365

WHAT IS INNOCENT PASSAGE?

Peter B. Walker

INTRODUCTION main valid or whether ncw usage is developing, which usage may in time be I\lthou~h iUlernational law tt'xt accepted as customary international writt'rs, as well as the dt'letratt~ to the law. eonfcn'net'S for the et)(lifi:ation of in­ lcrnationallaw, are in /!eneral agreement I··FREEDOM OF TilE thal foreign ships lIlay pass freely The concepl lhat the seas should be throu~h the It'rrilorial walers of a stale, unanimity is lacking as to the spe('ifit~ open to the free use of all peoples is rules which apply. For example, in I\lay hardly a new one. From ancient Roman aud .I une 1967, a major issue in the times on, such an idea has been pro­ claimed. Practice, however, has varied Arah-Israeli war was the maller of iJIIlO­ cent pllssage of Israeli and Israeli-hound considerably from the theory, and for ships through the Gulf of A(Talla. In the last 400 years mankind has been Aug-lIsl J WI7 the Soviet Union denied attempting to reconcile the eompeling the righl of innocent passage 'lhrough interests of states into a workable set of the Vilkitsky Slraits to two U.S. Coast eusloms and rules. Guard iecurellkcrs. The Middle Ages saw the develop­ It is lhc purpO!ie of this paper to ment of the laws of OIcron and the (~:\ plore the origins, Sllllus, lind recent Consolato del Mare. Allhough these t/(!vdo(lmenls in the internalionallllw of codes restalcd thc commonality of innoctmt pllssage of ships lhroul!h the rights under a law of the , indi~idual lerritorial seas of forcil!n countries. Il is states adopted a posilion that continual a timely suhjeet, as the two incidenls use gave them rights ovcr particular sea ciled lIhove allest. In view of the areas. Thus the Adriatic was claimed by modern trend among mllny eounlries in Venice, the by Genoa, and lhe world to claim increasingly wide the four surrounding seas by England. terrilorial seas, innocent passage is tak­ The prohlem of sovereignty over lhe ing on growing imporLanee in the JlllIri­ seas, however, did not arise until 1455 lime inlereourse of nlltions. With the when Pope Nicholas V granted Porlugal haekground of the current internationlll exclusive rights of navigation, fishing, law of innocent passage established, this and trading in the African waters be­ paper will then analyze the conflicting yond Capes Boyador and Non. On nalional claims in the Columbus' return from his first New and Vilkitsky Strails incidenls to deler­ World voyage, the Portuguese king mine whelher the current coneepLs re- maintained that his discovery was in 366 Portuguese waters. Ferdinand and Isa­ law of prize. One chapter was puhlished bella appealed to Pope Alexander V I, separately under tlw title Marl' Ubul/lII who granted to Spain rights in western in l601J. In this brief work Grotim: similar to those already held by made the first formal statement of Portugal. While the papal division of the freedom of the seas as a general prin­ world's oceans betwecn Spain and Por­ ciple of international law. 3 Grotius' tugal was disputed, those two nati~ns basic premise was that "every nation is finally agrced that the dividing line free to travel to every other nation, and should be :~40 leagues wcst of thc Cape to trade with it," which he amplified Verde Islands and should circle the with the observation, "nature has made globe. neither sun nor air nor waves private It. appears that this partition wcnt property; they arc puhlie gifts ... the unchallengcd by most European coun­ sea is common to all, because it is so limitless that it cannot become a posses­ tries, with the noteworthy exception of sion of anyone, and because it is France whose Francis I championed the adapted for the use of all .... ,,4 free use of the seas for French mariners. Maritime practices during the 16th These views were soon contetllt'(1 hy century ranged from exploration and the British who c1ainlC'd mill en('or('('d trade--with the claims of competing exclusive fishing righttl in "British S('as." countries to exclusive enjoyment of Supporting such claims were jurists WiI­ portions of thc seas sometimes ­ limn Welwood and John Seldrn. Wd­ servetl--to outright piracy. Elizabeth I of wood saw thc intimae}' of thc land with England ordained that "Thc usc of the its adjacent sea as requiring national sea and air is common to all; ncither can retention of the sea and its usc for the any title to the belong to any benefit of the people. Selden amplified people or private man, forasmuch as on Welwood's work and validly notcd neither nature nor regard to the public that nothing in the nature of the seas use permitteth any possession there­ prevented either their appropriation or s of. »1 Having the greater maritime claims to sovereign rights tlterrin. Thus power to bring to bear, England's use of is presented the origin of a conflict in the seas was more readily enforceable the interests of nations which exists to than France's. Drake's vic­ this day: the interests in the free use of tories in 15B6 effectively terminated the world's oceans which all nations Spanish hopes for an exclusive use of share versus the individual interest of a western seas, although Spain did cling to statc in protecting its security as well as her claims to exclusive trade rights with economic marine resourecs by cxercis­ her colonies and exclusive navigation of inl! s()vereip:nty and, thcrehy, cxdusiv(~ colonial waters. Although England and control over a helt of water adjacent to France attempted by treaty to acquire its shore$. trade concessions, they never did An aeconlJnodation IJctween such acknowledge that Spain had the power competing positions was aLlcl11ptcu in to bar ships of other nations from l702 by Cornelius van Bynkcrshoek, a American waters.2 judge of the SlIl'renll: Court of Appeal Simultaneous with England's termi­ of Ilolland, who as~('rtcd that "the nation of Spanish exclusivity in western dominion of the land ends where tlw oceans, the Netherlands was attempting power of ,trillS (~nd~," or, "so far a~ to destroy Portugal's monopoly in the cannon balls are projecteu. ,,6 The can­ cast. In support of Dutch claims to non shot distancc was ~pccifieu at one trade in the , Hugo Grotius, sea leaglw lIy Caliani, an Italian jllriHt, in in 1605, wrote a learned treatise on the 17112. The following y(~ar Scerdary (If 367

Stute .I efferson notf~11 in diplolllatie TIll: 19;'1\ (; mu:va Conferelll:e on the corn~spOllllcnce thal thc Iintit which hud Luw of the Slm, however, profiling frolll gailH'd rt'cognitiun alllong nations was the experienel: of Ihe 19:m Clldificulion the lIlaximlllll range of a cannon ball. Confcrence, did reudl sufficient uccord Tlll'rt'a fter t hl' Unilcd States rceo/.,rni1.ed to udopl four convcntions, including a the sea league, or "three gco:,rraphical Convention on the Territorial Sea and miles" as the extent of its territorial sea. Contiguous Zone. It still failed to reach Sudl limit was also recognized hy Grcat abrrcement on a standard width for the Britain, although her early J9th century territorial sea, as did its successor con­ "hovering acts" (which authorized her ference in 1960. to urrest ships outside her territoriul wuh'rs, on Ihc high seus, on suspicion of From these intcrnational conferences smuggling) ran countcr 10 such posilion. for the codi fication of intcrnationallaw By the lall' 191h eentllry the hovcring one particular trcnd is lIpparenL: 1I hrrow­ a~ls had hcen dOIn: away wilh, mill iug \Iumhcr o[ nlltio\l!! IIrc cluiming territorial waters /,rreatcr in breadth tllUn Britain unlJuulificdly ace'~pted the :l·milc limit of her tcrritorial sovcrcignty :l miles. A lI.S. proposlll at the 1%0 llague CO\lferc\lce which would have in the murginal sea.7 estahlished a 6·milc limit to tcrritorial I·'rolll thc time of Grotius into the waters with an additional (HniIe con­ prcscnt century, the free usc of thc scus tiguous zonc [or enforccment of fishing hy ships of all countries has devcloped and other laws failcd of adoptio\l Ity into un internationully acccpted legal o\le vote.9 I\)ost of the \lew, so-eallell principle. Coneontitant with thaL prin­ "emerging nations" havc proclaillled ciple, and developing as u maLII:r of their territorial waters to he 12 