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Warships in territorial waters, their right of innocent passage

Published online by Cambridge University Press:  07 July 2009

O.G. de Vries Reilingh
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Extract

This study deals with the question whether there is, to-day, an international right of innocent passage of warships through territorial waters in time of peace. With this in view it will first be examined which links there are with other fields of international law; then will follow a more comprehensive review of the fundamentals of the problem.

Type
Section A: Articles
Information
Netherlands Yearbook of International Law , Volume 2 , December 1971 , pp. 29 - 67
Copyright
Copyright © T.M.C. Asser Press 1971

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References

1. To avoid misunderstanding, it should be observed that the right of innocent passage of warships is the right of the flag State, even if linguistic usage might suggest that it is the right of the ship. Since, in time of peace, a warship is at the present day always a government ship, the question of direct operation of the 1958 Conventions on the Law of the Sea (see infra n. 3) is not relevant. Cf. Meyers, H., The Nationality of Ships, 1967, pp. 8–10Google Scholar. When the present study speaks about innocent passage, it only refers to innocent passage of ships through the territorial waters of States other than the flag State.

2. Article 1 of the Final Act of the Hague Codification Conference which contains provisions on the “Legal Status of the Territorial Sea” reads: “The territory of a State includes a belt of sea described in this Convention as the territorial sea. Sovereignty over this belt is exercised subject to the conditions prescribed by the Convention and the other rules of international law”. The Conference was attended by 48 States, including one observer (the Soviet Union). The intention to adopt a convention on the territorial sea was abandoned for lack of agreement on the breadth of the territorial sea. Instead, 13 Articles, including eleven which dealt with innocent passage through territorial waters, were provisionally adopted and submitted to the League of Nations for the information of its Members. These Articles on the “Legal Status of the Territorial Sea” can be found in: League of Nations, Conference for the Codification of International Law, Final Act (C.228.M.115.1930.V) pp. 15–17.

3. Article 1 of the Convention on the Territorial Sea and the Contiguous Zone reads: “1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea. 2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law”.

4. Jessup says the following about it: “As a general principle, the right of innocent passage requires no supporting argument or citation of authority; it is firmly established in international law”. See Jessup, Ph.C., The Law of Territorial Waters and Maritime Jurisdiction, 1927, p. 120.Google Scholar

5. Article 14, para. 1 of the Territorial Sea Convention reads: “Subject to the provisions.of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea”.

6. See supra n. 2.

7. Second U.N. Conference on the Law of the Sea, Official Records, A/Conf.19/8.

8. Article 24, para. 2 of the Territorial Sea Convention. As to the drawing of the baseline, see Articles 3–13 of the Convention.

9. See inter alia Tammes, A.J.P., Internationaal Publiekrecht, 1966, p. 75.Google Scholar

10. Article 2 of the Convention on the High Seas.

11. No attention will be paid here to particular international law on the right of innocent passage of warships. An example of such particular international law is provided by the convention on the demilitarization of the Aaland Islands of October 20, 1921, 9 L.N.T.S. p. 219. Article 5 reads: “The prohibition to send warships into the zone described in Article 2 [Article 2 provides for territorial delimitation of the Aaland Islands] or to stationing them there shall not prejudice the freedom of innocent passage through the territorial waters. Such passage shall continue to be governed by the international rules and usages in force”. (Official text in French)

12. See infra p. 46.

13. In the Corfu Channel case the Court held that an international strait is a strait used for international navigation between two parts of the high seas. Article 16 para. 4 of the Territorial Sea Convention extends this definition by adding that an international strait may also be a strait used for international navigation between a part of the high-seas and the territorial sea of a State other than the riparian States of the strait. Passage through some of the most important straits has been regulated by particular international conventions, e.g. those on the Strait of Gibraltar, the Sound, the Strait of Magellan, the Bosphorus and the Dardannelles.

14. League of Nations, Conference for the Codification of International Law, Report of the Second Committeè (Territorial Sea), C.230.M.117.1930.V., p. 7.

