CIL Research Associate Eduardo Cavalcanti de Mello Filho had his post ‘Can Coastal States Interrupt Foreign Passage in Their Territorial Seas in Response to Non-Compliance with Human Rights Obligations? A Response to the ASCOMARE Legal Opinion’ published in the Opinio Juris blog.

The ASCOMERE opinion examines the obligations of flag States and coastal States—particularly in the territorial sea—with respect to vessels transporting, among other things, armaments to Israel, potentially contributing to international crimes and other violations of international law, including human rights.

Agreeing with ASCOMARE’s position on flag State responsibilities, he offers a different perspective on the regime of innocent passage through the territorial sea. ASCOMARE argues that such passage is non-innocent and that coastal States not only may but must interrupt it under the law of State responsibility.

In his response, he explains that non-innocence generally encompasses activities that do not have a direct bearing on passage and actually take place in the coastal state's territorial sea. Thus, it is an objective test aimed at the protection of the coastal State, not a subjective assessment of a ship’s broader mission.

That said, Eduardo argues that this does not leave coastal third States powerless to act against arms shipments potentially enabling international crimes. I suggest that the law of countermeasures may offer a lawful pathway. In particular, I allude to the detention of the Grace 1 tanker by the UK off Gibraltar in 2019 to enforce US and EU sanctions against Syria.