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The Geneva Conference on the Law of the Sea and the Right of Innocent Passage through the Gulf of Aqaba

Published online by Cambridge University Press:  16 May 2017

Leo Gross
Leo Gross*
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Extract

Since the United Nations Emergency Force moved in and occupied the heights overlooking the Straits of Tiran, the Gulf of Aqaba has been quiet. Ships, including Israel flag ships, move freely in and out. The right of passage claimed by Israel and other states was discussed in the Security Council in 1954, in the International Law Commission in 1956, in the General Assembly in 1956-57, and again at the Geneva Conference on the Law of the Sea February 24-April 27, 1958, and will be analyzed here. It should be stated at the outset that Israel's boundaries, including the strip at the northern end of the Gulf of Aqaba, are not an issue here. Nor is the Arab claim that a state of war continues to exist pertinent in determining the legal status of the Gulf and the Straits, although it obviously has some bearing on the availability to Israel of the right of “innocent” passage.

Type
Research Article
Information
American Journal of International Law , Volume 53 , Issue 3 , July 1959 , pp. 564 - 594
Copyright
Copyright © American Society of International Law 1959

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References

1 See Gross, ‘ ‘ Passage through the Suez Canal of Israel-Bound Cargo and Israel Ships,” 51 A.J.I.L. 530-568, particularly 564-568 (1957).

2 U.N. Doc. S/3168. Security Council, 9th Year, Official Records, Supp., January- March, 1954, p. 1.

3 U.N. Docs. S/3188 and Corr. 1, March 19, 1954. Loo. cit.,p. 44.

4 Official Journal, 664th Meeting, March 29, 1954, p. 12. This was the second Soviet veto in the Palestinian question; the first was cast on Jan. 22, 1954, and indicated shift in the position of the Soviet Union from abstention to active support of the Arab states against Israel.

5 U.N. Doc. S/2298/Rev. 1. Official Records, 558th Meeting, Sept. 1, 1951, p. 2.

6 Official Records, 663rd Meeting, March 25, 1954, p. 2. For statements to the same effect by representatives of Great Britain and France, see ibid.,pp. 6, 9.

7 Ibid.,661st Meeting, March 12, 1954, p. 19. The law referred to is presumably the decision of the Egyptian Council of Ministers of Nov. 28, 1953, enlarging the list of contraband goods to include food. Cf.U.N. Doc. 8/3168, note 2 above, at p. 2.

8 Quoted by the Israel representative in the Security Council, Official Records, 659th Meeting, Feb. 15, 1954, p. 19.

9 “Aide-Memoire Handed to Israeli Ambassador Eban by Secretary of State Dulles, February 11, 1957,” IT. S. Policy in the Middle East September 1956-June 1957, Documents, p. 290 (Dept. of State Pub. 6505).

10 Official Records, 659th Meeting, Feb. 15, 1954, p. 18. 15, 1954, p. 18.

11 Official Records, 658th Meeting, Feb. 5, 1954, p. 16, and ibid.,659th Meeting, Feb.

12 U.N. Doc. A/3575, April 15, 1957.

13 Ibid.,pp. 3-4; see also statement by the representative of Saudi Arabia in General Assembly, 12th Sess., Official Records, 697th Plenary Meeting, Oct. 2, 1957, p. 233, par. 92; and at Geneva Conference on the Law of the Sea, Official Records, Vol. III , First Committee, 3rd Meeting, March 3, 1959, p. 3, par. 30: “The Gulf of Aqaba came under exclusive Arab jurisdiction.“

14 Statement in the General Assembly; cf.note 13 above, p. 233, par. 93.

15 The “Memorandum concerning Historic Bays,” prepared by the U.N. Secretariat for the Geneva Conference on the Law of Sea, does not mention the Gulf of Aqaba among the bays regarded as historic bays or claimed as such by the states concerned. U.N. Doc. A/Conf. 13/1 (Sept. 20, 1957), pp. 9-28.

16 Memorandum, note 12 above, p. 4.

17 Statement in the General Assembly; cf.note 13 above, p. 233, par. 96.

18 The Suez Canal Problem July 26-September 22, 1956, p. 19 (Dept. of State Pub. 6392).

19 Fisheries Case (United Kingdom v.Norway), Judgment of Dec. 18, 1951. [1951] I.C.J. Rep. 116, at 130. See also 46 A.J.I.L. 348, at 358, 366, 369 (1952).