15. I.L.C. Yearbook 1955, Vol. II p. 23 (Art. 7 para.2).

16. Scott, J.B., The Hague Peace Conferences of 1899 and 1907, Vol. II - Documents, pp. 423, 425.Google Scholar

17. Article 8, para. 2 of the Convention on the High Seas.

18. Jessup, Ph.C., “The International Law Commission's 1954 Report on the Regime of the Territorial Sea”, 49 A.J.I.L. (1955) p. 226.Google Scholar

19. Article 16, para. 2 of the Territorial Sea Convention.

20. See the International Law Commission's commentary on Article 24 of the draft Articles on the Law of the Sea in its final report to the U.N. General Assembly; I.L.C. Yearbook, 1956, Vol. II, p. 277.

21. I.C.J. Reports 1949 pp. 32–35.

22. SirGerald, Fitzmaurice, “Some Results of the Geneva Conference on the Law of the Sea”, 8 I.C.L.Q. (1959) p. 92.Google Scholar

23. League of Nations, Conference for the Codification of International Law, Report of the Second Committee (Territorial Sea), C.230.M.117.1930.V., p. 7.

24. I.L.C. Yearbook 1956 Vol. II, p. 258.

25. Ibid, Vol. I, p. 273.

26. Sørensen says about this modification that “…the provision 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”. Sørensen, M., “Law of the Sea”, 520 International Conciliation (11 1958) p. 234.Google Scholar

27. SirGerald, Fitzmaurice “Some Results etc.”, 8 I.C.L.Q. (1959) p. 96Google Scholar: “The phrase ‘peace, good order or security’ is a wide one, capable of affording a variety of plausible pretexts for prohibiting or impeding passage”.

28. Sir Gerald Fitzmaurice, op. cit., p. 95.

29. “Même si une réglementation formelle n'a pas été établie par l'Etat riverain à l'effet d'interdire aux bâtiments de guerre en passage de se livrer à des actes incompatibles avec le respect de la souveraineté ou de la sécurité de l'Etat riverain (sondages répétés, relevés de côtes, manoeuvres navales, exercises de tir, exécution de sentences capitales, etc… etc…), on doit considérer comme engagée la responsabilité internationale de l'Etat dont les forces navales se livraient à de tels actes”. Gidel, G., Le Droit International Public de la Mer, Le Temps de Paix; Vol. 3: La Mer territoriale et la Zone Contiguë (1934) p. 286.Google Scholar

30. Lawrence, T.J., The Principles of International Law, 6th ed. 1915, p. 196.Google Scholar

31. Hackworth, G.H., Digest of International Law, Vol. I (1940), p. 646Google Scholar. Elihu Root was United States Secretary of State between July 1, 1905 and January 27, 1909. The Court of Arbitration delivered its award on September 7, 1910.

32. See infra p. 47.

33. This may be concluded from a publication by the Office of Naval Intelligence of the United States Navy Department on the Regulations Governing the Visits of Men-of-War to Foreign Ports, known to the Office up to 1916. See for the text of this publication. 19 A.J.I.L. (1916) supplement, pp. 121–178.

34. League of Nations, Conference for the Codification of International Law, Final Act (C.228.M.115.1930 V) p. 17; I.L.C. Yearbook 1954. Vol. I, p. 158; Ibid. Vol. II, p. 161.

35. I.L C. Yearbook 1955, Vol. I, pp. 260–261; I.L.C. Yearbook 1956, Vol. II, p. 276; United Nations Conference on the Law of the Sea Official Records, Volume III. First Committee (Territorial Sea and Contiguous Zone), p. 260.

36. Franklin, C.M., The Law of the Sea: Some recent developments (Naval College, International Law Studies 1959–1960), 1961, p. 136Google Scholar. Our opinion that the requirement of prior authorization eliminates the legal right of innocent passage, is not shared by Colombos, as appears from the following: “A second rule which is also beyond dispute is the right of innocent passage of warships through foreign territorial waters. But a controversy arises on the question whether a previous authorization or notification to the coastal State is necessary before such passage is allowed”. Colombos, C.J.. “The Legal Regime of Warships in Foreign Waters”, Mélanges en l'Honneur de Gilbert Gidel (1961) p 160.Google Scholar

37. 13 Annuaire (1894–1895) pp. 329–331.

38. 34 Annuaire (1928) p. 758.

39. Report of the Thirty-Fourth Conference, 1926 p. 102.Google Scholar

40. 23 A.J.I.L. (1929), Special Supplement, p. 295.

