The ICJ and the Evolution of International Law by Karine Bannelier Theodore Christakis Sarah Heathcote

Author:Karine Bannelier, Theodore Christakis, Sarah Heathcote
Language: eng
Format: epub
ISBN: 9781136619304

11.4.2 Transit passage by warships

Given the issues and sensitivities associated with innocent passage by warships, it is not surprising that similar and even more acute issues arise in the context of transit passage through international straits. This is illustrated by the pre-LOSC codification efforts in relations to straits, and the ongoing sensitivities associated with naval navigation through pivotal ‘choke points’ which have persisted. The 1936 Montreux Treaty55 is a prominent illustration of a pre-LOSC initiative to address questions of navigation through an international strait by warships containing a range of measures which made distinctions between different types of naval vessels depending on their capacity and size, flag of origin, and overall maximum aggregate tonnage of a naval force exercising passage. A right of transit through the straits could be enjoyed with or without significant limitations and constraints, though any transit was to be preceded by notification to Turkey.56 The Corfu Channel case is another prominent example in this respect given the ICJ directly endorsed the innocent passage by warships through an international strait without prior authorisation.57 With an obvious reference to the Montreux Treaty, the Court observed that: ‘Unless otherwise prescribed by an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace.’58

These pre-LOSC precedents need to be measured against the impact of the convention recognising the legitimacy of a 12 nm territorial sea and the impact of that upon the high seas corridor which would have once existed through a number of international straits around the world. The effect of the 12 nm territorial sea was that 116 international straits potentially became enclosed within a territorial sea which even though subject to the regime of innocent passage had the potential to place considerable constraints upon the freedom of military operations and especially the capacity of navies to speedily move from one maritime domain to another.59 Particularly sensitive strategic ‘choke points’ where maritime traffic converges to move from one ocean or sea to another include the Straits of Gibraltar, Dover, Hormuz, Malacca, Sunda, Lombok, and Formosa (Taiwan).60

The LOSC makes clear that transit passage is a right enjoyed by ‘all ships’ with respect to straits used for international navigation where warships pass through the territorial sea between one part of the high seas or EEZ and another part of the high seas or EEZ.61 Warships while engaged in transit passage are bound by the same constraints as merchant ships. Two particular constraints apply to warships. The first is that they are to refrain from any activity constituting a threat or use of force against the coastal State, and likewise refrain from any activities not incidental to their normal mode. The second of these is that they are to comply with generally accepted international rules and regulations regarding safety of life at sea and pollution prevention.

Of particular significance here is what constitutes ‘normal mode’ of operations for a warship and when would such operations be considered to cross the boundaries so as

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