20 The Republic of El Salvador v.The Republic of Nicaragua, 11 A.J.I.L. 674-730 (1917).

21 Ibid,at 716; see also 707.

22 Ibid,at 705.

23 On this point the Court said: ‘ ‘ The historic origin of the right of exclusive ownership that has been exercised over the waters of the Gulf during the course of nearly four hundred years is incontrovertible, first, under the Spanish dominion—from 1522, when it was discovered and incorporated into the royal patrimony of the Crown of Castile, down to the year 1821—then under the Federal Republic of the Center of America, which in that year attained its independence and sovereignty down to 1839; and, subsequently, on the dissolution of the Federation in that year, the States of El Salvador, Honduras and Nicaragua, in their character of autonomous nations and legitimate successors of Spain, incorporated into their respective territories, as a necessary dependency thereof for geographical reasons and purposes of common defense, both the Gulf and its archipelago, which nature had indented in that important part of the continent, in the form of a gullet.” Ibid,at 700.

24 Memorandum concerning Historic Bays, note 15 above, at 63-79.

25 See 3 Gidel, Le Droit International Public de la Mer 606 (1934). Gidel interprets the Judgment of the Central American Court in the Fonseca case in this sense.

26 At the Geneva Conference on the Law of the Sea, the representative of Jordan expressed “his complete agreement with the observations made by the representative of Saudi Arabia” and his hope that Israel's possession of a share of the coast “would prove transient.” Official Records, Vol. III , First Committee, 8th Meeting, March 7, 1958, p. 18, pars. 6 and 7. The representative of Egypt stated that, contrary to the assertion of the representative of Israel, “no single aspect of the Palestine question had yet been the object of any settlement whatever.” Ibid.,p. 67, par. 9.

27 News Conference Statements by Secretary of State Dulles, Feb. 19, 1957. United States Policy in the Middle East September 1956-June 1957, p. 299 (Dept. of State Pub. 6505). But see 3 Gidel, Le Droit International Public de la Mer 604, where the author considers acquiescence by other states as essential even in such a case.

28 See note 20 above, at 711, and also the fifteenth question and the answer, at 694.

29 For the opposite view see Selak, Charles B. Jr., ‘’ A Consideration of the Legal Status of the Gulf of Aqaba,” 52 A.J.I.L. 660-698, at 693 (1958).Google Scholar

30 U.N. Legislative Series, Laws and Regulation on the Regime of the Territorial Sea, p. 522 (Sales No.: 1957.V.2).

31 Memorandum concerning Historic Bays, note 15 above, at 91. See also ibid.83-85, for doctrinal views regarding the requirement of recognition or acquiescence, and 98-102 for an analysis of the judgment of the International Court of Justice with respect to this requirement. See also the Japanese proposal of April 1, 1958, relating to Art. 7, par. 4, which, in defining historic bays, combines the elements of usage and recognition: “The term ‘historic bays’ means those bays over which coastal State or States have effectively exercised sovereign rights continuously for a period of long standing, with explicit or implicit recognition of such practice by foreign States.'’ U.N. Doc. A/Conf. 13/C.l/L. 104, Conference on the Law of the Sea, Official Records, Vol. III , First Committee, p. 241.

31a According to Alexander, Melamid, “Legal Status of the Gulf of Aqaba,” 53 A.J.I.L. 412-413 (1959)Google Scholar, there would seem to be no basis whatever for any historic or exclusive title to the Gulf in any of the riparian states.

32 Memorandum concerning Historic Bays, note 15 above, at 85-88.

33 See Statement by Professor François, Expert to the Secretariat of the Conference, U.N. Doc. A/Conf. 13/C.1/L.10. U.N. Conference on the Law of the Sea, Official Records, Vol. III , First Committee, p. 69, pars. 13, 14.

34 U.N. Doc. A/Conf. 13/L.56, p. 8 (April 30, 1958). Loc. cit.,Vol. II, Plenary Meetings, p. 145.

35 Cf.pp. 586-587 below.

36 General Assembly, 10th Sess., Official Records, Supp. No. 9 (A/2934); and 50 A.J.I.L. 232 (1956).

37 U.N. Doc. A/CN.4/99/Add. 1; 2 I.L.O. Yearbook 1956, pp. 52, 56; 50 A.J.I.L. 998 at 1005 (1956). The comment concluded as follows: “The interests of the international community must here have absolute predominance over those of the littoral States whose territorial waters have to be traversed in making for a given harbour. In this respect the passage through straits of this character is assimilated to the high seas themselves.''

38 See Myres S. McDougal, “The Crisis of the Law of the Sea,” 67 Yale Law Journal 546 (1958), on the conflict between “internationalist” and “provincial” myopia.

39 336th Meeting, June 13, 1956, 1 I.L.C. Yearbook 1956, Summary Records of its 8th Seas., April 23-July 4, 1956, p. 202, par. 89.