41. Hall, W.E., A Treatise on International Law, edited by Higgins, A.P., 8th ed. (1924), p. 198.Google Scholar

42. Jessup, Ph. C., The Law of Territorial Waters etc. (1927), p. 120.Google Scholar

43. Westlake, J., International Law, Part. I (1904), p. 192.Google Scholar

44. Fauchille, P., Traité de Droit International Public, Vol. I, 2nd part. (1925), p. 1005.Google Scholar

45. Oppenheim, L., International Law, Vol. I (2nd ed., 1912), pp. 259–260Google Scholar. This quotation has been adopted in the 8th edition (1955), edited by H. Lauterpacht, without modification. Gidel quotes Oppenheim's view with approval. See Gidel, op.cit. p. 280.

46. As regards the literature on the subject, in Gidel's opinion only a minority of authors thinks that no right of innocent passage of warships exists. G. Gidel; op.cit., p. 279.

47. See the resolution of the League of Nations in 22 A.J.I.L. (1928) Special Supplement, pp. 231–232.

48. League of Nations, Conference for the Codification of International Law, Bases of Discussion drawn up for the Conference by the Preparatory Committee, Vol. II - Territorial Waters (C.74.M.39.1929.V), pp. 65 and 72.

49. Ibid., pp. 65–75; and also: Replies of Canada, Supplement to Vol. II (C.74(a).M.39(a).1929: V), p. 3; Replies of the U.S.S.R., Supplement to Vol. II (C.74(b).M.39(b).1929.V), p. 3.

50. Ibid. p. 67.

51. Ibid. p. 75. The words “should recognise” are different from the words “is bound to allow” used in “basis of discussion” No. 19 which deals with the right of innocent passage of merchant ships: “A coastal State is bound to allow foreign merchant ships a right of innocent passage through its territorial waters;…”. (Ibid. p. 71).

The French text, however, uses in both No. 19 and No. 20 the words “doit reconnaitre”; there is no question, therefore, of any difference between merchant ships and warships in this respect:

Base de discussion no. 19: “L'Etat riverain doit reconnaitre aux navires de commerce étrangers le droit de passage inoffensif dans ses eaux territoriales;… (Ibid. p. 71). Base de discussion no. 20: “L'Etat riverain doit reconnaitre le droit de passage inoffensif dans ses eaux territoriales aux bâtiments de guerre étrangers y compris les sous-marins naviguant en surface…(Ibid. p. 75).

52. League of Nations, Acts of the Conference for the Codification of International Law, Vol. III, Minutes of the Second Committee - Territorial Waters (C.352(b).M.145(b).1930.V) pp. 59–66 and 171–172. For the amendments on both “bases”, see pp. 183, 185, 186, 187, 192, 193, 194 and 195.

53. Ibid. p. 59.

54. Ibid. pp. 187–188.

55. Ibid. p. 63.

56. Ibid. p. 206. The Fiist Subcommittee included the delegates of Belgium, Cuba, Germany, Finland, France, Great Britain, Italy, Japan, Yugoslavia, Norway, Portugal and the United States and François, the Rapporteur of the Second Committee.

57. League of Nations, Conference for the Codification of International Law, Report of the Second Committee (Territorial Sea)(C.230.M.117.1930.V)p. 10.

58. Société des Nations, Actes de la Conférence pour la Codification du Droit International, Volume I, Séances Plénières(C.351.M.145.1930.V)pp. 50–54.

59. G. Gidel, op.cit. pp. 283 and 284. The additional reason which Gidel mentions in the last sentence of the quotation and which makes passage of warships tolerated instead of being a right, is peculiar because the concept of innocence offers the coastal State sufficient protection. It might be pointed out that Article 12 does not include the requirement that the passage be innocent; such innocence of passage, however, is certainly intended, as appears from the “observations” on Article 12, and is also recognized as such by Gidel. (See inter alia op.cit. p.286).

60. Hyde, C.C., International Law, chiefly as interpreted and applied by the United States (2nd ed., 1947), pp. 517, 518.Google Scholar

61. I.C.J. Rep. 1949 p. 30. In their pleadings the Parties to the dispute considered in detail the question whether or not warships have a right of innocent passage through territorial waters which do not form part of straits. Various views and arguments are included in II Yung, Chung, Legal Problems involved in the Corfu Channel Incident (1959), pp. 173–181Google Scholar. Krylov, in his dissenting opinion, considered that no right of innocent passage of warships through territorial waters exists. In this connection he quoted the opinions of Gidel and Root and the Harvard Draft. See I.C.J. Rep. 1949 p. 74. Azevedo, in his dissenting opinion, also considers that no such right exists. See I.C.J. Rep. 1949, pp. 97–103.

