not mean that her transit was broken.

This is a welcome ruling and brings clarity to the subject of the jurisdiction of the Turkish courts over foreign flagged vessels intending to use the Turkish Straits in transit alone but which are forced to anchor due to congestion and to await their turn to use the waterways.