40 Ibid.,par. 96.

41 Ibid.,par. 93.

42 Ibid.,par. 94.

43 Ibid.,par. 102.

44 General Assembly, 11th Sess., Official Records, Supp. No. 9 (A/3159), p. 20.

45 U.N. Doc. A/3500, p. 5, par. 14. General Assembly, 11th Sess., Official Records, Annexes, Agenda Item 66, p. 44. The Secretary General added that he “has not considered that a discussion of the various aspects of this matter, and its possible relation to the action requested in the General Assembly resolutions on the Middle East crisis, falls within the mandate established for him in the resolution of 4 November (1956).“

46 U.N. Doc. A/3512, p. 8, par. 24. Annexes, Agenda Item 66, p. 49.

47 On this subject see Leo Gross, “Passage through the Suez Canal of Israel-Bound Cargo and Israel Ships,” 51 A.J.I.L. 530-568 (1957).

48 U.N. Doc. A/3512, p. 9, par. 28. Annexes, Agenda Item 66, p. 50.

49 1 Oppenheim, International Law 508 (8th ed., H. Lauterpacht, 1955). See also Gidel, op. cit.593-608.

50 See p. 565 above.

51 United States Policy in the Middle East Sept. 1956-June 1957, Documents, p. 290 (Dept. of State Pub. 6505).

52 White House News Statement issued at Thomasville, Georgia, Feb. 17, 1957. Ibid.,p. 293. The position of the IT. S. Government was restated in the Statement by the Department of State of June 27, 1957, which was delivered to the Washington missions of the eleven Arab nations in reply to their collective dèmarche submitted to the Secretary of State on May 24, 1957, on the problems of Algeria, Palestine, the Gulf of Aqaba and the Suez Canal. The writer is indebted for copies of these statements to the Chief, Historical Division, Department of State, and the Arab States Delegations Office, respectively. Parts of the American statement were printed in the New York Times, June 29, 1957. With respect to the U. S. position concerning the Gulf of Aqaba, see also the Circular sent by the Department of State on June 5, 1957, to Clarence G. Morse, Maritime Administrator, Department of Commerce, and Ralph E. Casey, American Merchant Marine Institute, New York, N. Y., in which the Department declared: “ A denial of free and innocent passage through those waters [i.e.,the Straits of Tiran and the Gulf of Aqaba] to vessels of United States registry should be reported to the nearest available United States diplomatic or consular officer.” 37 Dept. of State Bulletin 112 (1957). This Circular referred to the Notice to Mariners No. 44 of Oct. 29, 1955, by the IT. S. Hydrographie Office, which repeats the substance of the “ Ports and Lighthouses Administration Circular to Shipping No. 4 of 1955,” issued by the Director General, Rear Admiral Youssef Hammad. According to this Egyptian Circular, by “Orders dated 7th of July 1955, issued by the Minister of War and the Commander-in-Chief of the Armed Forces, the Regional Boycotting Office for Israel is appointed to be the sole authority for issuing permission to vessels to pass through the Egyptian Territorial Waters in the Gulf of Aqaba.” The Circular requires notification of at least 72 hours prior to the entry of the vessel into the Gulf of Aqaba. Ibid.113. The State Department's Circular would seem to indicate that U. S. vessels need not comply with the Egyptian requirement.

53 666th Plenary Meeting. General Assembly, 11th Sess., Official Records, p. 1276, par. 11. The Minister added the words: “ … in accordance with the generally accepted definition of those terms in the law of the sea.” See also the statement by the Israeli representative at the 668th Meeting, March 8, 1957. Ibid.,p. 1325, par. 252.

54 Ibid.,p. 1277, p a r . 33.

55 Ibid.,p. 1280, pars. 58, 59.

56 Ibid.,p. 1281, par. 72.

57 Ibid.,667th Meeting, p. 1284, par. 13.

58 Ibid.,p. 1287, par. 51.

59 Ibid.,p. 1288, pars. 56-61. The detailed reasoned statement by the representative of The Netherlands bears quoting in full: “First, inasmuch as the Gulf of Aqaba is bordered by four different States and has a width in excess of the three miles of territorial waters of the four littoral States on either side, it is, under the rules of international law, to be regarded as part of the open sea. Secondly, the Straits of Tiran consequently are, in the legal sense, straits connecting two open seas, normally used for international navigation. Thirdly, in regard to such straits, there is a right of free passage even if the straits are so narrow that they fall entirely within the territorial waters of one or more States. This rule was acknowledged by the International Court of Justice in the case of the Corfu Channel (Judgment of December 15, 1949; I.C.J. Reports 1949, p. 244) and also by the International Law Commission in its report for 1956 (A/3159). Fourthly, if a strait falls entirely within the territorial waters of one or more of the littoral States, there is still a right of innocent passage, but then the littoral States have the right, if necessary, to verify the innocent character of the passage. Fifthly, this right of verification, however, does not exist in those cases where the strait connects two parts of the open sea. It must, therefore, be concluded that all States have the right of free and unhampered passage for their vessels through the Straits of Tiran.''

