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entered the territorial sea, if the ship, proceeding from a foreign port, is nel had been "a useful route for international maritime
only passing through the territorial sea without entering internal waters. traKic." 182 The decision has been criticized as giving in-
Art. 20. (1) The coastal State should not stop or divert a foreign ship suffcient weight to functional considerations; i.e., as fail-
passing through the territorial sea for the purpose of exercising civil ju- ing to balance "the interest which the coastal state has in
risdiction in relation to a person on board the ship.
(2)The coastal State may not levy execution against or arrest the ship its own territorial sea against that which the international
for the purpose of any civil proceedings, save only in respect of obliga- maritime community has in traversing that passage." 183
tions or liabilities assumed or incurred by the ship itself in the course or (1) The International Law Commission, in its final
for the purpose of its voyage through the waters of the coastal State. version of the predecessor of Article 16 (4), limited the
(3)The provisions of the previous paragraph are without prejudice to
the right of the coastal Siate, in accordance with its laws, to levy execu- right of passage through straits to those which are "nor-
tion against or to arrest, for the purpose of any civil proceedings, a mally used for international navigation between two part
foregin ship lying in the territorial sea, or passing through the territorial of the high seas." 184 In the First Committee, however,
sea after leaving internal waters. the word "normally" was deleted and the article was
Sub-section C. Rules applicable to government
ships other than warships further amended to its present form by a vote of
Art. 21. The rules contained in sub-sections A and B shall also apply 31-30-10, over vigorous objection by the Arab states.
to govenunent ships operated for commercial purposes. 177 (Prior to the occupation of the Sinai Peninsula by Israeli
Sub-section D. Rule applicable to warships forces in 1967, Egypt and Saudi Arabia controlled the
Art. 23.If any warship does not comply with the regulations of the Straits of Tiran which provided the sole access to the Gulf
coastal State concerning passage through the territorial sea and dis-
regards any request for compliance which is made to it, the coastal State of Aqaba, on which Israel has several miles of front-
age.) 185 In the Plenary Meeting, a motion by the U.A.R.
may require the warship to leave the territorial sea. 178
for a separate vote on paragraph 4 of Article 16 was de-
A warship's right of innocent passage under customary
feated by a vote of 34-32-6; the Article was then approved
law is unclear. Jessup concluded, in 1927, that ". . . the
in full. Several Arab states, however, have entered reser-
sound rule seems to be that they [warships] should not en-
vations to this provision.
joy an absolute legal right to pass through a state's ter-
(2) By the terms of the Treaty of Lausanne, 186 the
ritorial waters any more than an army may cross the land
Dardanelles and the Bosphorus came under the supervi-
territory." 179 The Hague Codification Conference con-
sion of an international commission, the only one of its
fined itself to observing that states ordinarily "will not for-
type ever to function. Vessels of commerce were to be
bid the passage of foreign warships" and "will not require
allowed free passage in time of war and in peace, but limits
a previous authorization or notification." 180
were placed on the number of naval vessels permitted to
c. Innocent passage through straits. In the Corfu Chan-
transit the Straits into the Black Sea. Turkey was permitted
nel Case, 181 the United Ktngdom sought to hold Albania
to take defensive measures against enemy ships in time of
responsible for damage caused to British warships by
war. 187 But the Straits were demilitarized (Art. 4). The
mines moored in the Corfu Channel in Albanian ter-
ritorial waters. Albania contended that the British war- Straits Commission functioned as a supervisor of transit,
assuring that warships could pass through the Straits with-
ships had violated Albanian sovereignty by passing
through its territorial waters without previous authoriza- out undue hindrance, upon occasion making representa-
tion. In deciding that the Corfu Channel belonged to "the tions to Turkey on this subject. The Commission was ter-
class of international highways through which a right of minated upon conclusion of the Montreux Convention of
passage exists," the Court held that the "decisive cri- 1936. 188 The Convention transferred the functions of the
terion" was "its geographical situation as connecting two Straits Commission to Turkey, the littoral state, which
parts of the high seas and the fact of its being used for in- thus reasserted its sovereignty. Restrictions on the num-
ternational navigation.'' The Court rejected as immaterial ber of warships transiting the Straits into the Black Sea
Albanian arguments that the Channel was not a neces- were maintained, and Turkey assumed responsibility for
sary, but only an alternative, passage between two parts of assuring free passage. Free and unlimited navigation for
the high seas, holding that it was sufficient that the Chan- merchant vessels was retained, but Turkey was granted
the right to remilitarize the Straits. The Montreux Con-
177. Reservations have been entered by the Communist states to vention was to remain in force for twenty years from the
the articles permitting coastal states to exercise civil jurisdiction over
state trading vessels. 182. Id. at 28.
LAW563 (2d ed. 1970)
178. Many states have, on ratifying the Convention, made reserva- 183. 1.D. O'CONNELL, INTERNATIONAL
tions asserting the coastal state's right to require warships to seek pre- (hereinafter cited as 1 D. O'CONNELL).
vious authorization before passing through the territorial sea. See 184. 2 Y.B.INT'L L. C. 273 (1956).
Slonim, The Right ofInnocent Passage and the 1958 Geneva Corlference 185. 3 U.N. Conf. on the Law of the Sea, OFF. REC. 93-96, 100
on the Law of the Sea, 5 COLUM.J. TRANSNAT'L L. 96 (1966). (1958).
179. P. JESSUP, TERRITORIAL WATERS, 186. Convention Relating to the Regime of the Straits (1928), 28
supra, note 175 at 120.
180. 24 AM.J. INT'L SUPP. 246 (1930). For a collection of view, L.N.T.S. 115.
see 4 M. WHITEMAN,DIGESTOF INTERNATIONAL 187. Annex to Art. 2 of the Treaty of Lausanne.
LAW404-17
(1965) (hereinafter cited as 4 M. WHITEMAN). 188. Convention Concerning the Regime of the Straits (1936), 173
181. Corfu Channel case, [I9491I.C.J. 4. L.N.T.S. 213.