International straits: still a matter of contention?
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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.