60 Ibid.,p. 1292, par. 103.

61 Ibid.,p. 1594, par. 124.

62 Ibid.,p. 1296, p a r . 139.

63 Ibid.,p. 1296, par. 148. It should be noted, however, that Canada's position was based on political rather than legal considerations, as in its view the Assembly should not attempt to determine legal rights in the Gulf and the Straits.

64 Ibid.,p. 1300, par. 196. Norway's position was somewhat akin to that of Canada's in holding that the legal status of these waters “should be dealt with only by a legal body.

65 lbid.,p. 1303, par. 224.

66 ibid.,par. 234.

67 Ibid.,668th Meeting, p. 1319, par. 187.

68 Ibid.,667th Meeting, p. 1297, par. 159.

69 Ibid.,p. 1294, par. 116.

70 Ibid.,p. 1290, par. 78.

71 Ibid.,p. 1291, par. 88. It may be noted here that the representative of Iraq fully subscribed to the statements made by the representatives of Colombia and India. Ibid.,p. 1293, par. 116.

72 Ibid.,665th Meeting, p. 1269, par. 49.

73 Ibid.,p. 1270, par. 56. In his enthusiasm, the delegate of India overlooked the re maining littoral states, Jordan and Israel.

74 Ibid.,p. 1271, par. 62.

75 Ibid.At the 667th Meeting the representative of India specifically declared that access to the Gulf through the Straits of Tiran “cannot be arranged except with Egypt's consent,” inasmuch as the waters in the Straits are Egypt's territorial waters. Ibid.,p. 1301, par. 210. In his view, it was not within the province of the General Assembly to decide legal controversies. Ibid.,p. 1269, par. 48, and p. 1301, par. 209.

76 Ibid.,p. 1284, par. 12.

77 Ibid.,p. 1287, par. 51.

78 United States Policy in the Middle East Sept. 1956-June 1957, Documents, p. 291 (Dept. of State Pub. 6505).

79 Radio and television address by President Eisenhower, Feb. 20, 1957. Loc. cit.,p. 307.

80 666th Meeting, March 1, 1957. General Assembly, 11th Seas., Official Records, Plenary, p. 1278, par. 36. Cf.also p. 1277, par. 32.

81 Ibid.,p. 1280, par. 60.

82 ibid.,667th Meeting, p. 1284, par. 14.

83 Ibid.,p. 1287, par. 50.

84 Ibid.,p. 1292, pars. 99-101.

85 Ibid.,p. 1296, par. 140. The Belgian representative based his view also on the Charter itself: “ I pointed out on 1 February that each party to the Armistice Agreement must, in accordance with one of its fundamental provisions, refrain completely from any aggressive action against the people or the armed forces of the other. This is, moreover, an overriding principle of the Charter, except, of course, in the case of self-defence against armed aggression.“

86 660th Meeting, Feb. 26, 1957. Ibid.,p. 1203, par. 48.

87 667th Meeting, March 4, 1957. Ibid.,p. 1303, par. 225.

88 Cf.p. 575 above.

89 U.N. Doc. S/2298/Rev. 1, Official Records, 558th Meeting, Sept. I, 1951, p. 2.

90 665th Meeting, March 1, 1957. General Assembly, 11th Sess., Official Records, Plenary, p. 1270, par. 55. See also p. 1269, pars. 46, 47.

91 The representative of Canada appeared to advocate the opposite course at the 660th Meeting on Feb. 26, 1957. Ibid.,p. 1203, pars. 41 ff.

92 Art. 1, par. 1, of the Charter.

93 ‘’ Passage is innocent so long as a ship does not use the territorial sea for committing any acts prejudicial to the security of the coastal State or contrary to the present rules, or to other rules of international law.” Report of the International Law Commission Covering the Work of Its Eighth Session, April 23-July 4, 1956. General Assembly, 11th Sess., Official Records, Supp. No. 9 (A/3159), p. 19 (hereinafter referred to as I.L.C. Report 1956).

