Innocent Passage through the Schengen Area .....

[Baggywrinkle]

There have been a number of posts suggesting using the IMO innocent passage rules to stop the Schengen clock.

I finally found the bit of video about innocent passage as a way of avoiding having a Schengen clock ticking, found it interesting so thought I'd post it.

These are the comments of the skipper who went from Gib to Montenegro using innocent passage ... and a few other Schengen shufflers.

.... the real drawback IMO is that you can anchor, but cannot go ashore when on innocent passage.

Here are the IMO rules on innocent passage ...

The passage of the vessels should be innocent that it must not prejudice the peace, good order or security of the Coastal State, there is no precise definition of the term “Innocent Passage” however the convention stipulated the activities upon which the passage cannot be considered as an innocent one, namely;
(a) where the foreign shipengages in activities constitutes a threat or use of force against the State`s sovereignty,territorial integrity or political independence;
(b) exercise or practice weapons of anykind;
(c) collecting information to the prejudice of the defense of the Coastal State;
(d) committing any act of propaganda that prejudice the defense or security of the Coastal State;
(e) the launching, landing or taking on board of any aircraft or military device;
(f) contravene the Laws and Regulations of the Coastal State govern custom, fiscal, immigration, or sanitary;
(g) commits any act of willful and serious pollution contrary to the Convention;
(h) any fishing activities;
(i) carry out research and survey activities;
(j) any act aim to interfere with the communication system, and finally
(l) any other activity not having direct bearing on passage.

The provision of art 19 (1) (l) which states; “any other activity not having a direct bearing on passage” gives the Coastal State discretionary power to decide what activity that prejudice its peace, good order, safety and security. In return any state can consider many activities not innocent even though they may be innocent.

 

[LittleSister]

.... the real drawback IMO is that you can anchor, but cannot go ashore when on innocent passage.

I don't know, but imagine the circumstances in which anchoring may constitute 'innocent passage' are highly debatable.

There may be some case law on the matter, but that will probably be related to commercial shipping.

I suspect you would get a variety of opinions from both people on this forum and, more importantly, from officials of countries you may be passing through. Trying to persuade the latter that your not disinterested opinion is more valid than theirs, trough a language in which you are not fluent, is likely to be challenging!

 

[AndersG]

It's a convention and not a law. The law is what every country says it is. Trying to use a convention as a defence would only work if the convention is incorporated in law in the country in question.

 

[dunedin]

This seems to come up periodically, but it would require a lot of confidence - and funds if/when taken to court - to try to claim rights of Innocent Passage for a trip which involves anchoring.

Just because one boat got away with it doesn’t constitute proof that it is a legal means of doing this. One member of this forum has boasted of staying within Schengen area for nearly 2 years without getting caught out. But that didn’t prove a legal means of doing so - just some are lucky and don’t get caught (the consequences of which could be severe).

RYA have an article on this - and point out that UNCLOS rights exclude inshore waters - and the way these are defined probably rules out any feasible anchorages anyway - Law of the Sea and Coastal State | boating abroad | RYA

 

[Baggywrinkle]

I don't know, but imagine the circumstances in which anchoring may constitute 'innocent passage' are highly debatable.

There may be some case law on the matter, but that will probably be related to commercial shipping.

I suspect you would get a variety of opinions from both people on this forum and, more importantly, from officials of countries you may be passing through. Trying to persuade the latter that your not disinterested opinion is more valid than theirs, trough a language in which you are not fluent, is likely to be challenging!

I'm also sure there are numerous opinions and anecdotal examples both for and against it's use, and I certainly agree that going up against officialdom in a foreign country puts you at a distinct disadvantage, and has the potential for consuming an awful lot of your time and money.

 

[Kelpie]

I know a couple of boats who have relied on this proviso and had no trouble at all. One of them, Intrepid Bear (who have a YouTube channel), were boarded at 4am by customs whilst anchored just outside the Mar Menor, but the fact that they were out of Schengen time never came up- it was a routine inspection for smuggling.

The other boat I know sailed directly from Tunisia to Ibiza and couldn't find anybody to check them in. They were told by police etc that so long as they stayed within 10km of their boat they didn't need to stamp in. Which I don't think has any basis in law

 

[Graham376]

There have been a number of posts suggesting using the IMO innocent passage rules to stop the Schengen clock

.... the real drawback IMO is that you can anchor, but cannot go ashore when on innocent passage.

Here are the IMO rules on innocent passage ...

Where did you find the rule which allows anchoring while on innocent passage?