62. I.C.J. Rep. 1949, p. 26.

63. Ibid. pp. 32–35.

64. Ibid. p. 28.

65. Ibid. p. 28.

66. Ibid. p. 28.

67. Ibid. p. 29.

68. See infra p. 67. Starke strongly expresses this interpretation of the Court's decision: “In the Corfu Channel Case (Merits), I.C.J. Reports (1949) 4 et seq. it was recognized that in time of peace warships are entitled to a right of innocent passage through such parts of the territorial sea as form an international highway”. Starke, J.G., An Introduction to International Law (6th ed., 1967) p. 191.Google Scholar

69. I.C.J. Rep. 1949, p. 29. In this connection Chung says the following: “… the Court did not specify what kind of ‘regulations’ Albania was entitled to issue in the particular circumstances. What about the requirement of previous notification which Albania stated in its circular note of 17 May 1946, and which the British Government failed to fulfil ? Did the Court imply that previous notification could be included in the ‘regulations’? The Judgment did not consider the question and drew no consequences from the British Government's failure to notify the intended passage”. II Yung Chung, op.cit., pp. 208–209.

70. I.C.J. Rep. 1949, p. 30.

71. Ibid. pp. 30–31.

72. Ibid. p. 32.

73. Ibid. p. 36.

74. Laws and Regulations on the Regime of the Territorial Sea, U.N. Legislative Series, ST/LEG/SER.B/6 (1957).

75. See the data included in the “Laws and Regulations” above, relating to Belgium (p. 361), Brazil (p. 363), Cambodia (p. 3), Denmark (p. 369), France (p. 373), German Federal Republic (p. 377), Honduras (p. 379), Iran (p. 379), Italy (p. 380), Lebanon (p. 385), Libya (p. 177), Netherlands (p. 385), Norway (p. 398), Peru (p. 404), Sweden (p. 409), Yugoslavia (p. 418).

76. Bulgaria and Romania, Ibid. pp. 366 and 409.

77. Ibid. p. 412.

78. Replying to Point IX of the Preparatory Committee's questionnaire the Soviet Union stated her view as follows: “Free passage for both merchant ships and warships is provided in paragraph 2 of the Instructions for the navigation of vessels in time of peace in coastal waters within range of coast batteries (Order of the Revolutionary Council of War of the USSR, July 5th, 1924, No. 897; see Annex no. 8). Paragraph 10 of these Instructions provides that any vessel may be prohibited access to certain specified zones (the area of the fortress of Kronstadt)”. See Bases of Discussion, Supplement to Volume II – Territorial Waters, Replies of the Union of Soviet Socialist Republics (C.74(b).M.39(b).1929.V) p.3. The 1947 official Soviet textbook on “International Law” (Soviet Academy of Sciences, Department of Law) says in the section on “Peaceful Passage of Warships”, pp. 257–258: “Foreign naval vessels may pass through the territorial waters without previous permission to do so and without previous notice of their oppassage. The practice of states indicates that as a rule in time of peace the states do not obstruct the passage of foreign warships through their territorial waters” (cited from: Pundeff, M., “Bulgarian Decree on Territorial Waters”, 46 A.J.I.L. (1952), at pp. 332–333)Google Scholar. In a later edition of “International Law” (1960, edited by Kozhevnikov, F.I.)Google Scholar it is contended that there are no rules in international law governing the passage of men-of-war through territorial waters and that the coastal State is justified in requiring previous authorization (pp. 215–216).

79. These countries are (the page-numbers refer to the U.N. publication mentioned in n. 74): Chile (p. 366), (Nationalist) China (p. 367), Colombia (p. 367), Costa Rica (p. 368), Dominican Republic (p. 373), Ecuador (p. 373), El Salvador (p. 373), Finland (p. 810), Guatemala (p. 379), Nicaragua (p. 398), Philippines (p. 408), Poland (p. 409) and South Africa (p. 412).

