Prevention, transit and innocent passage under the Arms Trade Treaty

This paper explores the interaction of the Arms Trade Treaty with the right of innocent passage as established by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It notes that while coastal States Parties are obligated under UNCLOS not to hinder innocent passage by foreign-flagged ships through their territorial seas, States Parties are also required under Article 9 of the ATT to regulate transit where feasible and necessary. Moreover States Parties are also obliged by Article 6 of the ATT not to authorise transfers of conventional arms where it is known that the arms in question would be used inter alia to commit genocide or war crimes.

This paper considers how these various obligations should apply and argues that in many cases the coastal State Party will be able to reconcile the absolute obligations of ATT Article 6 with the right of innocent passage under UNCLOS. Where this is not the case, however, the paper concludes that a State Party’s obligations under Article 6 of the ATT will take priority over granting the right of innocent passage.

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“a transit State Party that permits a transfer of covered items that falls within the ambit of Article 6.3 has more than just secondary responsibility… the transit State commits a direct violation of a primary rule of international law under the ATT”

Cynthia L Ebbs, James Upcher