The Regime of Straits in International Law

By Bing Bing Jia | Go to book overview

9
Conclusions

Historically, the evolution of rules for passage through straits might have commenced long before the concept of international straits was formulated. However, this book deals with the concept before it turns on the development of the regime of passage, because the crystallization of the legal regime for international straits came after the determination of the criteria of identification in the judgment in the Corfu Channel case. There were a number of treaties in existence before 1949, and they adequately dealt with the problem of straits so that the search for a general regime of international straits, especially in time of peace, was not felt necessary. For the importance of the subject-matters of the treaties -- i.e. a few narrow straits -- in both strategic and navigational terms had given rise to an exacting test of essentiality which few other straits could meet. Since 1949 the treaties have been regarded as exceptions to general regimes established by multilateral treaties.

The general right of passage through international straits was rooted in the customary law that applied in the context of the territorial sea. This analogy resulted from the fact that adjacent seas had been subject without exception to the coastal sovereignty, which was limited by the custom of innocent passage. Thus, a considerable body of State practice and jurists had long regarded straits not regulated by treaty as part of the maritime territory, susceptible to the regime of territorial waters. This trend was prevalent both before and during the 1930 Hague Codification Conference, and survived the conference.

The 1949 Corfu Channel case concerned a strait which, situated within the territorial seas of small coastal States, had been traversed mainly by merchantmen and flotillas of maritime powers. The Court had no difficulty in identifying the decisive criterion for, and in clarifying the customary right of passage obtaining in, international straits. The subsequent practice and jurists have generally accepted the judgment. At UNCLOS I, the geographical criterion was, however, modified, in the face of strong opposition, to embrace the special case of straits leading to the territorial sea of a foreign State. There was general agreement at UNCLOS I on the distinction between the general right of passage through straits and the existing treaties. The period between 1958 and 1973 witnessed a slowly growing body of practice conforming to the customary right of non-suspendible innocent passage as referred to in Article 16(4) of the 1958 Territorial Sea Convention. As the provision still reflected the previous trend in this area that subsumed the problem of straits under the compendious regime for the territorial sea, lawful control of, and illegal

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