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date of its entry into force and was subject to denunciation States and Great Britain, 195 the rules of which are ex-
upon two years' notice after 1956. The right of free transit pressly stated to be "substantially as embodied in the
for merchant vessels, however, is to continue without Convention of Constantinople." The agreement provides
time limitation. As of January 1,1976, none of the parties in Article I11 that ". . .the canal shall be free and open to
had sought to denounce the Convention. 189 the vessels of commerce and of war of all nations observ-
d. Innocent passage through international canals. ing these Rules, on terms of entire equality, so that there
The right of free passage through international straits is a product of shall be no discrimination against any such nation, or its
state practice hardening into customary international law and thence into citizens or subjects, in respect of the conditions or changes
treaty. The right of free passage through interoceanic canals is a conse- of traffc, or otherwise." The foregoing language was sub-
quence of the opening of each waterway to usage by the international stantially reproduced in the 1903 treaty by which the
community. It is the origin of the right in a series of individual grants
which distinguishes the law relating to canals from the law of straits. The United States acquired the Canal Zone from Panama. 196
privilege of free passage through the three major interoceanic canals, (3) The Kiel Canal had not, prior to the Treaty of
Suez, Panama, and Kiel, has been created in each case by a treaty to Versailles of 19 19, been considered by Germany as an in-
which the territorial sovereign, acting freely or under the pressure of ternational waterway, open without restriction to all states.
other powers, has been a party. 190
Article 380 of the Treaty of Versailles, however, provided
(1) The right of free passage through the Suez Canal that ". . .the Kiel Canal and its approaches shall be main-
is usually said to be founded on the Convention of Con- tained free and open to the vessels of commerce and of
stantinople of 1888, 191 although some writers maintain war of all nations at peace with Germany on terms of en-
that the international character of the canal had already tire equality." 197 The Permanent Court of International
been established by concessions of 1854 and 1866. The Justice, in the Case of the S.S. Wimbledon,198 referred to
Convention was signed by Great Britain, Germany, the Canal as "an international waterway . . . for the
France, Austria-Hungary, Italy, the Netherlands, Russia, benefit of all nations of the world," even though only 28
Spain, and the Ottoman Empire (then holding sovereignty states were parties to Article 380. In 1936 Germany de-
over Egypt). After the Canal's nationalization in 1956, nounced Article 380 without effective protest from other
Egypt rediimed its obligations under the Convention. 192 states.
The Convention provides in Article I that the Canal ". . . (4) The legal position of states that are not parties to
shall always be free and open, in time of war as in time of treaties guaranteeing passage through international canals
peace, to every vessel of commerce or of war, without dis- has been rationalized by the doctrine of "international
tinction of flag," and in Article IV that ". .. no right of servitudes"; by the "third-party beneficiary" concepts
war, no act of hostility, nor any act having for its object the drawn from municipal law; by the theory that certain
obstruction of the free navigation of the Canal, shall be treaties are "dispositive" in nature in the sense that they
committed in the Canal and its ports of access, as well as create "real rights" that attach to a territory and are
within a radius of three marine miles from those ports, therefore not dependent on the treaty which created
even though the Ottoman Empire should be one of the them; and by analogy to treaties, such as the United Na-
belligerent Powers." The Convention also includes tions Charter, that have an objective, legislative character,
restrictions on warships and fortifications. In practice, in that they create international status that must be recog-
rights under Article I have usually been regarded as nized by all states, whether contracting parties or not.
granted to all states whether or not they adhere to the Baxter states that:
Convention. 193 During the two World Wars, the United .. .the preferable theory concerning the rights of nonsignatories is that a
Kingdom justified measures inconsistent with the Con- state may, in whole or in part, dedicate a waterway to international use,
vention as necessary to prevent the Canal's destruction. which dedication, if relied upon, creates legally enforceable rights in
Since 1948, Egypt has justified anti-Israeli restrictions on favor of the shipping of the international community. A treaty, a
unilateral declaration--perhaps even a concession-may be the instru-
the basis of its "inherent" right of self-defense. 194 ment whereby the dedication is effected. Its form is not important; what
(2) The regime of the Panama Canal is governed by is important is that it speaks to the entire world or to a group of states
the Hay-Pauncefote Treaty of 1901 between the United who are to be the beneficiaries of the right of free passage. 199
4-19. Foreign Vessels On the High Seas (Contiguous
189. 4 M. WHITEMAN,supra, note 180 at 417-47; see also R.
159-68
BAXTER, THE LAW OF INTERNATIONAL WATERWAYS Zone and Beyond).
(1964) (hereinafter cited as R. BAXTER).For materials on the problem CONVENTION ON THE HlGH SEAS
of the Gulf of Aqaba, see 4 M. WHITEMAN,supra at 465-80. Geneva, April 28, 1958
190. R. BAXTER,supra at 168-69. 13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82
191. 79 BRIT. & FOR. STATE PAPERS 18, Reprinted in 3 AM. J.
INT'LL. SUPP. 123 (1909). Art. 1. The term "high seas" means all parts of the seas that are not
192. 265 U.N.T.S. 299; 272 U.N.T:S. 225.
193. See 1 D. O'CONNELL,supra, note 183 at 643-48; R. BAX- 195. 32 Stat. 1903.
TER,supra, note 189 at 89-91, 169-70, 183 n. 162. 196. R. BAXTER,supra, note 189 at 170-71.
194. See 1 D.O'CONNELL,Supra at 647-48 and Gross, Passage '97, 112 BRIT. & FOR. STATE PAPERS 1, 189.
Through the Suez Canal of Israel-bound Cargo and Israel Ships, 51 AM. 198. 119231 P.C.I.J., ser. A, No. 1.
J. INT'L L. 530 (1957). 199. R.BAXTER,supra, note 189, at 182-83.