80. These countries are: Australia, Canada, Ceylon, Cuba, Ethiopia, Greece, Iceland, India, Iraq, Israel, Japan, Jordan, South Korea, Monaco, Morocco, New Zealand, Pakistan, Portugal, United Kingdom and the United States. These States responded positively to a request from the U.N. Secretariat to state the laws and regulations governing their territorial seas; consequently, they may be assumed to have stated all their laws and regulations in this field. In the Corfu Channel Case it was the United Kingdom who, in particular, made it clear in her pleadings before the International Court of Justice that she recognizes a right of innocent passage of warships. See II Yung Chung, op.cit. pp. 173–181.

81. I.e. included in the compilation mentioned in n. 74.

82. These countries are: Afghanistan, Austria, Bolivia, Byelorussia, Czechoslovakia, Hungary, Laos, Luxembourg, Nepal, Paraguay, San Marino, Switzerland and Vatican City.

83. These countries are: Albania, Argentina, Burma, Egypt, Ghana, Haiti, Ireland, Indonesia, Liberia, Federation of Malaya, Mexico, Panama, Saudi Arabia, Syria Thailand, Tunisia, Turkey, Ukraine, Uruguay, Venezuela, South Viet-Nam and Yemen. Amongst these countries the Ukrainian SSR will certainly follow the Soviet Union's laws and regulations (see n. 78). Egypt and Thailand were, in 1954, in favour of a right of innocent passage of warships through territorial waters (see infra p. 51). Indonesia is known expressly to guarantee the right of innocent passage of all foreign ships by a decision of December 13, 1957, extending her territorial waters (Declaration of the Government of the Republic of Indonesia on its Territorial Sea, in Barabolya, P.D. et al. , Manual of International Maritime Law, Part. II (1966))Google Scholar. Cf. also the subsequent Act No 4/ 1960, text in U.N. Doc.A/CONF.19/5/Add. 1 (1960). Finally, neither Albania (see II Yung Chung, op.cit. pp. 173–181) nor Haiti (see infra p. 51) recognize a right of innocent passage of warships through territorial waters.

84. I.L.C. Yearbook 1956 Vol.II, pp. 225–256.

85. Cf. Verzijl, J.H.W., “The United Nations Conference on the Law of the Sea, Geneva, 1958, I”, 6 N.T.I.R. (1959) at p. 8.Google Scholar

86. The two Articles (with commentary) remained unchanged in the second and third reports by François (only their numbering was changed), since the I.L.C. did not deal with the articles on the right of passage until 1954. The numbering of the Articles in the following refers to these second and third reports, I.L.C. Yearbook 1953 Vol.II p. 58 ff.

87. Because of the frequent changes made subsequently in the numhe.ri no of these draft Articles, they will be indicated here by “First Article” and “Second Article”.

88. The first three reports by Francois on the régime of the territorial sea are in French. The English text of both Articles can be found in the Yearbook of the International Law Commission 1954 Volume I, p. 158 (footnote 14) and p. 162 (footnote 10).

89. I.L.C. Yearbook 1955 Vol. II pp. 43–62.

90. Régime of the Territorial Sea, Amendments proposed by the Special Rapporteur, in the Light of the Comments by Governments, to the provisional Articles adopted by the Commission at its Sixth Session (U.N. Doc. A/CN.4/93), p. 5; French text in I.L.C. Yearbook 1955 Vol. II, p. 5.

91. This modification, proposed by the Special Rapporteur, was to the effect that Articles 17–21 were to contain the rules applicable to all ships, Articles 22–25 the rules for ships other than warships and Articles 26 and 27 the rules applicable to warships.

92. I.L.C. Yearbook 1955 Vol.I, pp. 142–151 and 259–261. The eventual Second Article was adopted in its original form by six votes to two, with three abstentions. Ibid. p. 261.

93. Ibid. p. 143.

94. See supra n. 91, and I.L.C. Yearbook 1955 Vol.II p. 6.

95. I.L.C. Yearbook 1954 Vol.II, p. 159.

96. I.L.C. Yearbook 1955 Vol.I, p. 147.

97. Ibid. p. 147.

98. Ibid. p. 148.

99. Ibid. p. 148.

100. Ibid. pp. 260–261. In the 1955 I.L.C. report to the U.N. General Assembly the draft Articles of Chapter III (“Right of innocent passage”) were subdivided as follows: section A - General Rules (Arts. 16–19), Section B - Merchant Vessels (Arts. 20–22), Section C - Government yessels other than Warships (Arts. 23–24), Section D - Warships (Arts. 25–26). Article 25 referred to Articles 18 and 19 which dealt with “Rights of protection of the coastal State” and “Duties of foreign vessels during their passage” respectively. The Comment on Article 25 read, inter alia, that this Article “does not affect the rights of States under a convention governing passage through the straits to which it refers” and that “The Commission expresses the hope that it will not normally be necessary to request a special authorization for each passage and that the authorization will be issued in general terms giving vessels the right of passage provided they comply with the regulations enacted by the coastal State”. See: Report of the International Law Commission covering the work of its seventh session, I.L.C. Yearbook 1955, Vol. II pp. 39, 41.

