The New and Continuing Debate about Innocent Passage Rights

Introduction

Closely attached to freedom of navigation on the seas, the international legal right of innocent passage has long history. Wording in the relevant international treaties not all that helpfully directs that passage of a foreign vessel in the territorial sea “is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.” Despite the history and unhelpful wording about innocent passage, there is a lack of clarity of what constitutes innocent/non-innocent passage and whether this is a feature of change circumstances. Questions have been raised in recent years as regards vessels carrying spent and/or enriched nuclear materials. The innocent passage topic has arisen for the speaker in terms of a little known Canada – U.S. “dispute” on the Atlantic coast and the potential passage of LNG tankers through Canadian waters. More broadly, what is interesting is the lack of “cases” or even “situations” over the decades where there has been a public dispute between States respecting whether a vessel has or has not engaged in a passage that is innocent/non-innocent. Why is this?

About the Speaker

Professor McDorman joined the Faculty of Law in 1985 and was promoted to Professor in 2001. His teaching areas include public international law, international trade law, international ocean and environmental law, and private international law (conflicts of law). He taught Canadian constitutional law for many years and has also taught Canadian environmental law and comparative Asian law. He has a cross-appointment with the Department of Geography and is an Associate of the Centre for Asia-Pacific Initiatives. Professor McDorman has been a visiting professor at institutions in Thailand, Sweden, the Netherlands and Canada. He has over 100 publications in the areas of ocean law and policy, international trade law and comparative constitutional law. Since 2000, he has been the editor-in-chief of Ocean Development and International Law: The Journal of Marine Affairs. He has undertaken a variety of projects for the Food and Agriculture Organization of the United Nations, including: the drafting of legislation, conducting workshops and report writing on fisheries and fisheries trade. He has also written reports for the governments of Canada, Quebec and British Columbia. From 2002 to 2004, Professor McDorman was Academic-in- Residence with the Bureau of Legal Affairs of the Department of Foreign Affairs and International Trade in Ottawa. In the spring of 2007, he was the Fulbright Visiting Chair in Canada-U.S. Relations at the Woodrow Wilson International Center for Scholars in Washington, D.C.