Abstract
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In 1946, when the incident that gave rise to the litigation in the Corfu Channel
case occurred, almost all international transportation across the world's seas
and oceans was by sea. Although air transportation had received a huge boost
as a result of its increasing use during World War II, and air power had
become a new and vital important element in the armed forces of the victorious
allies, ships and shipping were still of tremendous importance. The vast
bulk of international trade over water was carried by ships, and international
peace and security were directly affected by the ability of warships to transit
freely on the world's oceans.
The Corfu Channel case, concerned as it was with the access of warships,
and, by extension, other vessels, to the territorial sea of other States, was of
tremendous significance to the facilitation of freedom of navigation. The
confirmation of the International Court of Justice that warships had a right of
innocent passage through the territorial sea of a coastal State along a strait
used for international navigation was a landmark in the law of the sea. The
decision ensured that the International Law Commission's consideration of
the law of the sea, in the years leading up to the first large international
conference on the subject since W odd War II, would incorporate provisions
dealing with rights of navigation within the territorial sea. Before the war, at
the 1930 Hague Conference, no consensus had emerged on the right of innocent
passage for warships. This lack of consensus was effectively neutralised
by the Court's decision in the Corfu Channel case, and ensured the ILC would
support the concept. This in turn saw the incorporation of provisions dealing
with international straits in the 1958 Convention on the Territorial Sea and
Contiguous Zone, and subsequently in the 1982 United Nations Convention
on the Law of the Sea.
In the first decade of the twenty-first century, it is still true that the
vast bulk of international trade over water travels in ships, whether this is
calculated by volume or value. International peace and security are still
directly affected by the freedom of the seas being available to warships.
The ability of the United States to project military power through the
mechanism of the aircraft carrier battlegroup is as important in 2010 as it
was in 1946, albeit that the equipment has changed. A right of passage
through an international strait is still of great importance, and while the law
is more explicit in its nature today than it was in the 1940s, there are still
matters in its interpretation and application which vex the international
community.
This chapter will first briefly consider the development of the regime for
passage through international straits, before turning to the contemporary
regime of transit passage under the Law of the Sea Convention. It will then
move to examine those elements of transit passage which have proven contentious,
namely the obligation not to ham per passage, and the nature of' normal
mode' for ship's passage.