miles custlllllury praeLice, is Lhc righL of ships wiae.1o to pass Lhrough thc Lerritorial waters of forcign countries wiLhouL interfcrenee Ilow docs this affcct the maritime hy, or suhjecLion to Lhe jurisdiction of, nations of the world? Cannot thcir ships Lhe liLtoral stnte. Although Lhc conccpL still transit territorial waters of foreign of innoccnL passage is universally uc­ nations in innocent passage? As will hc cepLcd as an abstract principle, Lhe demonstrated in later chapters, a nlltion praeLiee of staLes has not been uniform, may dcny innocent passage to forcign and disagreements exist today on its ships under certain circumstances. Thc implementation. maritime nations, and especially thcir gfforls Lo codify internaLional law shipowners lind shippers of cargo, would began in the 19th century in various prefer to sail entirely on the high seas fields, bUl it was not until the 1920's, whcre ships have an ahsolute right of under lhe direction of the League of passage than to rely on innocent passage Nulions, that an effort was made to through territorial walers where the codify the Law of the Sea in tillle of littoral stllte may, they fear, act caprici­ Iwaee. The Con ference for the Codifica­ ously in denying innocent passagc. With tion of International Law, held aL The many nations now claiming territorial "ague in 1930, culminated several years waters out to a limit of 12 miles (or of scholarly preparution. Although a more), the area of the high seas availahle rcasonahle degree of agreenlf:nt was to such unrestricted, unqualified pas­ reaehcd on oLher matters, induding sage-ncar the shelter and navigationlll innOl'I'nt passage, adoption of a conven­ reference points of land--hus been signi­ Lion failcd because Lhe delegates were ficantly reduced. It is for this reason unuhle to awee on an internationally that the attributes of innocent passage al:I:I:ptuhle widlh of the Jlutiolls' terri­ have become increasingly important to Loriul seus. K the maritime world. 368 ll--NATURE AND ATTRIBUTES 19:m Codification Confen:lwll did not OF INNOCENT PASSAGE ehanleLerizc innocent I'ussuge ali a right, the at'companying eOlllllll'ntury tlid,4 The nature of innoeent pas:;ag<' (ah­ unt! the draft artit'll's produt'ed hy tlw solute or qualified right) is dependent Conferenec specified innoccnt passuge upon the legal status of the waters as aright. 5 The 195B Conferenec made which border the maritime states. lIis­ clear in its discussions and in the Con­ torieally, thcre has been disal,rreement vention on the Terrilorial Sea mill Con­ on such matters. Belying on the Homan tiguous Zone that it was indecd a riM"1 and Grotian concepts that the seas are enjoyed by ships. Articles J 4 through incapahle of appropriation hy anyone or 23 in section III of the J95B Conven­ any nation, one school postulated that tion represented the llgreement of the all of the oceans constitute the high St'as 195B Conference as to the criteria of and that the liLLoral stlltes had only innoeenl passage. limited claims in their marginal waters. To determine lhe specific Icglll auri­ The opposing school held that thc mar­ huleli of innocent passage, the halancll ginal waters wcre as much property of of this chllpler will eXliminc tht: provi­ the littoral states as their land territory, sions of the J 95B Convention and the fully subject to their sovereignly (i.c., l<,gislative intcnt hchind them. While exclusive power to eontrol and regu­ this Convention may be considered as a latc).1 International law developments recent authoritative statcment of inter­ of the 20th century, however, have national law, SOIllC shortcomings must re:;olved sud I conflict. The disellssions he horne in mind. The provisions of the at the 19:W Codification Conference, 195B Convention on the Territorial Sea the work of the IntefJIational Law and Contiguolls Zone do not necessarily Commission preparatory to the I95B restate customary international law. (;eneva Conference on the Law of the Neither the International Law Commis­ Sea, as well as the latter Conference sion, which drafted a proposed conven­ itself, procluced a statemcnt eXJlressive tion, nor the Conference attempted a of customary international law, which mere restatement of existing custom, is embodied in article 1 of the Conven­ but rather undertook to codify a set of tion on the Territorial Sea and the realistic rules for the regulation of intcr­ Contiguous Zone: "Article I. 1. The national intercourse in the territorial sovereignty of a State extends, beyond seas and the contiguous zone. The Con­ its land territory and its internal waters, vention does, of course, embody sOllie to a helt of sea adjacent to its coast, rules of customary international law, described as the territorial sea. 2. This and to the extent thut it doeli it is sovereignty is exert'ised subject Lo the binding upon all states whcther they bc provisions of tlwsc artil'ies and to other parties to thc Convention or not. Those rules of internationallaw.,,3 provisions which do not represent prior It is thus apparent that the sovereign international law arc binding only UJlOIJ rights of a coastal state in its marginal the parties to the Convention (until waters are not absolute. Thcy are sub­ those provisions receive such general ject to limitations irnpolied hy the com­ aceeptanec alllong the states of the munity of nations by means of interna­ world as to achieve the status of cus­ tional law. One of these is innocent tomary international law). passage, which can be characterized as a Another shortcoming of the Conven­ qualification of the coastal state's juris­ tion is that it fails to cover sevc:ral diction and sovereignty in its territorial situations of importance such as the waters. Although the draft artidc!s width of the territorial sea, whc,thc'r ("Harvard Ht!seareh") prc:st:nted to the warships have an unlimited right of 369 illlloC('lIt pa~a/!(!, and a prO\'I:.'1011 ~Pt'­ tholl/!h the Harvard Itesl!areh ill Interna­ cifi(~all)' npplyilll! to multillational hays tional Law, which dmfted artit'it's of tlw such ns the (;ulf of Aqaha. law of the sea for prescntation to the 19:10 Hague Couifieation Conference, Righls of Ships. Basically, ships of all had rejeetcd the concept that vessels :;Iate~ may cxen:ise the right of illnoeent entering or leaving a port of the coastal I'a:':;agc through the territorial seas of state eould be in innocl!nt pnssage,9 the fOr\'il!n ~talt'''. SII('h n I'rtlvitlioll watl Codification Conference finully at/opted inl'llllll'd in thl' International Law Com­ the sUllie provision as the 195B Con­ mission'~ drnft articles which were suh­ ference.1 0 miLLed to the Conference for considera­ tioll. The oril!inal proposni wns adopted Thus the hasie criterion for innocent as artier., I '1., para~raph J, with ollly 011(, pa:>sav;e is 1lI0vement, and to this extent chan/!t,.6 The words "whether t:oaslal or artide I tI{2) rcfil!ets CIIStOlllury internn­ nol" were added to dt'scriht, furtlH'r "all tionnl law. 1 1 The delegutl!s to tlw Con­ statetl."7 Thitl uetioll eJlll'hatli7.ed thut fen'net: were in agreelllent with the innocent pa:>sagc was u right accorded to long-establisheu principles thnt anchor­ ships, ruther than one which depended ing or "hovering" in the territorial sea u(>on the reciprocity betwcen coastal broke innocent passage and subjected a states. ship to the jurisdiction of the eonstal In the dehates of the Confercnce, state.12 A specific provision to that concern urose over the transit of fishing effeet was introduced in the Conference hoats and warships in innocent passage. but was rejected as unnecessary. The In question was not whethcr SUeil vcs­ exception to the rule that stopping and scls had thc right of innocent passage, anchoring, except as incidental to or­ but rather the conditions surrounding dinary navigation, will hreak innocent such passage and the restrictions which passage is that of force majeure, as 1 the coastal state might place on it. embodied in article 14, paragraph 3. 