101. I.L.C. Yearbook. 1956 Vol.II, pp. 37–101.

102. In his “Summary of replies from Governments and conclusions of the special Rapporteur”, the latter requested the Commission to reconsider the text of the first Article in the light of the comments received. I.L.C. Yearbook 1956 Vol.II p. 31.

103. Ibid. Vol. I, pp. 211–216, 286–287 and 289–290.

104. Art. 18 in the 1955 I.L.C. report (see supra n. 100).

105. I.L.C. Yearbook 1956 Vol.II, p. 276.

106. Ibid. Vol II, pp. 276–277.

107. Ibid. Vol. I, pp. 216 and 287. Fo. the text of this Second Article (now: 25) and comments thereon, see ibid Vol. II p. 277.

108. And became para. 5 of Article 15. This Article 15 was Article 16 under the 1955 numbering. See supra n. 100.

109. Article 19 under the 1955 numbering.

110. Texts of and comments on Articles 15 to 18 (formerly 16–19, see n. 100) in: ibid. Vol. II, pp. 272–274. As a preliminary to section (formerly: Chapter) III (“Right of Innocent Passage”) the I.L.C. said, inter alia: “The general rules laid down in sub-section (formerly: section) A are fully applicable to merchant ships (sub-section B). They apply to the ships referred to in subsections C and D subject to the reservations stated there.”

111. For the preparatory documents: United Nations Conference on the Law of the Sea, Official Records, Vol. I. Preparatory Document No. 5 (ibid. pp. 75–113) contains “Comments by Governments on the Draft Articles concerning the Law of the Sea adopted by the International Law Commission at its eighth session”. Three States commented on the draft [First] Article discussed here (See ibid. pp. 82, 85 and 107–108).

112. United Nations Conference on the Law of the Sea, Official Records, Vol. III: First Committee (Territorial Sea and Contiguous Zone), pp. 127 ff, 214, 219, 222, 224, 225.

113. Ibid. Vol. III p. 260.

114. United Nations Conference on the Law of the Sea, Official Records, Vol. II: Plenary Meetings, pp. 66–68 and 69.

115. Ibid. Vol. II p. 66.

116. Ibid. Vol. II p. 67.

117. Ibid. Vol. II p. 67.

118. Ibid. Vol. II p. 68.

119. Ibid. Vol. II p. 68. At the request of the representative of Saudi Arabia voting took place by roll-call. In favour: Australia, Belgium, Brazil, Cambodia, Canada, Chile, China, Costa Rica, Cuba, Denmark, Dominican Republic, Ecuador, El Salvador, France, Federal Republic of Germany, Great Britain, Guatemala, Haiti, Honduras, Iceland, Ireland, Israel, Italy, Japan, Luxembourg, Monaco, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Portugal, South Africa, South Viet-Nam, Spain, Sweden, Thailand, Venezuela and the United States. Against: Albania, Bulgaria, Burma, Byelorussia, Ceylon, Czechoslovakia, Ghana, Hungary, India, Indonesia, Iran, Iraq, Libya, Federation of Malaya, Poland, Romania, Saudi Arabia, South Korea, Soviet Union, Tunisia, Turkey, Ukraine, United Arab Republic, Yugoslavia. Abstentions: Afghanistan, Argentina, Austria, Finland, Greece, Holy See, Laos, Liberia, Mexico, Nepal, Switzerland, Uruguay.

120. Ibid. Vol. III, p. 128.

121. Ibid. Vol. II p. 68. Finally Art. 23 of the Convention.

122. Report of the International Law Commission 1955 (A.O.R./X/supp. 9), p. 22.

123. As appears, it is most regrettable that the U.N. Secretariat Publication: Laws and Regulations on the Regime of the Territorial Sea (U.N. Leg.Ser. 1957) should not have been completed until a year after the completion of the I.L.C. work.