Uncloss says this -
Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. A vessel in innocent passage may traverse the coastal state’s territorial sea continuously and expeditiously, not stopping or anchoring except in force majeure situations.

Over the years, we have been boarded off the coasts of France, Spain and Portugal and in every case, passports were inspected. This year when entering Gib by land, I handed my passport over and was asked why no stamps in it. When I explained I had residence, was asked to provide residence card to prove it.

 

[Kelpie]

Where did you find the rule which allows anchoring while on innocent passage?

Uncloss says this -
Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. A vessel in innocent passage may traverse the coastal state’s territorial sea continuously and expeditiously, not stopping or anchoring except in force majeure situations.

Over the years, we have been boarded off the coasts of France, Spain and Portugal and in every case, passports were inspected. This year when entering Gib by land, I handed my passport over and was asked why no stamps in it. When I explained I had residence, was asked to provide residence card to prove it.

Interesting, looks like my friends were very lucky then.

 

[Baggywrinkle]

I know a couple of boats who have relied on this proviso and had no trouble at all. One of them, Intrepid Bear (who have a YouTube channel), were boarded at 4am by customs whilst anchored just outside the Mar Menor, but the fact that they were out of Schengen time never came up- it was a routine inspection for smuggling.

The other boat I know sailed directly from Tunisia to Ibiza and couldn't find anybody to check them in. They were told by police etc that so long as they stayed within 10km of their boat they didn't need to stamp in. Which I don't think has any basis in law

It was the crew of Intrepid Bear that were featured in the video I linked above ... it took them 28 days to get form Gib to Montenegro, they had provisioned for 10 days, and they said they probably wouldn't be leaving the med if it wasn't for Schengen - so innocent passage didn't really work for them. They even refueled on passage which would give the authorities all the ammo they need to fine them (or worse) if they were so inclined. On their own YouTube channel they admit they were going stir crazy by the time they got to Montenegro.

Your friends were lucky IMO ...

Where did you find the rule which allows anchoring while on innocent passage?

Uncloss says this -
Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. A vessel in innocent passage may traverse the coastal state’s territorial sea continuously and expeditiously, not stopping or anchoring except in force majeure situations.

Over the years, we have been boarded off the coasts of France, Spain and Portugal and in every case, passports were inspected. This year when entering Gib by land, I handed my passport over and was asked why no stamps in it. When I explained I had residence, was asked to provide residence card to prove it.

I guess the argument is that you need to seek shelter in periods of bad weather, and perhaps bad weather is enough to count as "force majeure"? I doubt it personally, as it is to be expected and if you have planned anchor stops into your route then it is not innocent passage IMO. We need more people to try it ... as some people's purpose in life is to serve as an example to others I guess.

I've had the same experience as you with border guards - in Munich airport, when handing over a brand new, unstamped, UK passport to travel to the UK. They immediately asked where the entry stamp was, but in my case German citizenship and a German passport sorted the situation out.

Claiming innocent passage and anchoring in a country I had not checked into is not something I would do personally. When I cruised in Croatia before they joined the EU, I regularly checked out/in to reset my temporary admission - it was made absolutely clear by the authorities that I was not allowed to anchor overnight in Croatian waters while checked out, and I was expected to sail out of sight of the port authorities - they would turn a blind eye if I didn't actually leave Croatian waters before checking in again, but that was as far as it went. The crew of Intrepid Bear said fines are levied in Croatia, Albania, and Montenegro if you attempt to use innocent passage without checking in.

IMO, innocent passage to avoid using Schengen time is viable if you don't stop and make a passage of more than a few days ... it might help, but both the check-out and check-in days count as Schengen days, so I'm not sure it is worth it - you basically have to travel for more than 4 days to counter the fact than two Schengen days have already been wasted checking out and in again.

Ultimately, innocent passage is a risk and it is up to each skipper to do their own assessment of risk vs consequences.

 

[Seven Spades]

I know a couple of boats who have relied on this proviso and had no trouble at all. One of them, Intrepid Bear (who have a YouTube channel), were boarded at 4am by customs whilst anchored just outside the Mar Menor, but the fact that they were out of Schengen time never came up- it was a routine inspection for smuggling.