3 llaving statcd the gcneral principle of The humanitarian principle that a ship the right of innocent passage, the Con­ in distress from a force majeure may vention gocs 011 to define "passage" in enter foreign territorial waters and artiele 14, para!,rraph 2, as "navigatioll anchor or may put into port with through the territorial sea for the pur­ complete immunity from local jurisdic­ tion has been long recognized in intema­ pose either of traversing that sea with­ 14 out elltering internal wuters, or of pro­ tionallaw. ceeding to internal waters, or of making The most extended discussions at the for the high seas from internal waters." Conference related to the problem I Emphasis added.] Such action rcjects which is basic to all considerations of an earlier view that the aims of a foreign innocent passage in its relationship to vessel transiting the territorial sea for freedom of the seas: the proper halance the purposc of entering internul waters hetween the security interests of the_ arc inconsistant with the basis of the coastal state and the overseas 'states' right of innoccnt passage because, it was need to navigate through territorial seas argued, the SUltuS of that vessel was without undue impediment. Such de­ deemed assimilated to that of a ship in bates centered around the Convention port where the jurisdiction of the coast­ provisions which defined "innocent" s al state is subject to no rcstrietion. and those which spelled out the rights The cxtension of innocent passage to and duties of the coastal states. a ship transiting the tcrritorial sea after Article 14, paragraph 4, first sen­ leaving internal waters is irlllic:ative of tence, provides the hasic definition: developmcnt in international law. AI- "Passage is innocent so long as it is not 370 prejudicial to the peace, good order or conveyed this idea or, instead, l)(~r­ security of the coastal State." The mitted the coastal state to claim arhi­ article which the International Law trarily that the fact of paslmge was Commission originally proposed had prejudicial to its interests. The Chilean read: "Passage is innocent so long as a delegate's view was that the language ship does not use the territorial sea for finally adopted created a presumption committing any acts prejudicial to the of innocence.1S In any event, the deter­ security of the coastal State or contrary mination of such issue initially rests to the present rules or to other rules of with the coastal state. lL is in thc bcst international law. ,,15 The proposed position to judge the question of preju­ amendments to this original provision as dice to its "peace, good order and well as the ensuing debates are enlight­ security." Safeguards against a capri­ ening as to the legislative intent behind cious claim include the reciprocal action the adopted provision. that other coastal states may take as An amendment proposed by India well as world public opinion. would have added the words "peace, The second sentence of artide I"" good ordcr or" prior to "the security," parngrnph 4, provides that "[ innoel'nt I since coastal states had h'l"eater intcrests passagc shall take place in conformity than mcrely security, which thc United with these articles and with other rules States characterized as comprehending of international law." The reason for only military sccurity.16 Such addi­ the split of the International Law Com­ tional interests include control of im­ mission's originally proposed single sen­ ports, exports, customs and immigra­ tence into two separatc sentenccs was to tion, navigation, and crime. deal with two separate issues: the con (Ii­ Ito mania introduced an amcndmcnt tions which had to he fulfilled for which, had it heen adopted, would have innocent passage; and the extent of provided that "Passage is inlloccnt as jurisdiction of the coastal state. A fur­ long as it is for the normal course of the ther assurance was dcsired that a viola­ ship .... " [emphasis supplied], ex­ tion of a rule of international law (such pressing the view that departure from as the requirement for smokeless fuel) such a course was sufficient reason for which did not prejudice the security of the coastal slate to exercise control. Of the coastal state could not be made the particular concern to Romania was the ground for denial of innocent pas­ preservation of economic (fishing) inter­ sage.19 Therefore, the innocence of ests against the "practice of some fish­ passage is not determined by the ship's ing vessels of putting nets down ilIegaIl~ compliance with all applicable provi­ while traversing the territorial sea. ,,1 sions of international law. Against this proposal the argument was A further concern of the Conference raised by several countries that there was to insure that fishing boats be was no such thing as a "normal" course permitted innocent passage, but that the for a ship, since its exact course was coastal state be empowered to prohibit determined by variahle factors, includ­ fishing by a ship purporting to pass ~ng weather, loading conditions, and innocently through the territorial sea. destination. Proposals for a specific parllgraph cover­ The United Kingdom expressed what ing fishing vessels were offered. One appeared to he the majority view, that which would have required that fishing the test of innocence of passage was not gear be "stowed away" was critici;r,cd as the passage itself, but rather the manner placing a burden on fishing vessels in whieh that passage was carried out. which was not rcquired by all ('Ollll­ The dehates centered on whether par­ trics.2o Further, "stowml away" is alll­ ticular proposed language adelpmtdy biguous in that it dOI:s not spedfy 371 wlH're or how gear is to be stowed, 1II111 tempted to rcquire, by law or regula· a ship lIIay not have time, before enter­ tion, levies of duties to he paid hy ships ing territorial waters, to do more than in innoee~nt passage, articlc I a, para· brin~ its gear aboard. graph I, specifics that "no charge may The Unitcd Statcs ami United King­ bc levied upon foreign ships hy reason dom fclt that a spccifie provision on only of their passage through the terri­ fishing vcssels was supcrfluous, since a torial sea." Paragraph 2 rccognizes the ship illegally fishing in territorial waters inherent right of a coastal state to make could not be in innocent passage. The charge, without discrimination, for ser­ provision adoptcd articlc 14, paragraph vices actually rendered (such as pilotagc, 5, conditions the innoccnce of passage towing, et cetera). of fishing vcssels upon their observance of "such laws as the coast,ll sLatc may Rights of States. The rights of coastal make and puhlish in order to prevent states with rcspeet to ships in innocent passa~e arc set forth in article 16 of the these Vl'ssds from fishing in the tcrri­ 23 torial sea." Convention. The first two panlgral'hs, The fin,ll paragrnph of article L4 was whieh reeognize a stale \; power to "lake an emhodiment oC lhe prevailing vicws the neeessary steps ill its territorial sea on submarines, as reflectcd in thc 1930 to prevent pas(;age which is lIot inno­ Codification Confrrence: in ordcr to bc cent" and to deal with ships proceeding in innoccnt passage, "submarincs arc to internal watcrs did not engellder required to navigate on the surface and controversy at the confercnce. to show thcir flag.,,21 In such manner, Para/.,rraphs 3 and 4, however, re­ suhmarines can give cvidence of the vealed differenccs of opinion of what innoecncc of passage and not constitutc the law should he with respect to a a danger to othcr ships in thc territorial state's suspension of innocent passage in territorial watcrs, generalIy, and in sea by procccding hcneath thc surface straits, in particular. whcrc thcy cannot readily bc seen. It is significant to note thc position of this The principal intcrnational legal pre­ cedent for discussion of thcse points is para{.,rraph among the "Rules Applicable the decision of thc Intcrnational Court '1'0 All Ships," so that all submarines, of Justice in the Corfu Channcl case.24 hoth civilian and warships, arc included. Thc facts of thc controvcrsy were as Duties of Ships. Where rights exist in follows: on 22 Octo her 1946, the Brit­ favor of a party, there cxist also com­ ish destroyers Saumarez and V olnge, in mcnsuratc dutics, and innoccnt passagc company with two cruisers, left the port is no cxccption. Article 17 restates of Corfu and proceeded northward precxisting international law in requir­ through a channel in the North Corfu ing ships in innocent passage to comply Strait. Saumarez struck a mine, sustain­ with the laws and f('gulations enal~ted ing heavy damage and pcrsonnel casllal­ by thc coastal statc.2 2 The balancing of tics. While assisting Sail mare::, V oln;!e inten~sts hctwccn ship ami coastal statc likcwise struck a minc. 011 I ~J Novemher is found in thc provision that "thc laws 1946 thc British found a moorcd mine­ and r(·gulations enacted hy the coastal field in Albanian tcrritorial waters, state l hc I in conformity with thcsl~ where its two ships had been damagcd, articlcs and othcr rules of international and swept it. Earlicr, in i'vlay 1946, two law." Thus this articlc would not rccog· British cruiscrs had traversed the strait, nizc a duty on ships in innoccnt passage and Albanian guns had fired upon thcm. to comply with a law which denicd Thc legal issues presented were innOI!