124. De Conferentie van de Verenigde Naties over het Zeerecht, Genève, 24 Februari - 28 April 1958 (Ministry of Foreign Affairs, publication No. 56) 1958, pp. 23–24.

125. Such is Slonim's reasoning; but he jumps to the conclusion that the Territorial Sea Convention may be interpreted as denying warships a right of innocent passage. Slonim, S., “The Right of Innocent Passage and the 1958 Geneva Conference on the Law of the Sea”, 5 Columbia Journal of Transnational Law (1966) p. 119.Google Scholar

126. SirGerald, Fitzmaurice, “Some Results of the Geneva Conference on the Law of the Sea”, 81 I.C.L.Q. (1959) at pp. 90–91.Google Scholar

127. I.L.C. Yearbook, 1955, Vol. I, p. 253.Google Scholar

128. Ibid. pp. 151–152.

129. I.L.C. Yearbook, 1956, Vol. I pp. 286–287 and 289–290.Google Scholar

130. Ibid. p. 272. See also supra pp. 55–56.

131. See C.M. Franklin, op.cit. pp. 134 and 135, and Butler, W.E., “The Legal Regime of Russian Territorial Waters”, 62 A.J.I.L. (1968) at p. 69.Google Scholar

132. M. Sørensen, op.cit. p. 235. This conclusion is shared by inter alia: Bowett, D.W., “The Second United Nations Conference on the Law of the Sea”, 9 I.C.L.Q. (1960) at p. 418CrossRefGoogle Scholar; Dean, A.H., “The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Seas”, 54 A.J.I.L. (1960) at p. 771Google Scholar; SirGerald, Fitzmaurice, “Some Results etc.”, 8 I.C.L.Q. (1959) at pp. 102–103Google Scholar; C.M. Franklin, op.cit. p. 133; Hydeman, L.M. and Berman, W.H., International Control of Nuclear Maritime Activities (1960), p. 260Google Scholar; Jessup, Ph.C., “The United Nations Conference on the Law of the Sea”, 59 Col.L.R. (1959) at p. 248Google Scholar; Johnson, D.H.N., “The Geneva Conference on the Law of the Sea”, 13 The Yearbook of World Affairs (1959) at p. 84Google Scholar; M.S. McDougal and W.T. Burke, op.cit. at p. 220; Mouton, H.W., “De Conferentie betreffende het Recht van de Zee, gehouden te Geneve van 24 Februari tot 29 April 1958”, 69 Marine Blad (1959), No. 1 at p. 69Google Scholar; Schwarzenberger, G., A Manual of International Law (5th ed. 1967), at p. 104Google Scholar; J.H.W. Verzijl, op.cit. p. 34.

133. Tunkin, G., “The Geneva Conference on the Law of the Sea”, International Affairs (Moscow), 1958, No. 7, p. 49Google Scholar. This reasoning is shared by the Communist Chinese author Liu who after establishing that the I.L.C. draft Article recognized the right of the coastal State to make the passage of warships through territorial waters subject to previous authorization writes the following: “At the Conference on the Law of the Sea held this year, this article was deleted. Nevertheless, all vessels of foreign states, including men-of-war, in passing through the territorial sea, must observe the relevant laws and regulations of the coastal state; this is a principle generally accepted by all nations and it is also stipulated in the convention adopted by the Conference on the Law of the Sea. Therefore, if the coastal state provides that the passage of foreign military vessels through its territorial sea must have its approval beforehand, they must not enter its territorial sea before they are permitted…” Liu, Tse-yung, “A Major Step to Protect China's Sovereign Rights”, Peking Review, No. 29, Sept. 16, 1958, p. 13.Google Scholar

134. C.M. Franklin, op.cit. p. 135.

135. Ibid. pp. 136–137.

136. See S. Slonim, op.cit. p. 120, and L.M. Hydeman and W.H. Berman, op.cit. p. 259.

137. Gidel observes in relation to previous notification: “La notification préalable serait une règle très gênante en pratique pour le passage dans certaines régions (par exemple l'Archipel grec)”. G. Gidel, op.cit. p. 284.

138. “Toutefois, il semble que la réglementation concernant le passage des navires de guerre puisse aller plus loin que celle concernant les navires de commerce, notamment en prescrivant aux navires de guerre de tenir certaines routes même en dehors des strides nécessités de la securité de la navigation’. G. Gidel op.cit. p. 286.