94 ‘’ Passage is innocent so long as it is not prejudicial to the security of the coastal State. Such passage shall take place in conformity with the present rules.” Doc. A/Conf. 13/C.l/L. 28/Rev. 1. U.N. Conference on the Law of the Sea, Official Records, Vol. III , First Committee, p. 216.

95 Op. cit.,p. 82, par. 22.

96 Representative of Denmark, ibid.,p. 83, par. 27.

97 Text of the eight-Power proposal in U.N. Conf., Official Records, Vol.III , p. 85, par. 4. For result of the vote see ibid.,p. 98, par. 37. The co-sponsors were: Chile, Ecuador, Haiti, Panama, Peru, Uruguay, Venezuela and Mexico. Speaking on this point, the representative of the United Kingdom “considered that any reference to the interests of the coastal State was also unacceptable, since it widened the whole concept to a degree which would make a farce of the right of innocent passage.'’ Ibid.,p. 85, par. 7.

98 The Indian representative proposed to insert after the word “prejudicial to “ the words “ the peace, good order or . “ Ibid.,p. 85, par. 3. For result of the vote see ibid.,p. 98, par. 39.

99 The Turkish amendment proposed to add in the second sentence of the American proposal the words “ a n d to the other rules of international law.” Ibid.,p. 98, par. 40.

100 Ibid.,par. 41, and Official Records, Vol. II , Plenary Meetings, p. 65, par. 3.

101 U.N. Doc. A/Conf. 13/L.52, p. 6 (April 28, 1958). Official Records, Vol. II, Plenary Meetings, p. 133; also 52 A.J.I.L. 837 (1958).

102 Official Records, Vol. I l l , p. 99, par. 43. He considered that in spite of certain improvements introduced by the American amendment, the text of the Commission's draft was more precise than the first sentence of the American amendment. The reservation was not repeated in the Plenary Meeting when the final text of Art. 14 was adopted. The final articles of the Convention do not provide for reservations.

103 Ibid., p. 83, par. 32, p. 85, par. 15; and Doc. A/Conf. 13/C.1/L.75, ibid.,p. 231. The acceptance of the Burmese drafting change by the representative of the United States is contained ibid.,p. 84, par. 46. There was no formal vote on the proposal.

104 Cf.p. 578 above. But see Max Sørensen, “Law of the Sea,” International Conciliation, No. 520, p. 234 (Nov. 1958). Cf.note 179, p. 593, below.

105 That the Committee was concerned with this problem and was anxious to eliminate subjective judgment, although it was divided on the text best calculated to realize this objective, can be seen from the observation of the representative of the Soviet Union, who “shared the misgivings expressed by several representatives regarding the revised United States proposal, which, by referring to the passage itself as not being prejudicial to the security of the coastal State, makes a subjective interpretation of the rule possible. The text drafted by the International Law Commission was much more objective because it referred to a ship using the territorial sea for committing acts prejudicial to the security of the coastal State.” Official Records, Vol. III , p. 84, par. 38. He finally voted in favor of the revised American proposal. Ibid.,p. 99, par. 42. In this context reference should also be made to the French amendment which introduced the concept of intent. Doc. A/Conf. 13/C.1/L.6, ibid.,p. 212. It was not voted upon. For observation on it by the Danish representative see ibid.,p. 86, par. 24; see also 3 Gidel, Le Droit International Public de la Mer 206 f.

106 ‘’The coastal State must not hamper innocent passage through the territorial sea. It is required to use the means at its disposal to ensure respect for innocent passage through the territorial sea, and must not allow the said sea to be used for acts contrary to the rights of other States.” 1956 I.L.C. Report 19.

107 Expressed in its commentary to Art. 16, par. 1. Ibid.

108 U.N. Doc. A/Conf. 13/C.1/L.38, Official Records, Vol. III , p. 220. The United States referred particularly to the Court's dictaon p. 22 of the Judgment, [1949] I.C.J. Rep. 4.

109 Official Records, Vol. III , p. 115, par. 10. The First Committee did not adopt the joint proposal of Bulgaria and the U.S.S.R., which elaborated the second sentence and excluded warships from its scope. Doc. A/Conf. 13/C.1/L.46, ibid.,p. 223, and p. 115, par. 9. The United Kingdom proposed to delete the second part of the second sentence beginning with “ a n d . “ Doc. A/Conf. 13/C.1/L.37, ibid.,p. 218. In view of the adoption of the U. S. proposal, the British proposal was not put to the vote. Ibid.,p. 115, par. 11.

110 Official Records, Vol. II , Plenary Meetings, p. 65, par. 3.

111 And consequently it rejected the Yugoslav proposal, which required the coastal state “ to take the steps which are necessary for the safety of navigation.” U.N. Doc. A/Conf. 13/C.1/L.16, ibid.,p. 213, p. 114, par. 7, and p. 115, par. 12.

