The Regime of Straits in International Law

By Bing Bing Jia | Go to book overview

5
The Regime of Passage for International Straits prior to UNCLOS III

1. INTRODUCTION

The general regime of passage for international straits prior to UNCLOS III, which was convened in 1973, will be. examined in this Chapter. The starting point is that international straits always involve the territorial sea in which there has long been established a suspendable right of innocent passage for foreign ships. The question which suggested itself was whether the right of passage through straits had a different content, and, in particular, whether it was suspendable or not.

This Chapter progresses along two lines of thought. On the one hand, an historic exposition of the practice of innocent passage in the territorial sea is necessary. The concept of innocent passage developed with the clarification of the nature of the territorial sea,1 which was reliant upon the evolving doctrine of sovereignty.2 As the territorial sea might include straits as well as other arms of the sea,3 the rule of innocent passage obtained in such affected straits. Problems have arisen concerning the meaning of passage and the criteria of innocence.4 Although the right of innocent passage for merchantmen was founded in customary law,5 having transcended changes since 1945 that had called for the revision of the existing law of the sea6, the right for warships has been controversial. Furthermore, it seems that practice had not always been explicit as regards the nature of the right of passage as applied in international straits. For some evidence pointed to a tendency to assimilate such straits to the high seas they connected rather than the territorial sea in which they fell. This required clarification, especially after the criteria for international straits were formally identified by the International Court of Justice in the judgment

____________________
1
See Vattel, bk. ii, ch. 10, 153, s. 132. Cf. [ 1956] i YBILC213, para. 17 (Mr Zourek); 215, para. 33 (Mr Garcia Amador).
2
Cf. the Right of Passage case (Merits) [ 1960] ICJ Rep. 43-4. See also, Pufendorf, bk. iv, ch. v, ss. 8-10, 563-7; Vattel, bk. i, ch. 23, s. 291, 109.
3
Cf. Ch. 2, sect. 2.2, and Ch. 4, ss. 2-4, above.
4
Cf. Ch. 7, sect. 2.2, below. See also McNees, 196-204; Cundick, 108-9; Moore ( 1980), 78, 116; Robertson ( 1980), 803-5, 812 ff.
5
Cf. Fauchille, 1088-9; Jessup, 120; Oppenheim ( 1955), i. 493, s. 188; Sorensen ( 1960),186. See also Marín López, 46-7; Mor, 65; Ngantcha, 198.
6
Cf A/AC.138/SR.61-7 ( 1971),60 ( Algeria); A/AC.138/SR.77-89 ( 1972),19 ( Chile). Ago, 35 ff., paras. 1, 8, 26. See also O'Connell ( 1982), i. 1-20; Churchill and Lowe, 3-4.

-78-

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