(mt passa~e in contravl~ntion of whethcr warships could transit till! strait inte~rnational law. Lest coastal state!! he: lying in Albanian tcrritorial watl:ni in 372 innoc:ent passage without the permission that warships might not transit her of Albania, whether the fact of their territorial sea without prior notification. passage prejudiced Alhania's security, The Court therefore analyzed the man­ what duties were ineumhent upon Al­ ner in which the pal'~lIgl' W:I~ perforllll'd. bania to give notice of the navigational The ship~' guns had IH'l'n plael'd in thl'ir hazard (although Albania disclaimed normal stowage position. Personnl'i, any knowledge of the mining or per­ however, were at action stations. Find­ petrator thereof, the Court found con­ ing that the latter prl'caution was rca­ structive knowledge), and whether the sonahle, till' Court hel,1 that the llnitl'd United Kingdom violated Albania's I\.ingdolll ,lid not violate Albania's sovereignty by resorting to sclf-help in sovereignty by sending her ships clearing the minefield without Albania's through Albanian territorial waters on permission. 22 October 1946.26 Albania contended that the North The Court found, however, that thc Corfu Channel did not belong to the United Kingdolll's "self-help" of sweep­ class of international maritime channels ing the minefield on l:~ Novemher [94(, through which a right of passage ex­ against the expressed will of the Alhani­ isted, since it was a route of secondary an Government could not be justified. importance and not even a necessary This show of force hy a numlwr of route hetween two portions of the high warships, which remained in A Ihanian seas. territorial waters for sOllie time, couJrI The Court held that the determina­ not constitute innocent passage and tive factor was the strait's geographical therefore violated Albanian sovereignty. situation as connecting two portions of No payment of damages was rC'luired of the high seas and the fact of its usc for the United Kingdom, however. intcrnational navigation. It speeifieally Conversely, the Court found Alhania rejected the contention that the strait liable. in damages to the Unitcd King­ must he a nceessary route hetween two dom for breach of its coastal state's portions of the high seas to estahlish an duty to warn of a known navigational inter~ational right of passagc. After hazard. noting the considerable use which had The Court held that warships might been made of the channel, the court enjoy the right of innoccnt passage decided that the "North Corfu Channel without first obtaining permission from should be considered as falling under the coastal state. Thus the two passages the catcgory of international maritime of British warships, in May and October thoroughfares, through which pagsage 194(" were innocent inasmuch as the cannot be prohibited in time of peace ships were navigating through the strait by a coastal state.,,25 without prejudicing Albania's security. Alhania contended further that the The British warships' actions of remain­ destroyers' passage on 22 October 1946 ing within Albanian waters while swecp­ was not innocent and therefore violated ing mines in Novembe,r 1946 were preju­ Albanian sovereignty. In support Al­ dicial to Albania, hence there was no bania argued, inter alia, that the passage innocent passage. took place not for ordinary navigation A further holding was that Albania but in a political mission. Evidence from could not restrict passage through a the United Kingdom had showed that strait connecting two portions of the one of the purposes of the passage was high seas. to test Albania's atlitude (Albania had Thus the Conference had before it a fired on passing British warships on 15 judicial decision which it might confirm May 1946); ensuing diplomatic corre­ by codification or overrule by failing so spondence had revealc:ll Albania's view to do. It chORe to codify till: det:ision, ill 373

part, ill artiele 16, paragraph 4, which had no need to face the further 1!llCstioli prohihits "suspcnsion of the innocent of straits connecting high seas with passage of foreign ships through straits territorial seas. The Saudi Arahian dcle­ wllieh arc used for intcrnational navip:a­ gate eonehllled: " ... the alllelulcci LexL tion hl'lwe('n one part of the high seas no longer dealt with gl'lll'ral prineipit,g a lit I anotllt'r part of the high seas .... " of intcrnational law. hUL had hel~n care­ The draft proposal of the Interna­ fully tailored to promote the claims of tional Law Commission would have one State. ,,32 When article 16 came up limited the prohihition on suspending for discussion later in plenary session, innocent passage to "straits normally the UniLed Arab ItepuLlie delegate at­ used for international navigation be­ tempted unsuccessfully to obtain a vote tw('en two parts of the high scas." The on arLicle 16, paragraph 4, separately, in Cunllnissioll comm('IIl!'d that inr1usion an effort to reinstate the International of th(~ wunl "nurlllally" renl~et('d the \.lIW COlllllli~~ion's original dnrft word­ thrust of tlw Iq dl'cision in tll\~ Corfu ing. Sudl effort WlIS concurred in hy LIlt! 2 Chllllllt'l casl~. 7 The Confcrence, how­ Saudi Arabian delegate, who reiteraLed ever, did not so read thc Corfu Channel his charge that "paragraph 4 had been decision and rejected such wording. The drafted with one particular case in NI~thcrlands reprt!:-l'ntative explained view. ,,33 lie obviously was referring to that "normally" had hcen dropped he­ the Israeli claim of innocent passage causc it was considered that "paragraph through the Straits of Tiran and (;ulf of .~ should apply to sea-Iancs actually lIscd Aqaha. hy intcrnational navigation."28 Thc NotwiLhstanding the Arab challenge, Confercnce's othcr change was to ex­ paragraph 4 of article I () was adopted in pallIl on the Corfu Channel case and to Lhe First Committee by a close vote, 31 ext(!lHI tlw prohihition on suslwluling to .'lO, with 10 abstentions. Voting innocent passage through straits to against were the Arab countries of those connecting the high seas and the North and the i\liddle East, as territorial waters of another state. The well as CommunisL bloc countries. In explanation given was that this "re­ plenary session, article 16, as a whole, nrcted exh;tinp: usage safeguarding the was adopted by a 62 Lo 1 vote, with 9 right to usc straits lin~ing the high seas abstentions.34 with the territorial sea of a State. ,,29 With regard to paragraph 3 of article Saudi Arabia strongly dissented to 16 (suspension of innocent passage in deletion of the word "normally," main­ territorial waters), tht:re was a disagree­ taining that "innoccnt passage could be ment over the word "temporarily." exerciscd only in recognized interna­ Romania introduced a proposal to de­ tional seaways; it could not ... be in­ lete it: the effect would Lhus have been vokcd by ships using the North-West to give the coastal state latitude in Passage, which had ncver been uscd for denying innocent passage through its regular international navigation. ,,30 territorial waters without any time con­ Saudi Arabia further contested the straint. This propo~al was not put to a proposition that international law pro­ vote; "temporarily" therefore re­ vided a right of innoccnt passage