112 '’ The coastal State may take the necessary steps in its territorial sea to protect itself against any act prejudicial to its security or to such other of its interests as it is authorized to protect under the present rules and other rules of international law.” 1956 I.L.C. Report 19.

113 UN. Doc. A/Conf. 13/C.1/L.72; Official Records, Vol. III , p. 231. The sponsors were: Greece, Netherlands, Portugal, United Kingdom, United States, and Yugoslavia.

114 Thus the Soviet and Mexican representatives favored the text formulated by the Commission. Official Records, Vol. III, p. 96, par. 8, and p.99, pars. 6-9.

115 Ibid.,p. 100, par. 16.

116 Ibid.,Vol. II , Plenary Meetings, p. 65, par. 7.

117 The text of Art. 16, par. 2, is as follows: “ In the case of ships proceeding to internal waters, the coastal State shall also have the right to take the necessary steps to prevent any breach of the conditions to which the admission of those ships to those waters is subject.” For the votes see Official Records, Vol. III , p. 100, par. 17, and ibid.,Plenary Meetings, p. 65, par. 7.

118 ’ ‘The coastal State may suspend temporarily in definite areas of its territorial sea the exercise of the right of passage if it should deem such suspension essential for the protection of the rights referred to in paragraph 1. Should it take such action, it is bound to give due publicity to the suspension.“

119 Official Records, Vol.III , p. 79, par. 7, observations by the British delegate.

120 Ibid.,par. 6, observation by the Greek delegate.

121 The delegate probably had this comment in mind: “ In exceptional cases a temporary suspension of the right of passage is permissible if compelling reasons connected with general security require it . “ I.L.C. Report, 1956, p. 20. The words “ if compelling reasons … require it , ‘’ imply a measure of accountability which is totally absent in the Commission's draft. See also the Netherlands delegate's observations in Official Records, Vol. III , p. 94, par. 17.

122 Ibid.,p. 88, par. 15. The text of the proposal sponsored by the four Powers (Netherlands, Portugal, U.K., U.S.A.) is as follows: “Subject to the provisions of paragraph 4, the coastal State may suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published.” U.N. Doc. A/Conf. 13/C.1/L.70; Official Records, Vol. III , p. 230.

123 Observation by the Indonesian delegate, ibid.,p. 94, pars. 18 and 19.

124 Ibid.,p. 94, par. 29.

125 Ibid,.,p. 96, par. 3.

126 Ibid.,p. 95, par. 33.

127 Ibid.,p. 95, par. 38.

128 The Greek proposal was to insert after the word “ may “ and before the word “suspend” the words “without discrimination among foreign ships.” U.N. Doc. A/Conf. 13/C.1/L.31; Official Records, Vol. III , p. 93, par. 4, and p. 100, par. 18.

129 The vote was 31 for, 27 against, with 5 abstentions. Ibid.,p. 100, par. 20.

130 Ibid.,Vol. II , Plenary Meetings, p. 65, par. 7. The vote was 62 for, 1 against, with 9 abstentions.

131 Its text is as follows: ‘’ There must be no suspension of the innocent passage of foreign Ships through straits normally used for international navigation between two parts of the high seas.''

132 See p. 572 above.

133 U.N. Doc. A/Conf. 13/C.1/L.39; Official Records, Vol. III , p. 220. It was also dropped in the Netherlands proposal, Doc. A/Conf. 13/C.1/L.51, ibid.,p. 224. See comment by the Netherlands representative, ibid.,p. 79, par. 15, and the three-Power (Netherlands, Portugal, United Kingdom) proposal, Doc. A/Conf. 13/C.1/L.71, ibid.,p. 231.

134 Ibid.,p. 94, par. 23; see also his remarks, p. 93, par. 9.

135 Ibid.,p. 94, par. 27.

136 Ibid.,p. 94, par. 30.

137 Ibid.,p. 95, par. 31.

138 Ibid.,p. 95, par. 36. This argument was rejected by the delegate of Saudi Arabia, who recalled that the term “normally” had been used in several international instruments, and had been specifically included in the Convention and Statute on the International Règime of Maritime Ports, adopted at Geneva in 1923, to remove any doubts and ambiguity. Ibid.,p. 96, par. 5.