The other boat I know sailed directly from Tunisia to Ibiza and couldn't find anybody to check them in. They were told by police etc that so long as they stayed within 10km of their boat they didn't need to stamp in. Which I don't think has any basis in law

This rule exists for commercial yachtsmen who are using a Seaman's discharge book. My son who has a British passport will fly to say Antibes upon arrival he is stamped in with his passport, he then proceeds to the port where he is stamped out (he would say he is stamped onto the boat but the Seaman's Discharge book is not actually stamped). He is then able to stay indefinitely but the rules are that you are only allowed ashore on "ships business" which means victualing, maintenance, repairs and eating but does not include tourism and nor is he legally permitted to travel more than 10km from the boat.

Technically there is a debate that this should also apply to all yachtsmen as it did before Schengen and before the EEC, but since Shengen it is applied on an ad-hoc basis to those without a Seaman's discharge book. From memory I think that Malta does not stamp you into Schengen unless you ask them to. My guess is that if you arrive from abroad and go to a border point they will stamp your passport if you ask them to without question,. The difficulty is taking the risk of arguing that you do not need to and meeting someone who interperts the rules differently. To be safe apply for a Seaman's Discharge book if you think you meet the criterion.

If you have not seen one a Seaman's discharge book looks just like agreen Passport.

 

[Bouba]

There have been a number of posts suggesting using the IMO innocent passage rules to stop the Schengen clock.

I finally found the bit of video about innocent passage as a way of avoiding having a Schengen clock ticking, found it interesting so thought I'd post it.

These are the comments of the skipper who went from Gib to Montenegro using innocent passage ... and a few other Schengen shufflers.

.... the real drawback IMO is that you can anchor, but cannot go ashore when on innocent passage.

Here are the IMO rules on innocent passage ...

Your definition of innocent passage doesn’t say anything about disembarking (unless the purpose is to ferment regime change)....in fact I would argue that the no pollution rule would compel you to go into port to have your black tank emptied by onshore facilities

 

[Baggywrinkle]

Your definition of innocent passage doesn’t say anything about disembarking (unless the purpose is to ferment regime change)....in fact I would argue that the no pollution rule would compel you to go into port to have your black tank emptied by onshore facilities

It's not my definition of innocent passage, it's taken from Article 19, "Meaning of innocent passage" ... Link: UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

2.g, of Article 19 prevents you unloading persons contrary to the immigration laws and regulations of the coastal State. Most states are clear that if you want to go ashore or spend time in their country, then you enter with a yellow flag at the nearest port of entry, you pass through customs and police checks, pay whatever fees are due and then you are granted entry to the country - at that point you can remove the yellow flag and replace it with the courtesy flag of the state you are now in. Paperwork to prove you and your boat are legally in the country is also provided. If anyone skips all this, and instead just anchors and heads ashore then they have basically only one legal way to be there, and that is if they are claiming asylum, and they should hand themselves over to the authorities immediately - just like the rubber boat passengers entering the U.K.

Maybe discharging holding tanks into the sea would also contravene the laws of the coastal state, as would fishing. If sailing in the waters of a particularly nasty regime then uploading crowd-sourced depth info from your plotter could be seen as carrying out survey activities, or worse, an act aimed at collecting information to the prejudice of the defence or security of the coastal State. As already mentioned the "any other activity not having a direct bearing on passage." is open to interpretation by the coastal State, so whichever way you look at it, any leisure sailor (tourist) caught in the waters of a coastal State without following the correct procedures could end up on the wrong side of the law.

... and who knows what they might think of taking pictures with a drone (the launching, landing or taking on board of any aircraft) to record your holiday?

Each skipper needs to weigh all this up and decide for themselves if it is worth it trying to use innocent passage as a way of avoiding time in Schengen. My thoughts on this are in red, would welcome the opinion of anyone with legal knowledge of how these are applied in the real world.

Article 19​

Meaning of innocent passage​

1.

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 this Convention and with other rules of international law.

2.

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; - could be contravened by crowd sourcing depth info with your Navionics based plotter. (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; - could be contravened by launching a drone with a camera (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; - would be contravened on multiple counts by going ashore without passing through customs and immigration checks (h) any act of wilful and serious pollution contrary to this Convention; - would be contravened by discharging holding tanks in breech of local laws (i) any fishing activities; - pretty obvious, don't get caught with fishing lines out (j) the carrying out of research or survey activities; - could be contravened by crowd sourcing depth info with your Navionics based plotter. (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 coastal states get-out clause to fine you if they feel like it.

 

[Baggywrinkle]

Update: Malta looks like a place where you can stay without using Schengen time, guess it's a good way for Malta to profit from non-EU visitors and it probably is tolerated because there is no open land border with any other Schengen state - so anyone in Malta can't slip through open borders into other countries.