mained.35 through straits connecting the high seas The International Law Commission with an internal sea or the territorial sea draft of artiele 16, paragraph :3, was of a particular state, citiny the Corfu extensively rewonletl, buL such changes Channel case for support.3 The weak­ merely constituted improvements in the ness of such argument is that the Court wording and did not make any changes was only dealing with a strait linking of substance. As adopted, it provides for two portions of thl! high SI!US, therefOr\! the temporary sllspen~i(ln of innocent 374 passage by the coastal state in the ohstacles to innocent passage. The Inter­ territorial sea if such action is "essential national Law Commission believe(1 that for the protection of its security." In that provision rel1c(!ted the Interna­ the First ConlJlliLLee the Unitt'(1 Kinl-(­ tional Courl of .I IIsli('(' ruling ill Ilw dom delegates noted the de~irabiIity of Corfu Channt'l ('as,', bul sudl vi,'w W;IS wording this provision in such a way as contested by the Unill!d Stales as obiter to create an "objective" standard for dietulII and not intended to state a the determination of prejudice to the eodifiable rule of law.38 security of the coastal state. In reply, Fearing an absolute liability which the Indian delegate noted that security could impose an undue economic hur­ questions should be determined by the den on coastal states, the coastal state, since it is in the bcst proposed deletion of this provision. The position to have access to and to evalu­ U.S. proposal was adopted,39 atlll the ate the relevant evidence. This view first paral"rraph of article 15, dl~aling prevailed, and although there was sOllie with duties of coastal states, reUlls further disagreement on the question of simply: "The coastal State must not which wording hest accommodated the hamper innocent passage through the interests of coastal states and interna­ territorial sea." tional shipping, the prescnt wording of The second paragraph of article 15, article I (l, parahrraph :1, was adopted by as proposed by the International Law the First ComllliLLce h~ a vote of :H to Commission reads, "The coastal State is 27, with 5 abstentions. 6 required to give uue publicity to any Thus it can be seen that article 16, danger to navigation of which it has while stating the rights of coastal states knowledge." The Conference feared to protect their security interests with that this requirement, as well, was too respect to innocent passage, docs limi t hroad and imposed the duty on coastal such rights: innocent passage cannot be slates to give notice of dangers no suspended through straits connecting matter where they be located, Such a the high seas with either the high seas or burden was deemed inordinate and the the territorial waters of a foreign state; limitation "within its territorial sea" ill other territorial waters, it lIIay only was added.4 0 bc temporarily suspended in specified The Conference thus incorporated areas, and due publication of such fact the thrust of the Corfu Channel decision must he made. into the Convention, as the Interna­ Duties of States. The legislative ef­ tional Court of Justice had in large fort of the Conference regarding the measure predicated the Albanian lia­ duties of the coastal states served to hility on the failure to give appropriate limit their liability. The International puhlieity to a known danger to naviga­ La w Commission's draft proposal, tion within its territorial waters. which represented an effort to codify a Article 18, which prohibits coastal novel area of intermltional law, would states from levying charges on ships in IUlve ret] uired the coastal states to "en­ innocent passage except for services sure respect for innocent passage actually rendered, is identical to the through the territorial sea and ... not article drafted hy the Second Commit­ allow the said sea to be used for acts tee at the 1930 Codification Con­ contra:;r. to the rights of other ference.41 It acknowledges the eco­ states." 7 This provision was seen as nomic value of the right of innocent placing the coastal state under a duty to passage to the commercial ships of the police its territorial waters so that one world and emphasizes again the policy foreign state might not illlpinge upon that coastal states not interfere with the rights of anotlwr, mill to relllove passing ships. 375

Warships. May warships enjoy the not receive the requisite two-thirds ma­ right of innocent passage in time of jority. The "no" votes included the peace'? Is such right dependent on either Communist hloe and Arah countries, prior notification to, or the permission which had so vociferously supported the of, the coastal statc? No othcr aspect of rcquirement for prior authorization. innocent passagc is more controversial. Thus the Convention contains no provi­ Onc view is that warships should "not sion according states the right of inno­ enjoy an absolute legal right to pass cent passage for their warships. through a state's territorial waters any (Article 23, originally article 25 of more than an army may cross the land the International Law Commission's territory." The rationale behind this draft convention, is the only rule ap­ view is that foreign warships by their plicable specifically to warships. It re­ very nature pose a threat whereas mer­ quires warships to comply with the chant ships do not, and that the world regulations of the coastal slate. For interests which exist in the case of failure of compliance with such regula­ freedom of the seas for merchant ships tions and the coastal state's request for are absent in the case of passage of compliance, the warships may he warships.42 ordcrcd to leave the territorial sea. This The opposing view, espollsed by the provision was adopted by a 7(,-0-1 United States and less than a majority vote.) of the states represented at the Con­ 1I0wever, the International Court of ference, is that warships do have a right Justice hased its Corfu Channcl case of innocent passage, as was held in the holding that warships do enjoy a right Corfu Channel case. of innocent passage, without the ncces­ The 1930 Codification Conference sity for either prior notification to or draft proposals on warships reflected authorization from the coastal sL.'lte, the more liberal view;43 the Interna­ upon evidcncc that such was the general tional Law Commission, however, pro­ practice of states.46 Notwithstanding posed an article which would have made the failure of the 1958 Law of the Sea the passage of warships "subject to Conference to include prior notification previous notification or authorization," or permission as a prereq uisite to the and the First CommiLtee reported such innocent passage Of warships, a con­ a provision.44 The words "or authoriza­ siderable numher of states favor such a tion" were dcleted from the article hy ruIe. Included in this group are the separate vote, with the U.S.S.R. voting Soviet hloc and Arab states, as demon­ to retain them on the basis that every strated by the vote on the International state, in the excrcise of its sovereignty, Law Commission's proposed arLicle....~4 should he allle to require prior authori­ and the reservations lodged by several zation of foreign warships.4s Saudi states at the time of signing the Con­ Arabia voted to retain the requirement vention.47 for prior authorization of warship pass­ Accordingly, it would app,ear that age, noting that "a warship could not be the present altitude of a majority of regarded as a vehicle of peaceful com­ states accepts a right of innocent pass­ munication, and unauthorized passage age for warships-but only if it be was tantamount to violation of the suliject to a greater measure of regula­ rights of coastal states and to aggression tion than is the case with non warships. against them." The proposed article 24, as amended to require only prior notifi­ Coastal State Sovereignty, Flag State cation for the innocent passage of war­ Jurisdiction. and Ship Immunity. Like lillips, fniled of adoption (tl.:! for, 24 the 19:W Codification Conferencc, the against, 12 abstentions) because it did International Law Commission ill its 376