139 See Dean, Arthur H., “ The Geneva Conference on the Law of the Sea: What Was Accomplished,” 52 A.J.I.L. 607-629, at 623 (1958).Google Scholar

140 The Saudi Arabian delegate's point is borne out by the fact that the Geneva Conference used the word “normally” in spite of its vagueness. Thus in the Convention on the Territorial Sea, Art. 3 speaks of “ normal “ baselines and Art. 9 of roadsteads which are “normally” used. The Convention on the Continental Shelf states in Art. 5, par. 8, that the coastal state shall not “normally” withhold its consent.

141 16th Meeting, March 6, 1958, Official Records, Vol. III , p. 11, par. 13. At the preceding meeting, March 5, 1958, the British delegate observed in connection with the right of innocent passage through international straits: “ In his delegation's view, no established and customary right of passage or access could be done away with by the unilateral action of any of the neighboring coastal States.” Ibid.,p. 9, par. 33.

142 The British proposed to add the words ‘’ or waters constituting the sole means of access to aport . “ U.N. Doc. A/Conf. 13/C.1/L.37, March 25, 1958; Official Records, Vol. III , p. 218. The Netherlands proposed a new text for Art. 17, par. 3 of which read: “There shall be no suspension of the innocent passage of foreign ships through sea lanes which are used for international navigation between a part of the high seas and another part of the high seas or the territorial waters of a foreign State . “ U.N. Doc. A/Conf. 13/C.1/L.51, March 25, 1958; Official Records, Vol. III , p. 224. It may be noted that Portugal suggested that Art. 17, par. 4, be modified to read: “through straits and sea lanes… . “ U.N. Doc. A/Conf. 13/C.1/L.47, March 25, 1958; Official Records, Vol. III , p. 223.

143 Official Records, Vol. III , p. 79, par. 12.

144 Ibid.,p. 79, par. 15.

145 Ibid.,p. 80, par. 21.

146 U.N. Doc. A/Conf. 13/C.1/L.71, March 28, 1958; Official Records, Vol. III , p. 231. This text was sponsored by The Netherlands, the United Kingdom and Portugal. The words in the British proposal were dropped. Ibid.,p. 93, par. 11.

147 Ibid.,par. 5.

148 Ibid.,p. 88, par. 16.

149 See the Danish delegate's observation that he would support the text ‘’ on the understanding that it referred to straits only in so far as they constituted sea lanes.” Ibid.,p. 93, par. 7.

150 Thus the delegate of Saudi Arabia declared that “ s o far as he knew, the word did not constitute a legal term, and was not defined by any writer on international law.” Ibid.,p. 93, par. 9, and p. 94, par. 22. See also the remark by the Soviet delegate, ibid.,p. 94, par. 30.

151 Ibid.,p. 94, par. 16.

152 Ibid.,p. 93, par. 14, and p. 96, par. 7. It may be noted that the term “ sea lanes” appears in Art. 5, par. 6, of the Convention on the Continental Shelf adopted by the Conference. U.N. Doc. A/Conf. 13/L.55.

153 Ibid.,p. 93, par. 9.

154 [1949] I.C.J. Rep. 4.

155 Official Records, Vol. III , p. 96, par. 4.

156 Ibid., p. 96, par. 6. He also declared that “his government's participation in the final act of the Conference would be conditional, among other things, on the rejection of the amendments to Article 17 at present before the Committee.” Ibid.,p. 94, p. 25.

157 Ibid.,p. 94, par. 16.

158 Ibid.,p. 100, par. 21.

159 Official Records, Vol. II , Plenary Meetings, p. 65, par. 5. He went on to justify this position by reference to Denmark's practice: “Part of the Danish coast bordered an international strait joining two parts of the high seas, and for more than one hundred years his country had maintained freedom of navigation through that strait in the interests of international trade. Such an obligation as that which his country had assumed should be counterbalanced by corresponding rights in other parts of the world, and Denmark accordingly expected that there would be free passage for its ships through straits in the territorial seas of other States.” Ibid.,par. 6.

160 Ibid.,p. 65, par. 7. In explaining his abstention, the delegate of Saudi Arabia reiterated his argument that par. 4 “had been drafted with one particular case in view,” and concluded: “Saudi Arabia would take the necessary steps to protect its national interests against the interpretation and application of paragraph 4 . “ Ibid.,par. 8.

161 U.N. Doc. A/Conf. 13/L.52; Official Records, Vol. II, Plenary Meetings, p. 134.

162 It may be noted that the question of the Gulf of Aqaba was injected into the deliberations of the First Committee at their very outset by the delegate of Saudi Arabia, who claimed that this gulf “came under exclusive Arab jurisdiction.” Ibid.,Vol. III , 3rd Meeting, March 4, 1958, p. 3, par. 30.

163 Cf.the observations of the delegates of The Netherlands, the United States and the United Kingdom, ibid.,p. 9, par. 33; p. 94, par. 15; p. 95, pars. 33 and 37.