139. Fitzmaurice ‘Some results, etc.” p. 100, considers that the words “without discrimination” in Article 16 para. 3 have the effect that any suspension of the right of innocent passage should be applicabl to all foreign ships. If by this he means to say that no distinction should be made as to the type of ships, we cannot share his opinion. Discrimination is a notion that can only be related to subjects of international law. Therefore, in this context, the prohibition of discrimination only applies to States, that is to the nationality of ships and not to the type of ships.

140. Multilateral Treaties in respect of which the Secretary-General performs Depositary Functions, 1971, ST/LEG/SER.D/4, Ch. XXI, pp. 362–363. O'Connell observes the following with regard to these reservations: “Where a ratifying party wishes to make known to other parties its interpretation of a provision of a convention it may do this by attaching an interpretative declaration. However, this is a unilateral act and may not achieve the object of having this interpretation accepted. Accordingly, the party may make its interpretation known in the form of a reservation, with the intention of limiting its consent to the extent of its own interpretation, and no further. The Soviet reservation respecting warships in the territorial sea attached to its ratification ot the Geneva Convention on the Territorial Sea and Contiguous Zone is such an interpretative reservation. The question that arises in such a case is whether this is a true reservation to which other parties may object. It is preferable to regard it as an interpretative declaration not binding other parties which fail to object”. O'Connell, D.P., International Law (2nd ed. 1970) Vol. I, p. 239Google Scholar. Reservations submitted by Colombia, Iran and Tunisia at the time of the signing of the Convention are also to the effect that the right of innocent passage of warships may in certain cases be suspended. These three States have not yet ratified the Convention.

141. Multilateral Treaties in respect of which etc., Ch. XXI, p. 363. On August 5, 1960 the Soviet Union adjusted its legislation to this reservation to the Convention: foreign warships may pass through the Soviet Union's territorial sea after previous authorization. (See Article 16 of the “Statute on Protection of the National Boundary of the U.S.S.R.”) Barabolya, P.D. et al., Manual of International Maritime Law, Part. I (1968), p. 51.Google Scholar

142. Multilateral Treaties in respect of which etc., Ch. XXI, p. 362.

143. United Nations Conference on the Law of the Sea, Volume II, p. 127.

144. Ibid, pp.71 and 72.

145. Multilateral Treaties in respect of which the Secretary-General performs Depositary Functions 1971, Ch. XXI, p. 364–366.

146. This reservation read: “… the Government of the Tunisian Republic does not consider itself bound by the provisions of Article 16, paragraph 4 of this Convention”. Multilateral Treaties in respect of which etc. Ch. XXI, p. 363.

147. I.C.J. Reports 1949, p. 99.

148. Investigation into the political factors at the root of these changes is outside the scope of this study.

149. Jessup says in this connection: “The debates in the Conference would naturally contribute further evidence of what states consider to be a general practice accepted as law”. Jessup, Ph.C., “The Geneva Conference on the Law of the Sea; a study in International Law-making”, 52 A.J.I.L. (1958) at p. 732.Google Scholar

150. See supra p. 57 n. 119.

151. Besides the Soviet bloc countries a number of Afro-Asian States voted against. The numerous Afro-Asian countries that acquired independence after 1958 will certainly include some which do hot recognize the right of innocent passage of warships through territorial waters. (Communist) China made it clear that it does not recognize such a right-in section 3 of the “Declaration on China's Territorial Sea” of August 1958. See Peking Review, No. 28, Sept. 9, 1958, p. 21.

152. I.C.J. Reports 1949, p. 22.. Cavaré thinks that the Corfu Channel Judgment may be interpreted extensively: “Toutefois, il semble que la C.I.J. dans l'affaire du Détroit de Corfou fond (arrêt du 9 avril 1949), dont la solution donnée pour les détroits semble extensible au régime de la mer territoriale, considère le passage des navires de guerre eux-mêmes comme l'exercice d'un droif”. Cavaré, L., Le Droit International Public Positif, Vol. II (1951), p. 500.Google Scholar

153. McDougal and Burke arrived at this conclusion, op.cit. p. 221.

154. Oppenheim, L.: International Law, Vol. I (8th ed. by Lauterpacht, H., 1955) p. 494.Google Scholar