draft articles 20 and 21 (criminal and whether it is applicable in hoth war and civil jllris(liction) sOll/!:ht not to promul­ peace. The International Law COlllmis­ gate specific rules resolving the eonllict :-;ion's cOlllnwntary on its draft Convl~n­ bctwcen the inherent jurisdiction of the tion on the Law or tlw Sea stated that coastal slatc over its territorial waters the draft articles it develop('(J WCrt' to and thc jurisdiction of the nag state apply only in time of peace.48 Al­ over its ships while they transit forcign though there was sOllie (Iiscussion at the territorial waters. Instead, established Conference to the effect that the ar­ principles wcre set forth for guidance: ticles considered had only peacetime that the coastal slate would, as a gencral application, the Convcntion on the Ter­ rule, refrain from exercising criminal ritorial Sea and Contiguous Zone is juris(iiction ovcr a passing ship unless silent on this poinL. the impact of the erilllc affected the It should he noted, howevcr, that eml,;tal state or di,;t urile(1 its PI!:I('(" artil'll\ 10 of Ilaglll' CllnVI,ntion XIII of onln, mill tranquility, or unl",;s its I (J07, concl,rning the rightto and dutil'to assistance was requested by the ship of neutral powcrs in time of war, captain or consul of the flag country. A recognizes that a right of passage of new provision was included for the belligerent warships throuf'1 a neuLral's suppression of drug traffic. These rules territorial waters exists. 9 Although recognized, however, the power of the such passage is noL qualified with the coastal state to cxercise its jurisdiction adjective "innocent," the eonstrutLion and in no way restricted it. The same placed upon "mere passage" indicates philosophy applicd to the exercise of that it is intended to apply as "innocent civil jurisdiction: the eoastal state passage." should not (but still may) stop or arrest The Altmark incident in World War foreign ships exccpt insofar as eivil II illustrates the problems and sonw obligations aLLach to the current voyage, practice with regard to innoccnt pasl:lagc or in the case of a ship leaving internal in tillle of war.50 waters or lying. in the territorial sea (article 20). In 1940 the Altmark, a German naval Government civilian vcssels in com­ auxiliary, was returning to (;crmany mercial service are assimilated to the from the South Atlantic with ahout aon status of merchant vessels by article 21; British prisoners of war. She took a Government civilian vessels not op: circuitous route which hrought her crated for commercial purposes are gov­ within Norwegian territorial waters for a erned by the provision 0 f artides 14 distance of several hundred miles. The through J 9 but arc not subject to thc lilt mark was hailed hy a Norwl'gian civil jurisdiction of article 20 (articles torpedo boat and in reply to inquiry 21,22). stated that it had no citizens or mem­ In sum, the 1958 Convention recog­ bers of armed forces of any belligerent nizes the jurisdiction of the littoral aboard. Subsequently, still within Nor­ sovereign over vessels in his territorial wegian waters, a British destroyer sca and, consistcnt with an accommoda­ boarded the Itltmark and Ii hera ted the tion bctwccn that sovereign's power and prisoners. Norway protcsted the in­ the free use of thc seas, does not forbid fringement of her sovereignty and viola­ the littoral slate to exercise jurisdiction, tion of her lieu trality. but merely exhorts him not to do so--in This situation presented the issues of accordance with the slated guidelines. whether a helligerent warship enjoys a right of innocent passage through neu­ Innocent Passage in Time of War. tral waters and, if so, whether sudl The J9!iB Convention fails to state passage is suhject to any restrictiolls. III 377

exchan~es of diplomatic correspon­ Passage Through Territorial Sea. A ncu­ d('nce, 1 Britain contell(led that the tral state may allow the mere pa~sagc of Illtmor" wns mnking helligerent lise of warships, or pri"'t~s, of hellifercnts Norwny's territorial wnters and there­ through its territorial sea."5 The fore could not have hcen in "mcre mnplifying footnote to this provision passage" and that Norway had a duty to reads, in part: ascertain whethcr the A /tillar" 's passage ... Thus, the 'mere passage' that may constituted helligcrcnt activity in viola­ be granted to belligeren t warships tion of Norwny's ncutrnlity. Norway through ncutral tcrritorial watcrs must had n'specl(',1 the imlllunity enjoyell by be of an innoccnt nature, in the sensc the foreign warship nnd took no adion that it must he incidental to thl.' nonnal rcquirements of navigation and to impcde its passage beyond verifying not intendcd in any way to turn its character as a warship. ncutral watcrs into a base of opcra­ Britnin conceded that "mere pass­ tions. In particular, the prolongcd usc age" in article 10 of lIague Convention of neutral watcrs by a bclligcrcnt war­ XIII denoted innocent passage hut con­ ship cithcr for thc purpose of avoiding combat with thc cnemy or for the strued the distance and duration in­ purpose of evading capture, would volved in A lttllorl, 's passagc as defeating appear to fall within the prohibition its innocence, inasllllleh as this Conven­ against using ncutral waters as a basc of tion prohibits belligcrents from cngaging operations.56 in military operations in ncutral terri­ With respect to the passage rights of torial watcrs. Britain contended that the belligerents inter se, a belligerent is result of Altmar" 's choice of route was entitled, as a matter of customary inter­ to obtain a shield against allack by national law, to prevent the passage of virtue of Norway's neutrality. an opposing belligerent's ships or of 5 Notwithstanding the different in­ cargo destined for him. 7 ferences drawn by Britain and Norway from the fnetnal situation prescnl!'d by II1--RECENT INCIDENTS the !Iltmur" '.~ passagc, hoth agrecd thal INVOLVING INNOCENT PASSAGE customary international law permitted a helligerent warship to navigate in inno­ With the recent legal history of hmo­ cent passage through neutral territorial 52 cent passage thus set forth, this chapter waters. Despite the provisions of will undertake an analysis of the two article 12 of Hague Convention XIII,S 3 1967 events of international significance neither Britain nor NorwilY regarded the in which the issue of the practical fact that Altmar" 's passage through application of the foregoing rules and It'rritorial waters exceeded 24 hours ns a principles arose: the United Arab Re­ violation of the Convention hut rather public's denial of innocent passage to as evidenee bearing on the innocence of Israeli shipping through the Straits of the passage. Tiran and Gulf of Aqaba, which proved Since learned writers on international to be a casus belli for the ensuing war, law accord to the coastal neutral state and the Union of Soviet Socialist Re­ the righl to deny innocent passagc in its public's denial of innocent passage tcrritorial waters to all belligerents with­ through the Vilkitsky Straits to two out discrimination if it so chooses, and U.S. Coast Guard icebreakers. Hague Convention XIII is inexplicit, it appears that helligcrent warships enjoy Straits of Tiran and Gulf of Aqaba. only a conditional right of innocent On 22 May 1967, President Nasser of passage.54 The position of the U.S. the United Arab Republic announced Navy on this maller appears in article that his country would prevent Israeli ,1/1·:1 of the /,aw of NmJaI Warfllre: "a. ships and othcr ships carrying strategic 378 cargo from transiting the Straits of after the Egypt-Israel Armistice Agree­ Tiran at the entrance to the Gulf of ment in 1949, and the applicable inter­ Aqaba.1 This action followed with­ national law doctrine is that helligerent drawal of the United Nations I~xpedi­ occupation cannot he legally converted tionary Force (UNEF) from the Egypt­ into sovereignty, unle~ the state of war Israel border and from Sharm-EI-Sheikh, was concluded by a peace treaty. a fortification overlooking the Straits of The second part of the U.A.R. posi­ Tiran from which that waterway can be tion is that the Armistice Agreemcnt of mili tarily controlled.2 (Previously, 1949 served only to end hostilities Egypt had blockaded the Gulf