164 1956 I.L.C. Report 20.

165 The Mexican proposal for a new text of Art. 18 was worded as follows: “Foreign ships exercising the right of passage shall comply, in conformity with the present rules and other rules of international law, with the laws and regulations enacted by the coastal State, and, in particular, with those relating to transport and navigation.” U.N. Doc. A/Conf. 13/C.1/L.45; Official Records, Vol. III , p. 222.

166 Ibid., p. 96, par. 15.

167 Ibid.,p. 97, par. 16.

168 U.N. Doc. A/Conf. 13/C.1/L.72; Official Records, Vol. III , p. 231. It ran as follows: “ 1 . Foreign ships exercising the right of passage shall comply with the laws and regulations made and published by the coastal State in conformity with the present rules and other rules of international law. 2. The coastal State has the right to take in its territorial sea the necessary steps in order to prevent infringements of the laws and regulations mentioned in paragraph 1, and to ensure the enforcement of such laws and regulations.” See also ibid.,p. 96, par. 13. The sponsoring Powers were: Greece, Netherlands, Portugal, United Kingdom, United States, and Yugoslavia.

169 Ibid.,p. 97, par. 18.

170 Ibid.,p. 101, par. 27.

171 Ibid.,p. 101, par. 28. Yugoslavia apparently remained the sole supporter.

172 Ibid.,p. 101, par. 31.

173 U.N-. Doc. A/Conf. 13/C.1/L.32; Official Records, Vol. III, p. 217. The Committee adopted the words: “The coastal State may not, however, apply these rules or regulations in such a manner as to discriminate between foreign vessels of different nationalities,” and rejected the words “nor, save in matters relating to fishing and shooting, between national vessels and foreign vessels.” Ibid.,p. 101, pars. 34, 35.

174 Ibid.,p, 102, par. 16.

175 Ibid.,p. 109, par. 57.

176 Ibid.,p. 256.

177 Official Records, Vol. II , Plenary Meetings, pp. 65 and 134.

178 cf.Max Sorensen, “ Law of the Sea,” International Conciliation, No. 520, p. 234 (Nov. 1958). He apparently assumes that “ t h e coastal State is authorized to enforceits laws and regulations on foreign ships passing through its territorial sea, but is not allowed to prevent a ship from passing through merely on the ground of a violation of such laws or regulations.“

179 Thus S0rensen argues that Art. 14, par. .4, far from restricting, ‘ ‘ now extends the rights of the coastal State and allows it to interfere with passage on such grounds as the nature of the cargo and its ultimate destination—provided, of course, that such factors are genuinely of a character to prejudice the security of the coastal State in the specific case.” Ibid.This view, if correct, would go a long way towards nullifying the right of innocent passage.

180 See Sørensen, loc. cit.,p. 236.

181 Res. 1105 (XI), Feb. 21, 1957; Official Records, Vol. II, Plenary Meetings, p. xi.

182 Ibid.,Plenary Meetings, pp. 26, 27, 52, 56, 57, 58, 59, 60.

183 Ibid.,p. 135.

184 Cf.Art. 19 of the former and Art. 12 of the latter. Ibid.,pp. 141, 143.

185 Arthur H.Dean, , “The Geneva Conference on the Law of the Sea: What Was Accomplished,” 52 A.J.I.L. 607-629, at 623 (1958).Google Scholar For the Aide-Mémoire, see p. 576 above.

186 Philip C.Jessup, , ‘’ The Geneva Conference on the Law of the Sea: A Study in International Law-Making,” 52 A.J.I.L. 730-733, at 732 (1958)Google Scholar: “The debates in the Conference would naturally contribute further evidence of what states consider to be ‘a general practice accepted as law'.“

187 Cf.U. S. Aide-Mémoire, p. 576 above.

188 Cf.p. 572 above.

189 Gidel, note 49 above, at p. 601, affirms the right of innocent passage to the different littoral states situated on a bay. Concerning passage through straits connecting with such a bay, he says: “A partir du moment où plusieurs riverains se partagent les côtes de cette mer, celui qui détient 1'entrée a, en vertu du droit international, et à moins de limitation de régimes conventionnels spéciaux, 1'obligation de laisser les Etats tiers passer par cette entrée. II parait devoir en être de même dans le cas d'une baie… . On ne doit pas facilement présumer pour des espaces maritimes la condition d'eaux ‘ intérieures,’ puisque le passage inoffensif peut n'y être pas accordé par l'Etat riverain.” Ibid,at 603. See also the statement by the delegate of The Netherlands, p. 587 above.