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International straits: still a matter of contention?

Chapter


Abstract


  • 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.

Publication Date


  • 2012

Citation


  • Kaye, S. (2012). International straits: still a matter of contention?. In K. Bannelier, T. Christakis & S. Heathcote (Eds.), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (pp. 149-163). London: Routledge.

International Standard Book Number (isbn) 13


  • 9780415605977

Scopus Eid


  • 2-s2.0-84919554413

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/1425

Book Title


  • The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case

Start Page


  • 149

End Page


  • 163

Place Of Publication


  • London

Abstract


  • 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.

Publication Date


  • 2012

Citation


  • Kaye, S. (2012). International straits: still a matter of contention?. In K. Bannelier, T. Christakis & S. Heathcote (Eds.), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (pp. 149-163). London: Routledge.

International Standard Book Number (isbn) 13


  • 9780415605977

Scopus Eid


  • 2-s2.0-84919554413

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/1425

Book Title


  • The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case

Start Page


  • 149

End Page


  • 163

Place Of Publication


  • London