of Aqaba between Egypt and Isracl amI did not to Israeli shipping from 1948 to 1957.) terminate the state of belligerency be­ This action by Egypt, which had tween the disputants. Therefore, Egypt been coupled with a massing of armed was perfectly within her rights as a forces along her border with Israel, helligcrcnt to blockade Israeli shipping evoked consternation and protest from and goods from thc Straits of Tiran and the major maritime nations of the Gulf of Aqaba, and Israel had no right world, the United Kingdom and the of innocent passage therein.4 This latter United States, and the issues were de­ argument, if the underlying basic as­ bated in the Security Council of the ~um(lti()n of continued hdligerl'nl:Y 3 United Nations in late May 1967. The since 19·W is aCt:('pted, 1101'S not depend basic issue posed by the Egyptian block­ upon the validity of the "inlt'rnal ade was the legality of such action, in waters" claim. opposition to the claim of Israel to the In support of its claim that the Gulf right of innocent passage through the of Aqaha consists entirely of tlw in­ Straits of Tiran and Gulf of Aqaba to ternal waters of the three littoral stlltes her southern port of EIath. (U.A.R., Jordan, Saudi Arabia) having a The legal arguments of the United legitimate sovereign presence on the Arab Republic and Israel were expressed gulf, the United Arab Republic cited the in the U.N. debate. As will be seen, they example of the Gulf of Fonseca and the arc based upon two different sets of judicial decision thereon. operative facts. The Gulf of Fonseca case was an The position of the United Arab action brought in the Central ArlH'rican Republic is twofold. First, the Gulf of Court of .I ustice to set aside a Nicara­ Aqaba is an Arab "closed sea" and guan grant to the United States of a therefore constitutes internal waters of 99-year right to operate a naval base on the littoral states. International law Nicaraguan territory bordering the Gulf recognizes a right of innocent passage of Fonseca.5 I~l Salvador and Costa through the territorial sea, but no such Rica, both littoral on the gulf, objected right exists as to a state's internal to the !,rrant. Although there was 110 waters. Apparently aware of the provi­ dispute hetwcen the parties that the sions of article 16, paragraph 4, of the waters of the gulf were jointly owned Convention on the Territorial Sea and and were a "closed bay," Contiguous Zone, prohibiting the sus­ claimed that they should be divided hy pension of innocent passage through extending the land houndaries, whcreas international straits connecting the high Costa Rica claimed that the three states seas with the territorial sea of another had joint, undivided ownership. In sus­ state, the United Arab Republic main­ taining the Costa I{ican claim, the Court tains that Israel has no territorial sea in detcrmined that the Gulf of Fonseca the Gulf of Aqaba because her presence "hclongs to the special calegory of at Elath was the product of aggression. historic bays and is the exclusive prop· Such aggression, it is argued, occurred erty of £<:1 Salvador, lIonduras and Niea· 379

ragua." Its rationale was that the Gulf On thc otlll:r side of the dispute, of Fonse'ca Israd daimed Lhat Lhe Gulf of Aqaha is ... combines all the characteristics or an international waterway, and, conse­ conditions that the text writers on quently" the Straits of Tiran arc an intenlational law, the international law international straiL in which the right of institutes and the precedents have pre­ scribcd as esscntial to tcrritorial waters, innocent passage cannot be suspended. to wit, secular or immcmorial POSSl'S­ In at\llition, Israel saw the 1949 armis­ sion accompanied by allimo domilli ticc agreements as tcrminating the belli­ both peaceful and continuous and by gercncy between herself and Egypt and acquiescl'nce on t1w part of other .I onlan; therefore, I';/-''Yptian aeLion Lo nations, tI\l' spccial ~co~'I'aphical con­ interfere with shipping in the Straits of figuration that safeguards so many 8 intcrests of vital importance to tile Tiran violated internaLionallaw. economic, commcrcial, agricultural and Supporting Lhe Israel position on the indlL~trial life of thc riparian Statcs and juridical status of the waterway is an thc absolutc, indispcns.1!J\e nccessity aidc-11Ic11Ioire frolll U.S. Secretary of that those Statcs should possess Ule Gulf as fully as rcquircd by those State I )ulles to Lhe Israeli Ambassador, primordial intcrests and the interest of Ahba Ehan, of 11 February 1957. In national defensc.6 this document the United States reeog­ The Court helll that the ~ulf waters niz(:d tlHlt Israel WilS still in occupation w(!re joinLly owned inLernal waters, sub­ of areas stipulated by tllP arJllistiee jet:L to Lhe terriLorial sea of each coastal agreelllents to he occupied hy E~pt but state.' went on to declare that" _ .. the United Bdore the SecuriLy Council Lhe States helieves that the Gulf l.of AlJuha I 1I.A..H. related the historical facts Lhat comprehends international waters and the Gulf of Aqaba had been under thaL no IwLion has the right to prevent continuous Arab control for over 1,000 free and innocent passage in the (;ulf years and constitutcd an inland water­ and through the Straits hrjvin~ access way subject to absolute Arab sovcr­ thereto.,,9 Isruel also eontcnded that ei~nLy, and argued Lhat it Lherefore fell the international character of the gnlf within the category of historical gulfs was attested to by its use by a signifi­ which are governed by national internal cant amount of shipping under lIIany law rather than by internaLional law. different flags, und that such character The Gulf of Fonseca decision was elaim­ had been confirmed in the Gencral cd to be in point, since it concerned a Assembly in March 1957. multinational bay; furthermore, the With regard to the belligerency claim United StaLes had not disputed the of the Arah slates, Israel argucd that the position thaL the Gulf of Fonseca is part Security Council resolution of J S(:p­ of the intemal waLers of the littoral tember 1951 recognized that the armis­ sLates and had accepted the Court's tice agreements had legally terminated decision. the belligerency: " ... since the armis­ In support of its argument for a tice regime, which has becn in existence continuing status of belligerency, the for nearly two and a lmlf years, is of a United Arab Republic maintained Lhat permanent character, neither party can Israel had constantly violated the armis­ reasonably assert that it is actively a tice ah>TeelllenL and had commiLted acts belligerent .... ,,10 Thus, disagreement of ag{,>Tession againsL the Arab staLes and centered on two issues that need further that Lhe J956 war had not altered the analysis: the status of the Culf of Aqabu 1I.A.lt. rights in its waters; furLhermore, and the alleged status of bclligerency_ Britain recognized the blockade in Concerning the first issue, the Arab 1951, and U.S. ships observed it until elaims to a closed sea (internal waters) 195(,. in the gulf show several weakncssI!s. 380

Although the Culf of A'laba had hCI~n count th.c fact that such occupancy was under continuous OUoJllan control for clearly sct forth in the Israel-.J ordan ahout 1,200 years, no joint closed-sca Armistice Agreement, which followed claim was made by the coastal Arab the occupation in questio n.14 states at the time they gained sover­ Thc U.S. position on thc 1I.A.B.'s eignty in the present century. Such II denial of passagc lhrough lhc Stmils of claim was apparently not asserted unlil Tiran was exprcsscd hoth by I'rc8idcnt 1957, by Saudi Ambia.11 No Arab .I ohnson in a statement released 2:3 1\1ay protest was heard against the Ilse of the L967 anti by Ambassador Goldberg in gulf by Ismeli shipping during the the Security Council debates. The Presi­ period from 1957 to 1967. Nor have the dent stated that: Arah states agreed to a joint control •.• The Uniled States considers the over the gulf, as the coastal states had gulf [of Aqaba] to be an intcrnational done in the Gulf of Fonseca. In any watenvay and feels the blockade of Israrli shippin/! is iIIt'/!al .•• Thl' Hillht case, unlike the Gulf of Fonseca rq~imr, of frec, innocent pa&.

FOOTNOTES I-FREEDOM OF THE SEAS 1. Queen Elizabeth I, quoted in Ilerbert A. Smith, The Law and Custom of the Sea, 3d cd. (London: Stevens, 1959), p. 59. 2. Louise F. Ilrown, The Freedom of the Seas (New York: Dutton, 1919), p. 3-17. 3. Smith, p. 59. 4. Hugo Grotius, The Freedom of the Seas (New York: Oxford University Press, 1916), p. 7,32,34. 5. Teruo Kobayashi, The Anglo.Norwegian Fisheries Ca.~e of 19.51 ancl tile Changing [,ow of the Territorial Sea (Gainesville: University or 1"lorida l'fl'SS, 1965). p. (,. 6. llJill., p. 7. 385

7. Philip C. Jessup,' 1'fIe Law of Territorial /Vaters and Maritime Jurisdiction (New York: Jennings, 1927), p. 6. 8. Conference for the Codification of International Law, "Report of the Second Committee," 1't1e tlmerican Journal of fnternationallAw, July 1930 Supplement, p. 234-239. 9. United Nations Conference on the Law of the Sea, 2d, 1960, Official Records, A/CONF. 19/3 (Geneva: 1960), p. 30. 1O.llIid., p. 158·1{i3. H··NATURE AND ATTRIBUTES OF INNOCENT PASSAGE 1. Jessup, p. 115·119. 2. Lassa P.L. Oppenheim, International Law, 8th cd. (London: Longmans, Green, 1955), v. I, p. 487; Smith, p. 46. 3. lInited Nations Conference on the Law of the Sea, 1st, 1958, Official Records, A/CONI". 13/L52 (Geneva: 19511), v. II, p. 132. [Note: Articles 14 through 22 of thc Convention on the Territorial Sea and Contiguous Zone correspond to the International Law Commission's draft articles 15 through 23 respectively; article 23 of the Convention corresponds to the (LC draft article 25. I·'or case of reference, and unless otherwise specified, all references to both the draft articlc$ allli the Convcntion articles will use only the numbers of the articles as they now appear in the final Convention.] 4. "Thc Law of Territorial Waters," The American Journal of International Law, April 1929 Spceial Supplcment, p. 295. 5. Conference for the Codification of International Law, "Report of the Second Committee (Territorial Sea), Annex I." The American Journal of Intemational lAw, July 1930 Supplement, ~~ . 6. Arliclr l·t I. SUbjl'ct to the provisions of thl'Sl' arlkh$, ships of all Slates, whether coastal or not, shaIll'njoy Ihl' righl of ilUlOc('nt pa&'agc through the tl'rritorial sea, 2. I'at'.

2. The Gulf of Aqaba is a long, narrow gulf on the cast side of the Sinai Peninsula, borderecl by the United Arab Ifepublie on the west, Saudi Arabia on the cast, and by Israel and Jordan at the northern cnd. Lcngth of thc gulf is about 96 milcs; breadth at cntrancc, about 5-'l4 miles; maximum width, about 15 milcs. Entrancc is by mcans of two navigable channels through the Straits of Tiran, of maximum widths of about I,aoo yards and 950 ycards. /?irst Confer(mce on ti,e /,tIIV of till' Sea. v. I, p. 21111. 3. United Nations, Security Council, Official Records, Israel and United Arab Republic, S/I'V. 13'U through S/I'V. 134·5 (New York: 1967). 4. Ibid., S/I'V. 1:1·1.:1, p. al-:III. 5. "Thc~ Hepuillie of EI Salvador v. thc~ Republic of Nicaragua (1917)," Tile AmericllII Journal of International lAw, July 1917, p. 674-nO. 6. Ibid., p. 7115. 7. 11M., p. 700. II. lInitcd Nations, Security Council, SII'V. 1343, p. 67-611. 9. "Dcpartmcnt Announcement, February 17." Tile Department of State Bulletin, U March 1957, p. 392-393. 10. United Nations, Security Council, Official Records, Resolutions and Decisions of tile Security Council 1951, S/INF/6 Rev. 1 (New York: 1956), p. U. 11. Charles II. Selak, Jr., "A Consideration of the Legal Status of the Gulf of Aqaba," Tile American J oumal of International lAW, October 1958, p. 676-677, 692. ] 2. Second Confemncp. on tile lAW of tlw Sea, AlCONI<'. 19/4, p. 162. 13. United Nutions, Sccurity Council, S/PV. 1343, p. 41. 14. Sclak, p. 6110. 15. "The Unitcd States Calls for Restraint in the Ncar East," Tile Department of State /lulle/in, 12.T 1111(' 1967, p. 1170-1171. 16. t1nitrd Nations, Scrnrity Council, S/I'V. 13·~3, p.17. J 7.//Jid.. S/I'\'. I:H.. ~.p. ·~7. In. Oppl'nlH'illl, v. I. p. 51111.5(11); Ll'u Gro~~. "The Gel\l~va Conferenel~ on thl~ Law of the Sea and the Ri~ht of Innocent Passa~e through the Gulf of Aqaba," Tile American Journal of International/Aw, July 1959, p. 576. 19. "Suvit't Union Bar:; Completion of U.S. Scientific Voyage," '/'III' [)"IHlTtment of Stllte /Julletin, ]11 September ]%7, p. :162. 20. U.S. Treatic~, etc., U.S. 1'TI!atil'.~ alii/ Otller /ntemational Agreements (Washington: U.S. Govt. I'rint. Off., 1 %4), v. XV, pt. 2, p. 1670. 21. William E. Butler, "The Legal Regime of Russian Territorial Waters," The American Journal of International Law, January 1968, p. 68. 22. Baxter, p. 1611. 23. Baxter, p. 3; Daniel P. O'Connell, International Law (Dobbs Ferry, N.Y.: Oceana, 1965), p.56a. 24. Oppenheim, p. 512. 25. Baxter, p. 9. 26. International Court of J ustiee Corfu Channel Decision, p. 106. 27. O'Connell, p. 563. ----'¥----